By Simran Upadhyay
Introduction
Recently, the in-house probe panel dismissed sexual harassment allegations instituted against the former chief justice of India, Rajan Gogoi.[1] The Supreme Court, without adequate reasoning, alluded that it did not find any substance in the matter.[2] The judiciary also seemed to have bought into the societal inclination of disbelieving the victim, by engaging in judicial stereotyping.
Judicial stereotyping is when judges perpetuate harmful stereotypes by adopting and relying on society’s stereotypical definitions of groups or categories of persons, and assigning specific attributes to such individuals; opening up scope for miscarriage of justice.[3] This kind of conduct affects the integrity of the justice system by re-victimising the oppressed. This stereotyping is not limited to entertaining and perpetuating gender bias, but also includes within its ambit discrimination based on class, caste, religion, and ethnicity.[4]
One may point to several examples of judicial stereotyping by the Supreme Court of India (hereinafter, ‘SC’). The influence of the society’s biases and judges’ own pre-conceived notions on judicial decision-making prevents the judiciary from rendering judgements that challenge the normative suppositions of gender and other stereotypes. In light of this, through this blog post, I seek to explore and criticise certain selected SC judgements that have relied on conventional stereotypes based on gender. Further, I have suggested certain measures, which should be employed to eradicate the influence of stereotypes from adjudication.
Stereotypes based on Sex
The decision of the court in the Mathura rape case, reflected judiciary’s misogynist tendencies, as it acquitted the accused solely because the teenage victim did not have any marks of injury and was purportedly habituated to sexual intercourse.[5] This judgement was widely criticised by women’s rights groups as well as legal scholars.[6]
The constant protests and pressure from the society brought in certain amendments within our penal codes.[7] Despite such reforms, judges still ascribe to the stereotypical norms while imparting justice. In Mahmood Farooqui case,[8] the accused performed oral sex on the complainant despite her resistance.However, theDelhi High Court acquitted Farooqui of charges of rape, by observing, “a feeble no means a yes.”[9] On appeal, the judges at the SC refused to interfere with the said finding, on the pretext that the case was well decided.[10] It turned a blind eye to other cogent factors in favour of the prosecutrix,[11] and instead claimed that the woman went along by faking an orgasm.[12] The judges’ inappropriate remarks while dismissing the appeal fortified the stereotype that there is a presumed consent to have sexual intercourse, when you allow the person to make a drink for you.[13]
At times, judges have made generalised assumptions about women, in keeping with the stereotypical labels assigned to them by the society. In Raja v State of Karnataka,[14]the Court acquitted the accused, since the woman, post gang rape, had a vengeful attitude unlike a submissive victim. Further, when the victim’s roommate alleged that she was a sex worker, immediately the Court asserted that a woman’s complaint, alleging sexual assault, cannot be taken as gospel truth.[15] This goes against the principle enunciated in Section 114 A,[16] where if the fact of sexual intercourse having taken place between the accused and the prosecutrix is proved, and the prosecutrix alleges that she did not consent to such intercourse, the Court is bound to presume absence of consent. It also portrays how judges assign labels such as “meek”, “submissive”, “fragile” etc., to women and look down upon sex workers by prescribing to notions about good versus bad women. It reinforces patriarchal views that good women are pure and untainted,[17] while their bad counterparts are considered lascivious and decadent.[18] Thus, these judgements rely on the stereotypical notion that a promiscuous woman invites trouble and is not free of blame, and so the accused should be set free.
Stereotypes based on Work
In the case of Nargesh Meerza,[19] the SC’s decision exposes a patriarchal mind-set. By upholding that a four-year prohibition on airhostess marrying, after joining service is a reasonable basis of classification under Article 14.[20] This was justified in defence of successful marriages and family planning.[21] This perpetuated the stereotypical notion that such responsibility to have a successful marriage and plan the number of children solely lies upon the shoulder of women. Also, males being bread earners were not subject to any such service condition, and thus, would not be terminated from service for getting married early. It was only years later, Chandrachud J. used the anti-stereotyping principle under Article 15 to reject this position.[22] However, Chandrachud J.’s viewpoint is not enough as it was not reflected in the majority opinion.
In the case of Messrs Mackinnon v. Audrey D’Costa,[23] the SC did uphold that female stenographers are entitled to same salary as their male counterparts in a matter under the Equal Remuneration Act.[24] However, in the end, it went on to observe that discrimination arises when both male and female employees do the same kind of work. It stated that there is no discrimination in cases where men engage in arduous activities of loading and unloading, which women are not capable of. [25] Hence, the judgement exhibited society’s perception of co-relating masculinity with the performance of arduous activities. [26] Such an observation was uncalled for as the decision did not depend on the same.
Silence on Sex Equality Principles
In many instances, courts while passing judgements favourable to women refuse to deliberate upon sex equality principles that could grant better legal rights to them.[27] For example, in the case of Sarla Mudgal v. Union of India,[28] the Court considered the second marriage of a convert male to be void on statutory grounds, rather than declaring polygamy to be unfair when simultaneously polyandry or mutual consent of all the partners are not recognised under the law.[29] Again in Shayara Bano case,[30] the court only looked at how triple talaq was not an essential religious practise, rather than enunciating how the practice was gender discriminatory under Article 15.[31]
Reinforcing Stereotypes through Language
Language also plays a role in solidifying gender stereotypes. Remarks such as “crimes against the body of a woman which is her own temple”,[32] “purest treasure is lost”, [33] “rape victim feels a deep sense of deathless shame”[34] disseminate the idea that women’s dignity is synonymous to her; it fortifies the societal outlook that when a woman is raped, it is against the honour of her family more than an invasion of her bodily autonomy and integrity.[35] The Apex Court has often repeated such remarks. [36] Being raped is a horrible thing but not because the victim is less dignified in the eyes of the society, but because it is an offence against her bodily autonomy, which is her right under Article 21.[37]
Observations of Court’s dictum also portray how they tend to revolve around the conventional gender roles of men and women. In Narendra v K. Meena, [38] the court pronounced that a wife who forces her husband to leave his family, inflicts cruelty on him, and is a ground for divorce. In arriving at such a dictum, the court made some regressive observations, such as, normally within Indian culture son is given education to maintain his parents, [39] and so no son would like to be separated from them.[40] First, these comments do not adhere to gender-neutral terms and imposes this virtuous duty on men to maintain old parents and their own families as the sole bread earners of the family. Second, by using the word “normal”, the Court perpetuates the idea that women bread earners are an aberration in the Indian culture. Third, it considers a married daughter’s separation from her family to be just unlike that of a son. There are several such instances where Indian courts have made similar stereotypical assumptions gendered division of labour in the Indian household.[41]
Reinforcing Stereotypes through Power Imbalances
Cases of sexual harassment and notions of patriarchy are obvious markers of skewed power dynamics. The recent dismissal of sexual allegation against Ranjan Gogoi on the pretext of lack of substance to hold him responsible represents the power imbalance that has seeped into the judiciary. Ranjan Gogoi, having the upper hand, quite meticulously converted the harassment case, to a matter of public importance, which was an attack on the independence of judiciary, and an attempt to destabilise his post. Above all, the court defied due process of law[42] and used its power to engage in the classic stereotype of disbelieving and disregarding a female victim, treating the allegations as just figments of imagination.[43]
Way Forward
The analysis presented above displays a troubling pattern of judgements riddled with harmful stereotypes. Taking a note of this, it is necessary to undertake certain measures that could dismantle such inherent bias, and sensitise judges on these matters.
First, India can make a Gender Audit Report, just like Kenya did[44] to see how sensitive judges are towards gender issues. Such audit reports will enlighten Indians about the deep-seated stereotypes prevalent in the judiciary. Consequently, to avoid being criticised in such reports, judges will actively try to pronounce judgements that promote equality for all.
Second, the appointment of a diverse and meritorious bench representing intersectional voices is essential rather than a bench being majorly occupied by male members. [45] An all-inclusive judiciary will challenge perspectives that only represent upper caste, cis-gendered male views. History stands testament to the fact that presence of women in decision-making has aided in pronouncing gender-sensitive landmark cases;[46] hence a diverse bench could do wonders.
Third, counselling of judges by experts from distinct fields, coupled with discussions of lived experiences of individuals will help them realise the archaic notions ingrained within the judiciary and the problematic consequences thereof.[47] Further, an academic curriculum in law schools, [48] which promotes an inclusive space for academic discussions and which subjects decisions to academic criticism, will help debunk harmful stereotypes and identify problematic opinions.
Fourth, just like the feminist judgement project in India, that re-writes key judgements from a feminist perspective,[49] India should aim at establishing more projects that confront harmful stereotypes. These projects could represent diverse voices of the society, such as Dalit’s, so that the judges are made aware of the poor decisions that affect the oppressed.
Fifth, Indian laws are discriminatory, [50] gender biased, [51] gender insensitive[52] and in the process of adhering to such archaic laws, judges subconsciously take decisions that perpetuate societal myths. In such circumstances, the legislative bodies must reform the out-dated laws, and introduce gender-sensitive anti-discriminatory policies,[53] which provide safeguards to tackle intersectional sexes of discrimination. Such exhaustive guidelines will ensure judges cannot deflect from the law and are not guided by conventional norms. In the absence of legislative guidelines, the SC can also use its power under Article 142[54] to do complete justice rather than following the derogatory laws.
Conclusion
The picture is not always as gloomy as the cases discussed above. In many instances, the Court has pronounced decisions that question orthodox perceptions. [55] Further, certain recent judgements by Chadrachud J have augmented the growth of the constitutional feminism that brings the anti-stereotyping lens to gender issues.[56] However, such cases are few and limited.
The SC being the apex court needs to be ahead of its times to guide society towards a better future rather than being influenced by the societal belief structure. Further, it should uphold the integrity and equality of all sexes, classes and castes. Judgements that mirror the degrading morals of the society reinforce stereotypes within the judiciary. This leads to a vicious cycle, as the incorrect precedents of the Apex Court compel the lower courts to adhere to such stereotypes or provide no impetus to rise above and beyond such stereotypes.
Even the contemporary cases, [57] which have been decided through a conventional lens, leave the public in awe and put a stamp on the limited progress made by the Court in shattering the stereotypical norms. Hence, it is necessary to bring about substantial changes within the judiciary to ensure that the SC does not disseminate notions that hamper the fabric of our society.
The author, Simran Upadhyay, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Japnam Bindra, In-house probe panel clears CJI Ranjan Gogoi in sexual harassment case, Live Mint, May 7, 2019, available at https://www.livemint.com/news/india/sc-inquiry-panel-dismisses-complaint-of-sexual-harassment-against-cji-gogoi-1557144334119.html (Last visited on November 27, 2020).
[2] Sruthisagar Yamuna & Ipsita Chakravarty, Interview: ‘I’ve lost everything. Financially, mentally, everything,’ says ex-SC staffer in CJI case, Scroll.in, May 9, 2019, available at https://scroll.in/article/922751/interview-ive-lost-everything-financially-mentally-everything-says-ex-sc-staffer-in-cji-case (Last visited on November 27, 2020).
[3] Simone Cusack, Eliminating judicial stereotyping, June 9, 2014, available at https://rm.coe.int/1680597b20#:~:text=’Judicial%20stereotyping’%20is%20the%20practice,their%20failure%20to%20challenge%20stereotyping (Last visited on November 27, 2020).
[4] Id.
[5] Tuka Ram & Anr v State of Maharashtra, 1979 AIR 185.
[6] Letter sent by Upendra Baxi, Raghunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar to the Chief Justice of India, available at https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf (Last visited on November 27, 2020).
[7] The Criminal Law (Amendment) Act of 1983; The Criminal Law (Amendment) Act of 2013.
[8] Mahmood Farooqui v State (NCT of Delhi), 2017 SCCOnLine Del 6378.
[9] Id., ¶ 78)
[10] Madhavi Goradia Divan, For No to Be No, The Indian Express, October 4, 2020, available at https://indianexpress.com/article/opinion/columns/for-no-to-be-no-consent-consensual-physical-relationship-intimacy-rape-sexual-assault-mahmood-farooqui-case-4873167/ (Last visited on November 27, 2020).
[11] Manasi Chaudhari, Aziz Ansari, Mohammad Farooqui and the Dangerous Myth of a ‘Right’ Way to Resist, 53(13) Economic and Political Weekly (March 31, 2018).
[12] Utkarsh Anand, ‘She Said I Love You, Kissed Him’: Argument That Led to Reprieve for Mahmood Farooqui in SC, January 19, 2018, available at https://www.news18.com/news/india/she-said-i-love-you-and-even-kissed-him-the-argument-that-led-the-sc-to-decide-in-favour-of-peepli-live-director-mahmood-farooqui-1636829.html (Last visited on November 27, 2020).
[13] Id
[14] Raja v State of Karnataka, (2016) 10 SCC 506.
[15] Jahnavi Sen, Supreme Court’s Expectations of ‘Usual’ Behaviour After Rape are Misguided, Say Lawyers, The Wire, October 17, 2016, available at https://thewire.in/gender/supreme-court-rape-sex-work (Last visited on November 27, 2020).
[16] The Indian Evidence Act, 1872, § 114A.
[17] Emily M. Boyd, The Good Girl—Bad Girl Dichotomy: Sexual Double Standards, STDs, and Stigma Management, 33(2) Symbolic Interaction (2010).
[18] Id.
[19] Air India v. Meerza, A.I.R. (1981) 4 SCC 335.
[20] The Constitution of India, 1950, Art.14.
[21] Air India v. Meerza, A.I.R. (1981) 4 SCC 335.
[22] Navtej Johar v Union of India (2018) 10 SCC 1, ¶ 432 – 433; Gautam Bhatia, Sex Discrimination and the Constitution – VI: The Discontents of Air India v Nargesh Mirza, Indian Constitutional Law and Philosophy, August 12, 2015, available at https://indconlawphil.wordpress.com/2015/08/12/sex-discrimination-and-the-constitution-vi-the-discontents-of-air-india-v-nargesh-mirza/ (Last visited on November 27, 2020).
[23] Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281.
[24] The Equal Remuneration Act, 1976.
[25] Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281.
[26] Kalpana Kannabiran, Judicial Meanderings in Patriarchal Thickets: Litigating Sex Discrimination in India, 44(44) Economic and Political Weekly (2009).
[27] Catharine A. MacKinnon, Sex equality under the Constitution of India: Problems, prospects, and “personal laws”, 4(2)International Journal of Constitutional Law (2006).
[28] Sarla Mugdal v. Union of India, (1995) 3 SCC 635.
[29] MacKinnon, supra note 27.
[30] Shayara Bano v. Union of India, (2017) 9 SCC 1.
[31] The Constitution of India, 1950, Art. 15.
[32] State of M.P. v. Madanlal, (2015) 7 SCC 681.
[33] Id.
[34] Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, Cambridge: Cambridge University Press (2016) ; G.S. Bajpai and Raghav Mendiratta, Gender Notions in Judgments of Rape Cases: Facing the Disturbing Reality, 60 Jili (2018) 298.
[35] Usha Tandon and Sidharth Luthra, Rape: Violation of the Chastity or Dignity of Woman? A Feminist Critique of Indian Law, FICHL Policy Brief Series No. 51 (2016).
[36] State of M.P. v. Basodi, (2009) 12 SCC 318 ; State of M.P. v. Sk. Shahid, (2009) 12 SCC 715 ; State
of M.P. v. Bablu Natt, (2009) 2 SCC 272 ; Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.
[37] Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1 ; State of M.P. v. Basodi, (2009) 12 SCC 318; State of M.P. v. Sk. Shahid, (2009) 12 SCC 71.
[38] Narendra v K. Meena, 2016 9 SCC 455.
[39] Id., ¶12 -13
[40] Id., ¶14
[41] State of Maharashtra v Vijay Dhondiram Shince, 2018 SCC OnLine Bom 2047 – In a case of suicide by wife, the court observed that asking wife to the do the household chores properly did not amount to ill-treatment. In Ranjith P.C. v Asha Nair P, 2020 SCC OnLine Ker 1751, the court observed, “making a daughter-in-law do household work was not something unusual. Thus, both the cases establish that stereotypical gender roles of cooking, cleaning can only be ascribed to woman.
[42] Siddharth Varadarajan, From the Supreme Court, a Reminder that Justice Was Sacrificed to Save a Judge, The Wire, January 23, 2020, available at https://thewire.in/law/supreme-court-justice-sacrifice-sexual-harassment-allegations-ranjan-gogoi (Last visited on November 27, 2020) ; Gautam Bhatia, Handling of Harassment Complaint Against CJI Perpetuates Existing Power Imbalance, The Wire, May 1, 2019, available at https://thewire.in/law/cji-ranjan-gogoi-sexual-harassment-case (Last visited on November 27, 2020).
[43] Flavia Agnes, Are Women Liars? Supreme Court’s Judgment Ignored Lived Reality of Married Woman, 52(35)Economic Political Weekly (2017).
[44] The Judicary Gender Audit 2019, available at https://www.ngeckenya.org/Downloads/Judiciary_Kenya_Gender_Audit_Dec.pdf (Last visited on November 27, 2020).
[45] Christina Zampas and Johanna B, Background paper on the role of the judiciary in addressing the harmful gender stereotypes related to sexual and reproductive health and rights, ochr, available at https://www.ohchr.org/Documents/Issues/Women/WRGS/JudiciaryRoleCounterStereotypes_EN.pdf (Last visited on November 27, 2020).
[46]In Government of Andhra Pradesh v. P B Vijay Kumar, AIR1995 SC 1648 ; Vishakha v State of Rajasthan AIR 1997 SC 3011 ; A Jayachandra v. Aneel Kaur AIR 2005 SC 534 ; PylaMutyalamma @ Satyavathi v. Pyla Suri Demudu (2011) 12 SCC 189 ; Aruna Ramachandra Sanbaug v Union of India (2011) 2 SCR 869.
[47] Nancy H. Hendry, Gender –related Issues in the Judiciary, UNODC available at https://www.unodc.org/documents/ji/knowledge_products/Gender_Paper_FINAL_DOHA.pdf (Last visited on November 27, 2020).
[48] Id
[49] Indian Feminist Judgements, available at https://www.indianfeministjudgmentsproject.com/ (Last visited on November 27, 2020).
[50] MacKinnon, supra note 27.
[51] Choki v. State, A.I.R. 1957 Raj 10 (laws entitling women but not men to bail) ; Girdhar v. State, A.I.R. 1953 M.B. 147 ( laws making it a crime to offend the modesty of a woman but not a man).
[52] Times Of India, SC declines to entertain PIL to Make Rape Gender-Neutral Offence, November 12, 2018, available at http://timesofindia.indiatimes.com/articleshow/66589944.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last visited on November 27, 2020).
[53] Ruci Chaudhury and Arunima Nair, Because of ‘Sex’: The US and India on Workplace Discrimination Against LGBTQI Persons, June 30, 2020, available at https://thewire.in/law/india-us-supreme-courts-lgbtqi-workplace-discrimination (Last visited on November 27, 2020) – Sashi Thaoroor had introduced the Anti Discrimination and Equality bill, 2017, which provided protective grounds to deal with intersectional sexes of discrimination. However, the bill lapsed.
[54] The Constitution of India, 1950, Art. 142.
[55] State of Uttar Pradesh v. Pappu, (2005) 3 SCC 594 ; Puran Chand v. State of HP, (2014) 5 SCC 689 ; Arun Garg & Ors v Hotel Association of India, (2008) 3 SCC 1.
[56] The Secretary, Ministry of Defence vs. Babita Puniya and Ors, MANU/SC/0194/2020 ; Union of India v. LT. CDR Annie Nagaraja, 2020 SCC OnLine 326; Navtej Johar v Union of India (2018) 10 SCC 1.
[57] Mahmood Farooqui v State (NCT of Delhi), 2017 SCCOnLine Del 6378 ; Narendra v K. Meena, 2016 9 SCC 455 ; In Re: Matter of Great Public Importance Touching Upon the Independence of Judiciary, 2019 SCC OnLine SC 601.
The Journal of Indian Law and Society 