Monday, December 4, 2023

Explainer: What does Supreme Court’s handbook on gender stereotypes say?

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The Supreme Court of India has released a handbook to combat gender stereotyping which, as it has observed, clouded the judgments of several High Courts in the matters related to sexual and gendered violence.

“We may rely on stereotypes inadvertently, because stereotypes are often internalized and ingrained in our thinking due to societal, cultural, and environmental conditioning. However, challenging and overcoming stereotypes is essential to ensuring an equal, inclusive, and compassionate society,” read the document.

Citing several cases of the near and distant past, the apex court suggests an intermittent reading of this handbook by all law practitioners and the judges of the courts high and low. It argues that the first steps towards providing justice encoded with the Constitution of India which provides equality to all citizens irrespective of the social or gendered group they belong to, is by sensitive use of Language.

In the foreword written by the Chief Justice of India, Dr. D.Y. Chandrachud, he states, “The language a judge uses reflects not only their interpretation of the law, but their perception of society as well. Where the language of judicial discourse reflects antiquated or incorrect ideas about women, it inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender.”

Use of words like Bastard, Affair, Adulteress, Dutiful Wife, Eve Teasing, Faggot, Harlot, Hooker, Effeminate among several others listed under the column titled, Stereotype Promoting Language are hereby referred as ‘incorrect’ usage by the law practitioners. These words face their alternatives in the column just beside. For example, Eve teasing, which bears gendered tone to it is advised to be replaced by ‘Street Sexual Harassment.’

Citing the judgment of a High Court that used the term “Dutiful Wife” to denote a wife’s instigation which led to her husband beating her while also saying later in the same judgment “the husband has no right to beat her,” this is what the Supreme Court has to say: “This example demonstrates how even when arriving at a legally correct outcome,
judicial reasoning can reinforce harmful stereotypes about the roles of women. The
Judicial reasoning reinforces the stereotype that it is a woman’s exclusive responsibility to perform household chores and dress according to her husband’s expectations.
Further the use of language such as “dutiful wife” only accentuates these harms.”

Throughout the handbook, its writers carefully scrutinize incidents where a woman’s gender roles were given primal importance rather than the evidence collected of the offense reported.

For example, it recounts when the Kerala High Court exercised ‘parens patriae’ to allow the parents of a 24 year old woman to have the final say in her marital affairs. The woman had married and moved away from the parents, which prompted them to file Habeas Corpus in the court seeking production of their daughter.

The Supreme Court reversed this decision later noting, “The High Court was of the view that at twenty-four, [she]“is weak and vulnerable capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases.”

The handbook states directly or indirectly many times that if a woman is rather seen as a daughter, a wife, a mother, a girlfriend or any other nouns which strips her off her own individual identity, then it bleaks the chance of justice being delivered.

Under the section, Stereotypes concerning sex and sexual violence, the handbook takes a dig at the judges being swayed away by their own morality concerning the dress and sexual behaviours of a woman.

“The clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. Women are capable of verbally communicating with others and their choice of clothing represents a form of self-expression that is independent of questions of sexual relations. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way.”

It argues further, “Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.”

It stresses on the fact that a court’s behavior is crucial to the process of bringing about equality between gendered identities in the society.

“No stigma, like the one cast in the present case (State of Punjab v. Gurmit Singh) should be cast against such a witness by the courts, after all it is the accused and not the victim of sex crime who is on the trial.”

It is without a shred of doubt that the Supreme Court sends a message loud and clear that the courts have a singularly significant duty to dispel judgments that do not ring a bell from centuries old tradition and culture but rather from a very significant book called the Constitution.

However, getting around to what it defines under Section A “Understanding Stereotypes” as stereotypical judgment: “Stereotypes are typically held against individuals by virtue of their membership of a group. People are constantly subjected to stereotypes based on their nationality, region, caste, gender, disability, sexuality, skin color, physical appearance, and race.”

While it discusses the role of caste and lower income groups in the stereotyping of individuals, (Bhanwari Devi Case) the handbook seems to miss a key factor that has defined Indian politics in the last few decades- religion. While it can be observed that almost every individual must come under one of the criterion listed above, it is in the wake of numerous incidents, whereby The Prime Minister of the country in an election rally openly suggests recognising “these people by their clothes”, and recently when actually one RPF officer killed three Muslim men after recognising them from their identity. It is in the wake of an attack on a Christian Headmaster in Pune by the Bajrang Dal on frivolous grounds and when young Hijabi girls are seen being hounded by a mob and being denied admission to schools and workplaces- that we miss that one word which too deserves to be in this criterion of the perils of systemic stereotyping.

The handbook concludes by emphasizing on the use of inclusive language and conscious avoidance of the use of stereotypes in decision-making.

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