Court Handbook: A Step Forward for Gender Just Society | Ram Kumar Thakur, Kaushiki Arha

The Supreme Court of India under Chief Justice, Justice D. Y Chandrachud recently released a landmark document titled Handbook on Combating Gender Stereotypes. The handbook is supposed to serve as dossier of referral for judges and legal fraternity as a whole for confronting gendered stereotypes. The handbook opens us up to a progressive legal dialogue on acknowledging the essentialised and prejudiced understanding of gender in both latent and manifest terms. The document places the onus of responsibility on both the individual and the institution of judiciary to actively recognise the implicit and unconscious biases that play out in adjudication. Preconceived notions about people and groups regarding human nature, social location, use of archaic language undermines the robustness and intellectual rigour of courts of law in deciding cases or writing judgements for posterity. It recognises the constitutionally bound burden of judges to discharge their duties with “impartiality and objectivity,” which requires them to overcome personal biases regularly expressed through consistent ‘judicial reasoning’ premised on gendered stereotypes.

The handbook, as the foreword by the Chief Justice suggests, is directed towards the legal community and judges in particular, with the aim to redress the prevalence of gender-based stereotypes in judicial process and outcome. As the CJI rightly notes, “language is critical to the life of the law” when looking at the impact of language in determining legal outcomes. One cannot reduce language to a means of articulation, it plays an important function in revealing the internal biases of individual members of the legal system, most importantly the judges. The Handbook is the first step in a long journey to a transformed legal system that does not retraumatise victims of gender-based violence in the very process of getting justice.

Omissions and Commissions

Law envisions the world external to it, the outside, the real world and is tasked with regulating it. This world is viewed from within legal bounds, “the real world is a virtual world as seen from inside the law, it needs the mediation of judicial phrases to negotiate this ‘messy’ reality.” In the interplay of these realities the role of legal discourse is not limited to adjudicating an external reality but constituting it through regulation of violations by governing the behaviour of individuals. However, in naming offences law attests to and recognises this reality, stereotypes against any community within legal procedures are more dangerous as the very nature of law and by extension judiciary adjudicates the permissibility of behaviours, speech, acts and in some instances thoughts. The most seemingly innocuous gestures can be held violative of the law and to maintain a commitment to impartiality and objectivity, legal discourse must not allow any prejudicial remarks or beliefs to enter the adjudicative process.

The handbook states that, “if harmful stereotypes are relied on by judges, it can lead to a distortion of the objective and impartial application of the law.” What fails to find a mention in the handbook is that while judicial naming is powerful, so are elisions. In the handbook, a detailed list of common stereotypes in the form of preconceptions, offensive terms and commonly held beliefs find a mention as well as an explanation on how they can be corrected. What is not mentioned is also of importance; given the political climate of the nation at large and the allegations of majoritarian bias against the judiciary in particular, it is alarming to observe that stereotypes based on religion and targeting of women from religious minorities do not find a mention. The sub-section of Understanding stereotypes titled, “impact of stereotypes on judicial decision making” maintained a concerning silence on how historically, the apex court itself has been complicit in taking questionable positions in matters involving violence against Dalit and Muslim women. While naming stereotypes in the handbook based on nationality, region, caste, gender, disability, sexuality, skin colour, physical appearance and race, the omission of religion as a marker is unfortunate.

Of the three stipulated ways on how this document aims to combat gendered stereotypes one states that the handbook helps by, “identifying common reasoning patterns that are based on gender stereotypes.” It would not be an overstatement to argue that gendered violence, especially sexual violence such as rape is a manifestation of structural issues and not simply the lust of an individual deviant as the courts regularly portray it to be. Often read as a crime of sexual passion and irrepressible urge, rape has to do more with power, with eliciting humiliation and submission from the victim. Rape, sexual assault and naked parading in cases of mass violence such as the 2002 riots and the ongoing violence in Manipur showcase how rape is used as an instrument of victimising entire communities and not just the victims themselves, that the violence emanates from hate towards the entire community. Further the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act 1989, already defines the ambit of dehumanisation flourishing in society by naming the acts of violence women from these communities are frequently subject to. However, in its attempt to identify the harm caused by stereotypes the Handbook fails to demonstrate how stereotypes bolster hate towards marginalised communities rendering women exceedingly vulnerable to sexual violence, as a battleground of honour.

The handbook appears to have made an effort to reconstitute women at the level of judicial language, if it were to be successful then “career woman, chaste woman, seductress, slut, whore, woman of loose morals/ easy virtue/ promiscuous woman/ wanton woman” would all be called a woman. The handbook strikes at linguistic shortcuts to insert a woman’s character into judicial narrative, hopefully lawyers and judges alike would have to either change their ways or find different routes to accomplish this task. In an effort to restore the dignity and humanity of individuals from oppressed communities the handbook also suggests to replace the words, “hooker and prostitute” with the term “sex worker.” Ignorant or offensive terms with reference to the queer community have also found a mention such as removing the term “faggot” with “accurately describe the characteristic using a gender-neutral term.” In addition to the glossary there are 33 different stereotypes categorised as stereotypes on the “inherent characteristics” of women, “gender roles” of men and women and stereotypes used in the context of “sex and sexual violence,” which are also referred to as rape myths all of which are followed with explanations of how they distort the reality.

The overwhelming characterisation of sexual violence stipulated in the handbook presents it as an interpersonal commerce and not symptomatic of the pervasive atmosphere of women’s oppression operating in a matrix of criss-crossing identities. It is certainly necessary to highlight prejudicial treatment of acquaintance rape in courts in order to illustrate how circumstantial evidence is utilised to dispute the testimony of the victim and how the victim’s own character and past sexual history is valued in judgements as though it holds any evidentiary relevance to the allegation of rape. While it is undoubtedly imperative to challenge gendered stereotypes governing the prosecution of violence women are routinely subjected to; it is concerning that this violence when committed in extraordinary circumstances struggles to find a mention in the handbook. Women as a unified category suffer on account of these stereotypes which cripple their hopes of getting justice in a system of law predominantly written and practiced by men. Women however, do not exist as a unified category, they exist as Dalit women, Muslim women, tribal women, lesbian women, trans women and endless other collections of intersecting experiences from which gendered bias cannot be individually traced and remedied. It is therefore, necessary that any such handbook be mindful of the larger socio-political context within which women exist. Even when the handbook tries to build up on broad based understanding of gender, the confinement to specificity of women, inhibits the possibility of accounting for spectrum of sexualities and specific socio-political embeddedness of women subjected to ascriptive social power. Both the particular and universalistic note of inquiry and redescription needs more profound articulation than it does in the handbook.

Remembering Progressive Precedents

The handbook has also stated case law which has established progressive legal doctrines on how gender-based stereotypes can be combatted through law. While there are cases such as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat which categorise women under oppositional binaries of Western and Indian nature, thereby laying a ground for their conduct and how it is to be interpreted for legal purposes. This judgement argues that western women are more likely to file false complaints of rape as opposed to Indian women who are more afraid of losing their honour and social standing which follows levelling such accusations. The prevalence of this dichotomy is challenged by this handbook which refutes any inherent distinction between Indian and Western women.

We also find a mention of landmark judgements such as Joseph Shine v. Union of India, which “struck down the offence of ‘adultery’ under Section 497 of the Indian Penal Code;” State of Punjab v. Gurmit Singh as well as State of Himachal Pradesh v. Gian Chand, the Supreme Court rejected the contention that FIR of rape must be filed without delay and doing otherwise it may lead to creating doubt, it argued in the latter judgement that, “delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report.” Finally, the handbook also mentioned the landmark State of Jharkhand v. Shailendra Kumar Rai judgement which banned the inhumane pre vaginum test also commonly known as the two-finger test. These judgements are a reminder of a growing list of progressive precedents the victims can now bank on while seeking legal remedy in courts. Doctrinal law, even precedents set by the apex court seldom reach the grassroot practice of law in India however, initiatives such as the handbook have the potential to open up debates on sexual violence in the public domain well outside the confines of laws.

Conclusion

In the revolutionary political text, part of undelivered speech, i.e., Annihilation of Caste, Dr Bhim Rao Ambedkar put forward a simple and substantive vision of just society. He remarks that “a just society is that society in which ascending sense of reverence and descending sense of contempt is dissolved into the creation of a compassionate society.” The undelivered speech continues to echo the clamour for reconstitution of social relations based on universalist humanist framework of liberty, equality and fraternity embedded in dignity. To realise a compassionate society the onus lies at the level of both institutions and individuals to cultivate a new ethical order. In the Indian context the higher judiciary has a checkered history in upholding the rights and dignity of marginalised communities against structural inequalities. Between the crest and troughs of injustice, the Supreme Court has set a benchmark for transformative state and society through landmark judgements and guidelines on civil liberties, mob lynchings, arrest and bail, sexual violence and caste violence. All these initiatives have created for the possibility of some creative checks and balances within the institutional framework of justice.

The focus on patriarchal assumptions and prejudice based on supposedly inherent characteristics of women, gendered roles, stereotypes related to sex, sexuality and sexual violence allows for the scope of creative conversations to fight structural constraints in both language of law and its reasoning. The handbook under discussion precisely reiterates the intent, by spelling out caution and by envisioning dignified alternative vocabularies marked for posterity. Such efforts coming from the judiciary reiterates inward and outward-looking outlook, whereby values of objectivity and impartiality stand tall against encoded violations. While the enforceability of such broad corrective measures on challenging stereotypes at the level of state and society remains, the reformist zeal imagined through judicial decision-making affirming equal protection by laws appears promising. The promise of law through institutional design has to be critically interrogated so that the elisions embedded within do not get overlooked. The conscious omission and commission of what constitutes injustice, which stereotypes are acknowledged, counted and avoided, are subservient to the priority principles of design. Such an institutional framework and design equally carry the risk of conscious and unconscious exclusion of effacing multivalent realities. The handbook therefore needs to be seen as a significant intervention in public reasoning. However, the scope of expanding the framework of principles along multivalent axis appears to be fuzzy, considering the choices of case laws and identities it focuses and excludes.

The hard yard on the social context of generalities and specificity of functioning stereotypes needs to be named, acknowledged expansively and worked upon.

(Authors: Ram Kumar Thakur is Assistant Professor Political Science at Hindu College, University of Delhi and Kaushiki Arha is currently pursuing a PhD at Centre for Political Studies, Jawaharlal Nehru University)