The Indian judicial system is encountering a serious setback. In the independent India, the doctrine of rule of law positioned the judiciary as a powerful pole of democracy. In the course of time, there has been a drastic destruction of the lawfulness of the judiciary as a sign of honesty and integrity. The differing tugs between views of fairness and injustice have determined the forms of politics for settling cases which are repeatedly affected by a foreboding that does not oppose established ideas of gender stereotypes. One of the main insipid domains for visible injustice by the Indian judiciary has been with matters connected to gender violence cases. Be it brutality, sexual abuse or rape, the judges present a flawless demonstration for restoration of the community based on traditional gender stereotypes. The concept of chauvinism intertwines aspects such as societal ethics, chastity, sexuality, prestige and humiliation. In spite of changes introduced by the parliament, gender stereotypes and misbeliefs have been implanted in all levels of a gender violence case trial.
Gender stereotypes are established notions about different sexes in the society, because of their varying bodily, biological, emotional, sexual and communal tasks. Gender stereotyping is harmful if it leads to the infringement of rights and basic freedoms of an individual. Judicial stereotyping is the action of judicial officers assigning to a person certain fixed quality, features or characters only because he or she belongs to a specific category of people. Judicial stereotyping leads judges to arrive at an answer about issues in accordance with previously determined notions, instead of authentic facts and real examination.
This can result in serious negative outcomes. It can lead judges to misconceive or mishandle laws and additionally destroy their idea of the facts, influence their observation of who is a ‘victim’, and affect their opinion regarding the reliability of the witness. The distinctive authority of these judges means that they can grant stereotypes the complete importance and power of the law. It is paramount to keep in mind that such stereotyping does not only damage women survivors and victims of cruelty. It can as well cause injustice for male victims and also individuals who identify themselves as belonging to the LGBT community. Judicial stereotyping therefore destroy the fairness and probity of the judiciary.
Gender Insensitivity of the Judiciary
Conventionally, laws related to rape mandated that during the commission of the offence, the victim must have exhibited ‘resistance to the uttermost’. This theory shows the judges that any sign of consent, even consent to just a friendship, would rule out the essential amount of resistance from being met. In spite of numerous innovative verdicts by the Supreme Court, the traditional ideas of correctness carry on to influence the sentencing or liberation of the accused.
Another noticeable concept regarding the outlook of judges in Rape trials is the requirement for observable manifestations of pain and psychological suffering by the victim. This has to be interpreted with Section 280 of the Criminal Procedure Code which mandates that the sitting judicial officer should record the behaviour of the witness in the court book, during the examination. Hence, the choice on whether to trust the victim or not is decided based upon the judge’s notion of the demeanour of the victim, both during rape and the trial.
Recently, the High Court of Madhya Pradesh gave bail to an accused person of a sexual harassment case on the basis that the plaintiff who is the victim would tie a rakhi on his arm on Raksha Bandhan day. 1Vikram v State of Madhya Pradesh AIR 2020 The plaintiff will surrender her honour by readily receiving sweets and Rs 11,000 as present and also have trust in the oath of the accused to safeguard her for the years to come. In another case, since the victim became worn out and dozed off after the commission of the act, it was held by the Court that it is inappropriate for an Indian woman to do so. 2Rakesh B v State of Karnataka (Cr) 2427 of 2020 These intrinsic moralities which are supposed to be part of Indian womanhood are what patriarchy has established throughout these centuries.
The judges have also proposed in many cases that the rape victim be married to the accused, without even taking into consideration the right to life and dignity of the victim. This solution is in no manner any contribution or aid to the humankind. The general tenor that exists in these verdicts is how the judiciary is conceived with misogyny and numerous gender stereotypes. In yet another case, a Bihar Civil Court sent the survivor of gang rape to jail stating that she conducted contempt of court.
The only offence that she committed was that she had a nervous breakdown and an emotional outburst during a trial when the Court asked her to speak again and again about the incident that caused her grave suffering. It is pertinent to note that these events and poor verdicts are not lone incidents in the judicial history of India. Instead, they are fairly habitual.
India is a signatory to various international treaties and conventions like the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the United Nations Convention on Elimination of Discrimination against Women, etc. These treaties and conventions compel the states to safeguard the rights of survivors and victims of sexual harassment. For example, Article 7 of the ICCPR mandates that a person cannot be exposed to cruel, inhuman or degrading treatment under any circumstances.
The purpose of this article is to safeguard the integrity and the mental and physical dignity of the person. Article 5(a) of the CEDAW precisely states that suitable measures must be strictly adopted to eradicate actions which are in accordance with the idea of superiority or inferiority of any gender. Article 2(f) supports 5(a) and states that appropriate steps should be adopted to eliminate discrimination against women. The eradication of unjustified gender stereotyping is essential to be followed by all agencies of the state, also the judiciary.
Moreover, the CEDAW Committee has acknowledged that gender stereotypes can be addressed by way of rights stated in other international treaties or conventions also, like the right to a fair trial by an unbiased judicial system, given under Article 14 of the ICCPR.
In India, the law as it is positioned presently, after the amendment of the Criminal Law Act mandates a “voluntary unequivocal agreement” to find consent in cases of rape. It, in addition states that mere non-resistance by the victim will not establish consent. Similarly, Section 155(4) of the Evidence Act which stated that the sexual history of the victim would be taken as a factor for determining a case of rape was repealed in the year 2003.
Notwithstanding these changes, the court in the case of Mahmood Farooqui v. State of NCT of Delhi 3243 (2017) DLT 310, showed its narrow appreciation of consent by holding that a “feeble no may mean yes”. Even though that there is want of proper legislation in the country that especially recognizes judicial stereotyping, Article 14 of the Constitution which is the most important fundamental right, provides to all individuals equality before the law and equal protection of law and Article 15 (1) mandates that the state should not discriminate any individual on the basis of religion, race, caste, sex, etc.
The Article 39A mandates that states in India should advance justice to all individuals, on the basis of equal opportunity for all. This Article has been enshrined in our Constitution to make sure that chances for getting justice are not declined to any individual due to their economic or other disabilities. Furthermore, Right to a fair trial is also embodied in the Constitution of India as a part of the right to life and personal liberty under Article 21. In spite of all these provisions, it is evident from the judiciary’s stereotypical verdicts that India has not succeeded in realizing its duties towards combating sex prejudice.
Plan of Action – Recommendations
Access to justice is a human right in itself and is in addition an essential to the achievement of every other human right. However, numerous difficulties hinder access to justice. Recognizing judicial stereotypes and reinforcing the function of the judicial system in eradicating stereotypes is important to ensure that every individual’s rights are safeguarded without any bias.
Advocates of human rights can perform a significant part in stopping and also confronting such harmful gender stereotypes, and in making sure that the judicial system acknowledges and recognizes them and grants suitable amends. Eliminating gender discrimination from the system that one approaches for accessing justice, should be the chief concern.
Good legislations in India are repeatedly neglected because of their faulty administration. Following are some of the recommendations which can be adopted and implemented to bring gender sensitivity in the judicial system of our nation.
- Instructing and preparing judges and lawyers – on proper steering of gender-based violence cases. Judges should be trained on gender equality and rights of women especially those enshrined in the CEDAW. Training methods which are already existing for judges and public prosecutors regarding the rights of victims in cases of sexual harassment should be expanded to incorporate relevant sections under the Criminal Law Amendment Act, 2013 and also about medico-legal guidelines.
- Legal and regulatory changes- Legislations which aid in guaranteeing that the judicial officers observe the State’s international human rights duties and also which make sure complete regard for the right to equality and right to a fair trial are essential.
- Detect and examine judicial reasoning – Judicial reasoning should be inspected to make sure that judges are capable, free and unbiased and that they mandatorily observe their duty to arrive at conclusions based on facts and relevant legislations, and not based on stereotypes.
- Recommend for diversity among judges– to make sure that the judiciary constitutes all the communities and categories of people it aids.
- Create judicial capacity–strengthening the capability of judges by educating them to recognize wrongful gender stereotypes. Good law school education will play a significant role in eradicating gender stereotyping in the judicial system. It will also aid judges to:
- give required importance to the testimonies of women and oppressed categories of people,
- perceive the harmful effects of gender stereotyping, also how it will impede the right of survivors and victims to get justice,
- grant efficacious remedies.
The role played by the judicial system in strengthening the legal framework of our country is as significant as the legislations and policies themselves. In conclusion, the viewpoints of the society towards rape and the rape victim are directly contrasting. Alarmingly, rape is many a time considered to be initiated by the victim, through her actions, words or even mere existence. Similar to victims of other brutal offences, victims of rape also go through the dreadful charge of the bodily and emotional wound.
However, unlike others, they in addition go through the weight of safeguarding the lawfulness of their agony. The part played by a judge in a rape trial is important. The need of the society is that the verdicts of the judges should not only penalize the accused but also protect the victim. In the case of Naz Foundation v. Govt. of NCT of 4Delhi 160 Delhi Law Times 277, the Court emphasized the significance of endorsing the principles of equality and forbearance in the community, and not to exclude individuals due to previously established stereotypes.
Victims and survivors must be able to trust on a process independent from misconceptions and stereotypes, and on a judicial system whose fair-mindedness is not destroyed by these prejudiced beliefs.