Biased, Flawed, Misogynistic Bench and Bar?
Posted on : April 19, 2021Author : Pratyusha Das
“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.” – Henrik Ibsen[i]
Although the words were spoken in the 19th century, it still rings accurately to a large extent as the crude, stereotypical, misogynistic, and sexist remarks on the character of a woman have continued to surface, even from institutions that were supposed to safeguard and uplift them. Judiciary reflects the morals and principles of the society it serves and thus, dictates the perceptions. Its standpoint on societal issues like that of patriarchy performs a crucial role in the dispensation of justice, however, disturbing judgments and statements endorsing sexism and misogyny have been detected in many verdicts. Just like the philosopher Hannah Arendt termed ‘banality of evil’ in the context of Nazi leader Adolf Eichmann’s trial, violence against women and children in India has continued to slide into banality as misogynistic remarks are commonly being passed by people with legal authority.[ii]
Post-Independence, the postulate of the rule of law placed the judiciary as a strong pillar of democracy. Over the years, there has been an erosion of institutional legitimacy as a symbol of fairness and righteousness. The grey area of ‘soft justice’ and a discernible discomfort within the judiciary has been witnessed in the cases of violence against women involving sexual harassment and rape. The underlying misogyny runs in such a sublime fashion that it interweaves a complex discourse of public morality, sexuality, chastity, honour and shame. A few distinct judicial pronouncements are being used to understand the phenomenon and the fluctuations between the procedural and substantive notions of justice within our Indian courts.[iii]
The Trend of Misogyny in the Judicial Pronouncements
The regressive Patriarchy found its way back in 1972 when a tribal girl was raped in custody by two constables in a Police Station in Maharashtra. The Supreme Court in Tuka Ram v State of Maharashtra or the Mathura’s rape case acquitted the two accused policemen on the ground that the victim has raised no alarm, there was no visible injury mark on her person, thereby it could be assumed that she has consented and not protested, she is habituated to sex, `she might have incited the two drunk policemen’ and therefore no rape is committed. The regressive patriarchy and Victorian notion of morality dominated the judgments back then.
The Karnataka high court overstepped into the normative debate about how rape victims should behave after being ravished. “The fact of the matter remains that despite all these efforts women who make decisions to live independently and make choices regarding their own lives, including their intimate/ sexual lives are still viewed as women with “loose morals and character. Here, instead of looking at the legal merits of granting the accused bail, “a woman’s conduct has been judged on moralistic and misogynistic grounds that have nothing to do with the law and thus has entirely violated constitutional values.[iv] When judges pronounce certain behaviours as ‘unbecoming of Indian women’, they lay down a principle that there is a particular code of conduct that has to be followed after one has been sexually assaulted and if not adhere to, a victim has simply not suffered enough. It is therefore troubling that Indian judges retain their backward notions of proper conduct of victims and criminals, and seeks to reinforce these notions by dismissing the lived experiences of victims.[v]
Recently, the Nagpur Bench of the Bombay High Court in the case of Satish Bandu Ragde v. The State of Maharashtra held that “skin-to-skin” contact is essential to constitute the offense defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) which deals with sexual offenses against minors. Section 354 of the Indian Penal Code, 1860, dealing with outraging modesty of women, provides for a lesser sentence and was held to be applicable in such cases.[vi] The high court took the liberty to misinterpret section 7 of POCSO and the word ‘touch’ and stated that the act of groping a child’s breast, without any skin-to-skin contact and sexual intent, is not sexual assault under the POCSO Act. Such ignorant choice of words and misinterpretation perpetuated the idea that brushing your hands against a child’s body or genitals without the contact of skin, is permissible.[vii] Therefore, laying down an interpretation of a dangerous precedent.
Madhya Pradesh high court’s judgment led to the transformation of a molester into a protecting brother as the applicant, along with his wife were ordered to visit the house of the complainant with rakhi and a box of sweets and request the complainant to tie rakhi to him with the promise to protect her. The use of the cultural symbol of rakhi to dilute the pervasiveness of sexual harassment as an offense has outraged the modesty of a woman and should be non-negotiable.[viii]
In 2017, the Punjab and Haryana High Court granted bail to three men accused of gang-raping a woman, and instead, blamed “the promiscuity of the victim and the voyeuristic tendencies of all parties involved, including the victim.” The victim was blackmailed and raped, multiple times, for 18 months by the prime accused. However, the court’s judgment stated “it would be a travesty if these young minds (the accused) are confined to jail for an inordinately long period.”[ix] Through this the court has strengthened the dangerously patriarchal notion that rape is not rape when the woman is “promiscuous”, and has failed to take into account the fact that rape is rape and it knows no boundary, class, background, promiscuity, sexual conduct or history of the survivor.
On 1st March, the Chief Justice of India S.A. Bobde had asked a government employee if he would marry the woman who had accused him of repeatedly raping her. On the same day, while hearing a sexual assault case, he had said: “When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?” The Bar Council not only advocated the complete impunity to the judges for their comments but also berated the media for doing its job claiming that there is “hue and cry” over remarks made by judges, which don’t even result in orders, indicating that the public can’t hold judicial officers accountable for their public remarks and behaviour. However, even if those words don’t make their way to the judicial order, such comments made by the senior-most judge of the country hold the potential of validating those who perpetrate similar views in society.[x]
There are also clear evidences of insensitive conduct prevalent against women in the courts throughout the country. For instance, Indira Jaising, the first woman additional solicitor general, had to write an open letter to the Chief Justice on casual sexism in courts for she was referred to as “wife” rather than by her name or as counsel by a senior male lawyer during a court proceeding. Mansplaining and infantilism to downright sexual harassment, misogyny in the annals of justice come in all hue since women’s clothing, marital status, and professional success are commented upon in a naturalized manner and are not considered derogatory.[xi]
Common androcentric and regressive trends in the pronouncements
These verdicts show that patriarchy still prevails and that the misogynist courtrooms reveal how sexism operates and is reinforced in daily decisions, orders, reasoning, and assumptions based on ideology that subjugates women. The law embedded in patriarchal socio-cultural and sexual norms fails to see the rational logic and objectivity and repudiates to see the concept of consent in its wider perspective thus, pushing down the regressive reasoning against which the women’s movement has painfully struggled for.[xii] The term ‘Judicial Stereotyping’ is the practice of Judges perpetuating harmful stereotyping by ascribing specific attributes to a social group which ultimately acts as a barrier to justice.[xiii] It is evident that remarks in the hearings dealing with sexual offenses like that of a good woman are sexually chaste, women who drink and smoke ask for sexual advances, or the presumption that sexually active woman consented showcase judicial stereotyping. The inherent masculine court also created a new category of `assumed consent’ while re-inscribing androcentric attitudes in court while it never questioned the male accused action to respect the woman or understand her willingness or consent, rather, put the entire burden on a woman to express her consent and unwillingness in the act of rape.[xiv]
The way to reforms
Although courts are the interpreters and implementers of laws and the constitutional values, in reality, they work in an insensitive and autocratic manner where the shades of the subjectivities are clouted amongst the black and white law and the exhibition of the outcome is determined by various factors apart from the legal rules. Even society has normalized gendered hate speech to such an extent that it is no longer recognized as a form of hate speech. Therefore, the current legal framework for gender-based violence needs to be seen through the prism of hate speech to be able to do justice to the myriad of anguishing experiences that women face. [xv]
As rightly stated by Lucinda Finley “Language matters. Law matters. Legal language matters.” [xvi]The language which is utilized in these value judgments fails to address the actual issues at hand, such as adequate rehabilitation process, counselling, and compensation. By denouncing the survivor as an individual, the Courts fail to put into place a structure that can benefit women in the long-run and the society at large. The court needs to critically engage with a creative interpretation of rights instead of partnering a hegemonic pact with unequal domination of power and hierarchy. Power itself is a patriarchal notion further embedded in gendered transactions. The institutionalization of gender inequalities vide the judicial adjudication proves that the emancipatory potential of law is limited unless the judiciary itself is cleansed of its conservatism. Law and its custodians will require a continuous and sustained gender audit to gather courage to build solidarities that conspicuously and fearlessly uphold justice for its intrinsic value.[xvii]
Pratyusha Das
Intern, AGA
The views, thoughts, and opinions expressed in the text belong solely to the author in her personal capacity. They do not reflect the position of Asia in Global Affairs.
References
[i] Amrita Nair, Unmasking the misogyny of Indian Courts, The Leaflet, August 2020, https://www.theleaflet.in/unmasking-the-misogyny-of-indian-courts/#, accessed on 15 March 2021.
[ii] Rajalakshmi T.K. When words matter, The Frontline, VOL.38 NO. 7, ISSN 0970-1710, April 9 2021, 66-68
[iii] Anita Tagore, Gender Contouring of the Courts in India, The Wire, August 2020, https://thewire.in/law/judiciary-women-misogyny-sexual-harassment-marriage, accessed on 16 March 2021.
[iv] Sanyukta Dharmadhikari, ‘Narrow, patriarchal’: Open letter criticizes Karnataka HC judge’s observations on rape, the news minute, JUNE, 2020, https://www.thenewsminute.com/article/narrow-patriarchal-open-letter-criticises-karnataka-hc-judge-s-observations-rape-127397, accessed on 16 March 2021.
[v] AMRITA NAIR, The leaflet, Unmasking the misogyny of Indian Courts, August 2020, https://www.theleaflet.in/unmasking-the-misogyny-of-indian-courts/, accessed on 15 March 2021.
[vi] MUKTA SATHE, Bombay HC’s interpretation of POCSO risks making the law redundant, the Indian Express, JANUARY 2021, https://indianexpress.com/article/opinion/columns/bombay-hcs-interpretation-of-pocso-risks-making-the-law-redundant-7165780/, accessed on 15 March 2021.
[vii] Sudipta Das, How Bombay High Court’s Order In Groping Case Is Ignorant, Harmful & Absurd, feminism in India, January, 2021, https://feminisminindia.com/2021/01/28/bombay-high-court-skin-to-skin-touch-order/, accessed on 15 March 2021.
[viii] Ibid (iii)
[ix] Srishti Magan, A look at how the Indian justice system has let down victims of sexual assault over the years, Jan 2021, https://www.scoopwhoop.com/women/a-look-at-how-the-indian-justice-system-has-let-down-victims-of-sexual-assault-over-the-years/, accessed on 15 March 2021.
[x] KARAN TRIPATHI, The quint, Marry the Rapist: Bar Council Backing CJI’s Remark Makes It Worse, March 2021, https://www.thequint.com/news/law/bci-defends-cji-bobde-marital-rape-remarks accessed on 19 March 2021.
[xi] Pragati KB, Skewed Corridors of Justice: Women Continue to Face Sexism in Courts, the wire, April 2019, https://thewire.in/women/sexism-courts-women-lawyers-judges, accessed on 15 March 2021.
[xii] Nigam, Shalu, Fighting for the Justice in the Patriarchal Courts (August 29, 2017), http://dx.doi.org/10.2139/ssrn.3028829
[xiii] Kathleen Mahoney, Judicial Bias: The Ongoing Challenge, 2015 J. Disp. Resol. (2015), https://scholarship.law.missouri.edu/jdr/vol2015/iss1/4
[xiv] Ibid (xii)
[xv] Tania Gupta, Misogyny In India: A Virulent Form Of Hate Speech, SEPT 2020, https://criminallawstudiesnluj.wordpress.com/2020/09/30/misogyny-in-india-a-virulent-form-of-hate-speech/ , accessed on 15 March 2021.
[xvi] Ibid (v)
[xvii] Ibid (iii)
