On 22nd June 2020, the Indian High Court of the State of Karnataka while granting anticipatory bail to a person accused of rape, observed that it is “unbecoming of an Indian woman” to “fall asleep” after rape and that it is not the way “our women(Indian women) react” when they are “ravished”. The latter part of the problematic order was expunged after outrage from civil rights activists and lawyers. Justice Dixit went on to prejudicially state in the order that having drinks and staying late at night with the person accused of rape cast doubt upon the reliability of the victim. At the pre-trial stage, the court in its problematic remarks deployed rape myths by dictating the appropriate behavior of the victim and doubting her credibility on stereotypical standards. On 30th July 2020, the High Court of Madhya Pradesh granted bail to a man accused of sexual assault on a strange and patriarchal condition that the accused would get a ‘rakhi’(talusmen) tied by the woman and give her money as is part of the custom on the festival of Raksha Bandhan.
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. The continuing use of stereotypes by courts in its judicial pronouncements points towards the lack of accountability in the Indian legal system to address stereotyping by judges. This article discusses the current legal framework, lack of accountability, India’s failure to comply with its obligations under International law and its responsibility in addressing gender bias by the judiciary.
The first case in which the Indian court was questioned on its underlying misogyny was the Mathura case of 1979 which serves as an example of the blatant failure of the highest court in India to provide justice to a rape victim. In this case, two policemen were acquitted of charges of rape by relying on factors such as the absence of ‘marks of injury’ and ‘habituation with sex’. After the judgment, four law professors wrote to the Supreme Court of India questioning the concept of consent in the judgment. It has been described as the turning point in the women’s rights movement in India as the mobilization of women’s rights groups’ after this judgment was revolutionary.
Significant changes have been made to do away with laws that reinforce rape myths but courts have continued to incorporate sexual stereotypes in its judgments. The law as it stands currently after Criminal Law (Amendment), 2013 requires a “voluntary unequivocal agreement” to establish consent in rape cases under Section 375 of Indian Penal Code. It also provides that mere non-resistance by the victim cannot prove consent. In 2003, Section 155(4) of the Indian Evidence Act which provided that the immoral character (sexual history) of the victim would be factored on deciding a rape case was repealed. Yet, judges extensively relied on problematic medical jurisprudence textbooks in their reasoning according to which women file false rape cases, and virginity, as well as physical resistance, was important to prove rape. In 2015, stereotypes were removed from a prominent medical jurisprudence textbook with an emphasis on the need to sensitively deal with people of alternate sexual orientation, sex workers, and children in rape cases. Despite these reforms, the court in Mahmood Farooqui v. State of NCT of Delhi in 2017 demonstrated its skewed understanding of consent by stating that a “feeble no may mean yes”.
It is pertinent to note that judicial stereotyping is antithetical to International Human Rights Law. India is a signatory to various International legal instruments and Article 51 of the Indian Constitution entrenches the necessity to respect International law. The United Nations Convention on Elimination of Discrimination against Women (CEDAW) in Article 5(a) specifically provides that appropriate steps must be taken to eliminate practices ‘based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’. Article 2(f) strengthens 5(a) and provides that measures should be taken to address discrimination against women. Article 10(c) provides for “the elimination of any stereotyped concept of the roles of men and women at all levels” The elimination of wrongful gender stereotyping under CEDAW is required by all branches of the government, including the judiciary.
Furthermore, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) has recognized that the parties are not restricted to address stereotyping through the provisions explicitly covered in CEDAW but also extends to rights recognized in other treaties or customary international law which can have an effect on elimination of discrimination against women such as the right to a fair trial by an impartial judiciary under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).
It is clear from the above provisions that India through its stereotypical judicial pronouncements has failed to fulfill its obligations under International law to address institutional gender bias. Moreover, there is an absence of any law in India that specifically addresses judicial stereotyping.
The jurisprudence of the CEDAW committee can play a major role in influencing national judgments by addressing judicial stereotyping as a structural cause of discrimination. For example, the CEDAW Committee in Vertido v. Philippines put “sexual stereotyping” at the heart of the case, and stated that the judiciary should not create its own “inflexible standards” regarding the appropriate behavior of victims on pre-conceived notions. In this judgment, various rape myths were identified such as:
- Perpetrators of rape are strangers.
- Women should physically resist sexual assault.
- Victim must be “timid or easily cowed”.
- Women are inherently untruthful and likely to make false allegations of rape.
Similarly, in VK v. Bulgaria, the CEDAW committee came to the conclusion that denial of Plovdiv District and Regional Courts to provide V.K. a permanent protection order against her abusive partner demonstrates ‘stereotyped, preconceived and thus discriminatory notions of what constitutes domestic violence’. It also stated that State parties are accountable for judicial stereotyping that violates CEDAW.
In the above rulings, the CEDAW committee has affirmed that judicial stereotyping infringes the rights to non-discrimination and fair trial. Moreover, the CEDAW committee in General Recommendation No. 28, recognizes the elimination of stereotyping as one of the three central goals of CEDAW as it is a major cause and result of discrimination.
In order to address judicial stereotyping, it is essential to highlight the harms of gender stereotyping from evidence-based research and create awareness. Initiatives such as the feminist judgments project in India inspired from a similar project initially started in Canada, involved collaborative writing of alternate judgments from a feminist perspective, which can assist to raise awareness about the harms of stereotyping. The UN Special Rapporteur on the independence of judges and lawyers recognized the importance of increasing judicial capacity by stating that, “training on gender equality and women’s rights, in particular the Convention on the Elimination of All Forms of Discrimination against Women, should be set up and made compulsory for judges, prosecutors and lawyers.”
Additionally, identifying and highlighting judgments of the court which challenge stereotypes can also help in debunking myths and stereotypes. The court for the first time in Anuj Garg v. Hotel Association of India applied the ‘anti-stereotyping principle’ to sex discrimination claims. In 2018, the Supreme Court of India stated that even if it is assumed that the victim is a sex worker, it still does not give the right to the accused to rape. Justice Sikri in NALSA v. Union of India questioned the stereotypical generalization of binary gender and Justice Chandrachud in Secretary, Ministry of Defence v. Babita Puniya challenged gender roles which assume that domestic obligations rest on women. However, there is an urgent need to recognize that the use of negative stereotypes by the Judges themselves is also a form of discrimination.
Furthermore, for people to rely on a justice system free from gender bias, the aspect of representation in the judiciary cannot be overlooked and as Professor Kate Malleson argues, diversity on the bench may help in countering gender bias but more importantly, its absence undermines the democratic legitimacy of an institution. It is important to have the representation of intersectional voices and ensure diversity in a male-dominated judiciary.
As rightly recognized by the CEDAW committee:
Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants. Often judges adopt rigid standards about what they consider to be appropriate behavior for women and penalize those who do not conform to these stereotypes.
Thus, eradicating gender bias from the institution that one seeks justice from should be an utmost priority and it is essential to identify, challenge, and provide remedies for judicial stereotyping.
Tiasha Mukherjee is a 5th-year law student at New Law College, Bharati Vidyapeeth University in India. She is interested in international human rights law, Comparative law, and feminist legal theory. She is currently working as Research Assistant to Justice A.K. Sikri(International Judge, SICC, and former Judge at the Supreme Court of India).
Suggested citation: Tiasha Mukherjee, Judicial Stereotyping in India and the Need to Combat Institutional Gender Bias, JURIST – Student Commentary, October 19, 2020, https://www.jurist.org/commentary/2020/10/tiasha-mukherjee-judicial-stereotyping/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
