SC handbook a first step to end gender stereotyping of women by courts

The Supreme Court of India recently released Handbook on Combating Gender Stereotypes is a first step to arrest this issue.

The use of labels usually perpetuates stereotyping. For example, ‘housewife’ perpetuates the idea that husbands must work and wives must take care of the house, ‘ladylike’ perpetuates the idea that a woman must be graceful and polite. This further perpetuates other stereotypical labels that women cannot take care of themselves, they need a man to protect them, they are ‘chaste’, they do not need contraception if they are not married, and if they do, they are ‘sluts’, ‘whores’ or ‘promiscuous’ and the list goes on and on.

Over the years, some of these words and more have also been used by courts to define women such as ‘concubine’, ‘easy virtue’, etc. either due to British legacy or mention of such words in our laws, most of which were passed in the early 1900s. One of the earliest references to the term ‘concubine’ can be found in a 1944 Bombay High Court judgement and has been used several times after that. As a result, media also reports it as it is and these labels get used freely in society to describe women. Today we see ‘slut’, ‘whore’, etc. being commonly used by the public. These further cement stereotypical beliefs and lead to rapes, assaults, domestic violence, online harassment of women and so much more. They then find a place in laws and eventually in judgements.

In 1991 in State of Maharashtra v. Madhukar Narayan Mardikar, while the Supreme Court protected the Right to Privacy of a sex worker (referred to as prostitute in the judgement), it also stated that even a woman of ‘easy virtue’ is entitled to her privacy. The dictionary meaning of ‘easy virtue’ is a woman who has sex with many men. This word is exclusively used to define the character and sexual behaviour of a woman. Flirtatious nature and character of a woman came up in a recent sexual harassment case as well which was held against the survivor by a Goa court. There is no such term as ‘prostitute’ or ‘easy virtue’ for men. Such labels impact women’s autonomy, their role in society and dilute the credibility of their voices, arguments and testimonies in courts. Such stereotyping can also lead judges to misinterpret/misapply laws. This is again used by members of society, which again perpetuates the situation. This becomes a vicious circle which eventually ends up stunting the growth of our society.

First Step To End Stereotyping

The Supreme Court of India’s recently released Handbook on Combating Gender Stereotypes is a first step to arrest this issue, and a necessary one. While Aparna Bhat vs The State Of Madhya Pradesh (2021 judgement of Supreme Court) stated that “…a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.” However, having a handbook will still be very helpful as the glossary of ‘Stereotype promoting language’ that has been listed here will ensure that there is a starting point for judges to stop using such words in their judgements consciously.

Moreover, when judges get appointed, they have to go through a training of about one year during which they are taught about different laws such as the Code of Civil Procedure, Code of Criminal Procedure, Evidence Act, court fees-related rules, etc. They are also taught about practical aspects such as sensitivities to keep in mind, forensics and how it works. The handbook will ensure that there is a starting point for judges to be trained on the choice of words as well, which did not exist so far.

The handbook has been created to ensure application to all kinds of judgements covering all kinds of laws. Hence, these will be applied to instances of rape, assault and sexual harassment, and for defining the ‘character’ of a woman. Words like ‘promiscuous character’ or ‘open sexual attitude’ or ‘habitual to sex’ (as held in Narender Kumar vs. State or Lillu @ Rajesh and Anr. vs. State of Haryana) will stop surfacing over time.

This will also apply to other aspects of a woman’s life and ensure overall control over gender stereotyping. For example, in Kriti & Anr. Vs. Oriental Insurance Company Limited, instead of ‘housewife’, the Supreme Court used the word ‘homemaker’ and said, ‘Notional Income of Homemakers must be calculated based on the principles of fairness, equality and good conscience.’ 

Challenges & Solutions

Consider the example of the word ‘prostitute’. The handbook states that it is a ‘Stereotype promoting language’. Instead, the word ‘sex worker’ must be used. However, if we look at the Immoral Traffic (Prevention)] Act, 1956, it uses the word ‘prostitute’ in several provisions. Hence, when a lawyer is arguing basis this law and when courts have to quote provisions from this law, they will necessarily need to use this word as the legislation itself mentions it. Given the release of the handbook, while writing judgements, courts can use the word ‘sex worker’ but if the provision of the law has been quoted, a disclaimer may have to be added, stating that the words are quoted as it is from the legislation.

Our judicial system is made up of the bar and the bench. While the handbook will be helpful for the bench, it would be equally important that the law students and members of the bar also go through training on this subject. This will ensure that their arguments in courts of law are free of labels and that such terms do not find their way into judgements. Overall, labels can be very damaging, and the handbook may play a role in ensuring that the bar and the bench do their bit in combatting gender stereotypes.

Shivangi Prasad is a corporate lawyer and author. Views are personal, and do not represent the stand of this publication.