DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
2022-2023

WOMEN AND LAW

TOPIC: JUDICIAL STEREOTYPING IN INDIAN COURTS

SUBMITTED BY:
SUBMITTED TO:
SAHIL SINGH
DR. SAMREEN HUSSAIN
180101116
ASSISTANT PROFESSOR, LAW
9 SEMESTER, B.A.LLB(HONS.)
TH

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

1
 TABLE OF CONTENT
INTRODUCTION..........................................................................................................................3

RESEARCH OBJECTIVE..........................................................................................................3

RESEARCH METHODOLOGY...................................................................................................4

PATRIARCHY, CULTURAL NORMS, JUDICIAL STEREOTYPING AND THE JUDGES..................4

JUDICIAL STEREOTYPING AND CEDAW.................................................................................7

DIFFERENT INSTANCES AND CASES OF JUDICIAL STEREOTYPING BY INDIAN JUDICIARY...7

STEREOTYPING BASED ON SEX.............................................................................................8

STEREOTYPING BASED ON WORK........................................................................................9

OTHER INSTANCES OF STEREOTYPING BY THE JUDICIARY..............................................10

RECENT ATTIRE BASED STEREOTYPING BY THE JUDICIARY...........................................10

LANGUAGE AND STEREOTYPING........................................................................................11

SILENCE OF JUDICIARY ON SEX EQUALITY PRINCIPLE....................................................12

REDRESSAL FOR RAPE CASES IN INDIA – MARRIAGE OR MEDIATION...........................12

SUGGESTIONS...........................................................................................................................13

CONCLUSION............................................................................................................................15

BIBLIOGRAPHY........................................................................................................................16

2
 INTRODUCTION

“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

The doctrine of natural justice demands for unprejudiced and independent judiciary, a judicial
exercise of power that is free from any "fear or favour" and maintain this cardinal prudence
and guarantee that a judge is totally liberated from all outside influences so as to keep up the
sacredness of the institution of judiciary. Though the judge in a case is given the sole power
to form an opinion as to the weight-age allocated to a particular piece of evidence and decide
upon the combined efforts of all the evidence placed before it and make an adjudication as to
innocence and guilt of the accused but this opinion does not mean the “subjective
satisfaction” but entrustment of such wide power on the judge to decide the fate of any case,
carries with it the duty to act judicially, i.e., the judge is required to conduct the inquiry “in a
manner consistent with natural justice, to consider all relevant matters to ignore irrelevant
matters and to reach a conclusion without bias and prejudice

Judicial stereotyping is when judges perpetuate harmful stereotypes by adopting and relying
on society’s stereotypical definitions of groups or categories of persons, and assigning
specific attributes to such individuals, opening up scope for miscarriage of justice. This kind
of conduct affects the integrity of the justice system by re-victimising the oppressed. This
stereotyping is not limited to entertaining and perpetuating gender bias, but also includes
within its ambit discrimination based on class, caste, religion, and ethnicity. One may point to
several examples of judicial stereotyping by the Supreme Court of India (hereinafter, ‘SC’).
The influence of the society’s biases and judges’ own pre-conceived notions on judicial
decision-making prevents the judiciary from rendering judgements that challenge the
normative suppositions of gender and other stereotypes.
RESEARCH OBJECTIVE:
In this project I seek to explore certain selected judgements that have relied on conventional
stereotypes based on gender. Further, I have suggested certain measures, which should be
employed to eradicate the influence of stereotypes from the judiciary and adjudication.

3
RESEARCH METHODOLOGY:

The doctrinal method of legal research has been employed for carrying out this project’s
research. For this purpose, the researcher has gone through cases, statutes, regulations, and
various other texts. Various research articles and blogs have been also referred to.

PATRIARCHY, CULTURAL NORMS, JUDICIAL STEREOTYPING AND THE JUDGES

Simone de Beauvoir, the French philosopher and feminist, aptly remarked, “One is not born,
but rather becomes a woman”, clearly indicating that it is the socio-cultural environment that
relegates women to a subjugated position. In spite of decades of feminist movements and
women progressing in various spheres of life, Indian Courts are yet to wake up to the
seriousness of issues related to crimes and injustices against women. Nivedita Menon, in her 1
book titled Recovering Subversion: Feminist Politics Beyond the Law, emphasizes how most
legal systems are discriminatory against women as legal agents interpret laws in patriarchal
ways.2 According to her, even if the law speaks of equality amongst all citizens, its
practitioners fail to see the unequal ways in which women are placed in a disadvantaged
position, socially, culturally and economically, when compared to their male counterparts.
This is what Martha Nussbaum means when she says that judges should take into
consideration the “asymmetry of positions” when dealing with issues related to women.
Hence, most often, the law and the state fail to see women’s subjective experiences of
oppression and abuse. Nandita Haksar, in her essay, Dominance, Suppression and the Law,
strongly advocates those mere legal reforms, unless supplemented with a socio-political and
cultural understanding of the reasons for gender injustice, will be of no use in reaching out to
women in distress. Judges too are human beings and are prone to interpret laws based on
various factors, and not merely by examining legal facts, as can be seen in the examples
analysed in this paper. Biases that are generally seen in Courts range from disbelieving
women, allegations that women have misused the law, inability to gauge the severity of the
crime, etc. Moralist assumptions and gender stereotyping are predominantly seen in cases
related to domestic violence, which in turn severely impact judicial reasoning. Customary
laws too have often discriminated against women. According to Uma Chakravarti, for men
and women in Hindu society, the ideal womanhood is personified by the mythical character
Sita, which passed on through generations, and represents ideal marriage,

1
Bordo, S. (2015). Simone de Beauvoir the feminist philosopher as other. provocations: a transnational reader in

4
the history of feminist thought.
2
Menon, N. (2004). Recovering subversion: feminist politics beyond the law. Permanent Black.

5
female chastity and infidelity—all of which reinforce the image of the ideal woman in a
patriarchal society. In legends and myths, women are often portrayed as the epitome of
tolerance and suffering in pain. Thus, in the name of tradition and culture, the right to a
dignified life is often denied to a woman. For centuries, Sita has been the model for a
pativrata (ideal wife) in families. Women’s bodies and their experiences have always been
considered irrelevant and insignificant. Very often, traditions ingrained for centuries make
women themselves endorse their secondary status. Women, thus, are shaped by culture. Even
today, it’s public morality that decides the position of women in society. Sadly, Courts too,
most often tow the same line, without questioning the status quo, even in rape cases.

Gender stereotyping gets institutionalized when the State enforces and perpetuates this
through its laws and policies. An awareness regarding stereotyping pertaining to laws is
required to eliminate the same, as it acts against women, restricting them to cultural norms
and punishing them when this is violated. Indian Courts are supposed to be the torchbearers
of justice and a driving force behind implementing human rights. Unfortunately, there is a
wide gap in delivering justice in matters related to women’s issues, at the level of the District
and High Courts. Most often in rape/sexual crimes, more than the legal facts, courts are seen
focusing on the character and conduct of victims, which according to them, are quite
unbecoming of “cultured” women.

“Judges play – at all levels – a vital role as teachers and thought leaders. It is their role to be
impartial in words and action, at all times. If they falter, especially in gender related crimes,
they imperil fairness and inflict great cruelty in the casual blindness to the despair of the
survivors”3 Judges are supposed to carry out their judicial duties without fear or favour, ill
will or malice. Some variations of these words are found in the oaths of office administered
to judges, from the Chief Justice of India to the judicial magistrate. Each case before them is
unique and has to be decided on its own merits. However, it is not uncommon to see
allegations of bias against Indian judges on the basis of caste, religion, gender and other such
criteria. In other words, judges are nuanced decision makers who bring their preferences and
experiences to bear on what are sometimes difficult questions lacking objectively correct
answers. One such bias which is often seen in the judgments of Indian courts is the “Gender
Bias”. Stereotyped thinking about the nature and roles of different genders, myths and
misconceptions about their social and economic realities are very prevalent in the Indian
justice system. In the courts these

6
3
Aparna Bhat and others v State of Madhya Pradesh and others LL 2021 SC 168.

7
aspects of gender bias distort decision making and compromises the impartiality and integrity
of the justice system, which can, in turn, lead to miscarriages of justice, and sometimes 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.

The constitution of our country protects us all against discrimination based on “sex” yet the
judiciary is full of instances where the judges have perpetuated gender stereotypes. Like in
the case of Sri Rakesh B v. State of Karnataka,4where Justice S. Dixit while addressing the
petition by the accused for anticipatory bail, had passed the order in favor of the accused and
granted him anticipatory bail. The relevant extract from the judgment as follows: “the version
of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner
having consumed drinks came and sat in the car, even if is assumed to be true, there is no
explanation offered for not alerting the police or the public about the conduct of the
petitioner; thus there are sufficient grounds to admit the petitioner to Advance Bail nothing is
mentioned by the complainant as to why she went to her office at night i.e., 11.00 p.m.; she
has also not objected to consuming drinks with the petitioner and allowing him to stay with
her till morning; the explanation offered by the complainant that after the perpetration of the
act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our
women react when they are ravished”.5 It is sad that even after significant changes that have
been made especially after Mathura Case6 to do away with the laws that reinforce rape myths,
courts have continued to incorporate sexual stereotypes in its judgments and base their
decision on preconceived notions of an Indian woman. For them an Indian woman should be
like “Sita”. In another case of Sudhansu Sekhar Sahoo v. State of Orissa7 the judges did not
believe the victim and acquitted the accused by quoting: “Ms. X asserted that she was a virgin
till the alleged incident, but the medical evidence supported by her physical features revealed
that she was habituated to sex. All these factors cast a serious doubt on the prosecution case.
On a consideration of the broad probabilities of the case, we feel that various factors cast a
serious doubt about the genuineness of the case of Ms. X that she had been forcibly ravished
by the appellant. The appellant is certainly entitled to the benefit of doubt”.

4
Criminal Petition no.2427 of 2020.
5
Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667.
6
Tuka Ram And Anr v. State Of Maharashtra 1979 SCR (1) 810.
8
7
2002 10 SCC 493.

9
 JUDICIAL STEREOTYPING AND CEDAW

It is pertinent to note that judicial stereotyping is antithetical to International Human Rights

Law. The United Nations Convention on Elimination of Discrimination against Women
(CEDAW) 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 and that measures should be taken to address discrimination against women at all
levels including judiciary. India ratified the Convention on Elimination of All Forms of
Discrimination against Women (CEDAW) in 1993, which led to the passing of various
legislations conferring various rights upon women. Some of them are the Prevention of
Sexual Harassment at workplace Act, Amendment to the criminal law post the Nirbhaya
incident, the Equal Remuneration Act etc. All these were protected under Article 15(3) 8 of the
Indian Constitution which left scope for affirmative action for women and children. Despite
changes in the law, the judicial attitude towards women has remained regressive and often
prevents women from approaching the judiciary to address their grievances and it is clear
from the above provisions that India through its stereotypical judicial pronouncements has
failed to fulfil its obligations under international law to address institutional gender bias.

As has been demonstrated throughout this report, several gender stereotypes that can obstruct
the full enjoyment of human rights revolve around sex, sex role, and sexual characteristics of
men and women. By explicitly identifying, challenging, and awarding effective remedies to
address stereotyping, as further discussed below, courts have and can have a critically
important transformative impact in promoting equality throughout society.

As 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 revictimization of complainants...Women should be able to rely on a justice system free
from myths and stereotypes, and on a judiciary whose impartiality is not compromised by
these biased assumptions. Eliminating judicial stereotyping in the justice system is a crucial
step in ensuring equality and justice for victims and survivors.”9

DIFFERENT INSTANCES AND CASES OF JUDICIAL STEREOTYPING BY INDIAN JUDICIARY

Women have been subject to stereotyping in judicial court often, on the basis of-

8
The Constitution of India 1950.
9
CEDAW Committee, General Recommendation 33, supra note 9, paras. 26, 28.
10
  Caste based Stereotyping
 Sex based Stereotyping
 Work based Stereotyping
 Victim’s Attire based
 Language based stereotyping

STEREOTYPING BASED ON SEX

The first case in which the Indian court was questioned on its underlying misogyny was
the Mathura case10 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 Delhi11 in 2017 demonstrated its skewed
understanding of consent by stating that a “feeble no may mean yes”. On appeal, the judges at
the SC refused to interfere with the said finding, on the pretext that the case was well
decided.12 It turned a blind eye to other cogent

10
Tuka Ram & Anr v State of Maharashtra, 1979 AIR 185.
11
Mahmood Farooqui v State (NCT of Delhi), 2017 SCCOnLine Del 6378.
12
Madhavi Goradia Divan, For No to Be No, The Indian Express, October 4, 2020, available
at https://indianexpress.com/article/opinion/columns/for-no-to-be-no-consent-consensual-physical-relationship-
11
intimacy-rape-sexual-assault-mahmood-farooqui-case-4873167/ (Last visited on November 02, 2022).

12
factors in favour of the prosecutrix,13 and instead claimed that the woman went along by
faking an orgasm.14 The judges’ inappropriate remarks while dismissing the appeal fortified
the stereotype that there is a presumed consent to have sexual intercourse, when you allow
the person to make a drink for you.15

STEREOTYPING BASED ON WORK

In the case of Nargesh Meerza16, the SC’s decision exposes a patriarchal mind-set. By
upholding that a four-year prohibition on airhostess marrying, after joining service is a
reasonable basis of classification under Article 1417. This was justified in defence of
successful marriages and family planning.18 This perpetuated the stereotypical notion that
such responsibility to have a successful marriage and plan the number of children solely lies
upon the shoulder of women. Also, males being bread earners were not subject to any such
service condition, and thus, would not be terminated from service for getting married early. It
was only years later, Chandrachud J. used the anti-stereotyping principle under Article 15 to
reject this position.19 However, Chandrachud J.’s viewpoint is not enough as it was not
reflected in the majority opinion.
In the case of Messrs Mackinnon v. Audrey D’Costa,20 the SC did uphold that female
stenographers are entitled to same salary as their male counterparts in a matter under the
Equal Remuneration Act.21 However, in the end, it went on to observe that discrimination
arises when both male and female employees do the same kind of work. It stated that there is
no discrimination in cases where men engage in arduous activities of loading and unloading,
22
which women are not capable of. Hence, the judgement exhibited society’s perception of
co-

13
Manasi Chaudhari, Aziz Ansari, Mohammad Farooqui and the Dangerous Myth of a ‘Right’ Way to Resist,
53(13) Economic and Political Weekly (March 31, 2018).
14
Utkarsh Anand, ‘She Said I Love You, Kissed Him’: Argument That Led to Reprieve for Mahmood Farooqui
in SC, January 19, 2018, available at https://www.news18.com/news/india/she-said-i-love-you-and-even-kissed-
him-the-argument-that-led-the-sc-to-decide-in-favour-of-peepli-live-director-mahmood-farooqui-
1636829.html (Last visited on November 01, 2022).
15
Id.
16
Air India v. Meerza, A.I.R. (1981) 4 SCC 335.
17
The Constitution of India, 1950, Art.14.
18
Air India v. Meerza, A.I.R. (1981) 4 SCC 335.
19
Navtej Johar v Union of India (2018) 10 SCC 1, ¶ 432 – 433; Gautam Bhatia, Sex Discrimination and the
Constitution – VI: The Discontents of Air India v Nargesh Mirza, Indian Constitutional Law and
Philosophy, August 12, 2015, available at https://indconlawphil.wordpress.com/2015/08/12/sex-discrimination-
and-the-constitution-vi-the-discontents-of-air-india-v-nargesh-mirza/ (Last visited on November 07, 2022).
20
Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281.
21
The Equal Remuneration Act, 1976.
13
22
Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281.

14
relating masculinity with the performance of arduous activities. 23 Such an observation was
uncalled for as the decision did not depend on the same.
OTHER INSTANCES OF STEREOTYPING BY THE JUDICIARY
The Karnataka High Court, while granting anticipatory bail to a rape accused in 2020,
observed in its order that it was “unbecoming” of an alleged rape victim to have fallen asleep
after being “ravished”. The Punjab and Haryana High Court, in 2017, released on bail three
university students convicted for the rape of another student. The basis of such order was the
victim’s “misadventures and experiments”, her “promiscuity”, and the absence of brutal
violence accompanying the sexual assault.

In 2020, the Madhya Pradesh High Court granted bail to a man accused in a molestation case
on the condition that he would give the victim sweets, and have her tie a ‘rakhi’ on his wrist.
After an open letter was written by the Supreme Court Women Lawyers Association to the
Chief Justice of India in December 2020 highlighting the entrenched patriarchy of courts, the
Supreme Court laid down a number of guidelines in Aparna Bhat versus State of Madhya
Pradesh (2021) disallowing judges from relying on gender stereotypes such as ““good”
women are sexually chaste” or women who drink and smoke ‘ask’ for sexual advances or
presume that a sexually active woman consented to rape, while hearing cases of sexual
assault. The court also categorically mentioned that the lived experiences of sexual assault
victims must not be disqualified on the basis of stereotypes perpetuated against them.

RECENT ATTIRE BASED STEREOTYPING BY THE JUDICIARY

Recently, a session court of Kerala granted anticipatory bail to author and activist Civic
Chandran in a sexual harassment case. The reasoning provided by for granting bail to accused
was that the offence of sexual harassment was not prima facie attracted where the
complainant woman was wearing ‘sexually provocative dresses’. The language employed by
judges in this case amounts to judicial stereotyping. This case received a lot of flak all over
globe. The Kozhikode Sessions Court granted anticipatory bail to Chandran by observing
that the offence under Section 354A (sexual harassment) of the Indian Penal Code is not
prima facie attracted when the woman was wearing “sexually provocative dresses”. It needs
to be stated here that the accused himself had sourced the said images and submitted them
along with the bail application.

23
Kalpana Kannabiran, Judicial Meanderings in Patriarchal Thickets: Litigating Sex Discrimination in India,
44(44) Economic and Political Weekly (2009).

15
The court, exercising its moral nod of agreement with the accused, goes on to state: “The
photographs produced along with the bail application by the accused would reveal that the
de facto complainant herself is exposing to dresses which are having some sexual provocative
one. So Section 354A will not prima facie stand against the accused.”

This essentially implies that the accused is provoked by the sexually provocative nature of the
complainant’s dress and that there is always an external stimulus for men to sexually harass
women. In other words, women must bear responsibility for the acts of men.

LANGUAGE AND STEREOTYPING

Language also plays a role in solidifying gender stereotypes. Remarks such as “crimes
against the body of a woman which is her own temple”,24 “purest treasure is lost”,25 “rape
victim feels a deep sense of deathless shame” 26 disseminate the idea that women’s dignity is
synonymous to her; it fortifies the societal outlook that when a woman is raped, it is against
the honour of her family more than an invasion of her bodily autonomy and integrity.27 The
Apex Court has often repeated such remarks.28 Being raped is a horrible thing but not because
the victim is less dignified in the eyes of the society, but because it is an offence against her
bodily autonomy, which is her right under Article 21.29

Observations of Court’s dictum also portray how they tend to revolve around the
conventional gender roles of men and women. In Narendra v K. Meena,30 the court
pronounced that a wife who forces her husband to leave his family, inflicts cruelty on him,
and is a ground for divorce. In arriving at such a dictum, the court made some regressive
observations, such as, normally within Indian culture son is given education to maintain his
parents,31 and so no son would like to be separated from them.32 First, these comments do not
adhere to gender-neutral terms and imposes this virtuous duty on men to maintain old parents
and their own families as the sole bread earners of the family. Second, by using the word
“normal,” the Court perpetuates the

24
State of M.P. v. Madanlal, (2015) 7 SCC 681.
25
Ibid.
26
Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in
India, Cambridge: Cambridge University Press (2016) ; G.S. Bajpai and Raghav Mendiratta, Gender Notions in
Judgments of Rape Cases: Facing the Disturbing Reality, 60 Jili (2018) 298.
27
Usha Tandon and Sidharth Luthra, Rape: Violation of the Chastity or Dignity of Woman? A Feminist Critique
of Indian Law, FICHL Policy Brief Series No. 51 (2016).
28
State of M.P. v. Basodi, (2009) 12 SCC 318
29
Justice KS Puttaswamy v Union of India, (2017) 10 SCC 1 ; State of M.P. v. Basodi, (2009) 12 SCC 318; State
of M.P. v. Sk. Shahid, (2009) 12 SCC 71.
30
Narendra v K. Meena, (2016) 9 SCC 455.
31
Ibid.
16
32
Ibid.

17
idea that women bread earners are an aberration in the Indian culture. Third, it considers a
married daughter’s separation from her family to be just unlike that of a son. There are
several such instances where Indian courts have made similar stereotypical assumptions
gendered division of labour in the Indian household. In a case of suicide by wife, the court
observed that asking wife to the do the household chores properly did not amount to ill-
treatment.33 In Ranjith
P.C. v Asha Nair P,34 the court observed, “making a daughter-in-law do household work was
not something unusual. Thus, both the cases establish that stereotypical gender roles of
cooking, cleaning can only be ascribed to woman.

SILENCE OF JUDICIARY ON SEX EQUALITY PRINCIPLE

In many instances, courts while passing judgements favourable to women refuse to deliberate
upon sex equality principles that could grant better legal rights to them. 35 For example, in the
case of Sarla Mudgal v. Union of India,36 the Court considered the second marriage of a
convert male to be void on statutory grounds, rather than declaring polygamy to be unfair
when simultaneously polyandry or mutual consent of all the partners are not recognised under
the law. Again in Shayara Bano case,37 the court only looked at how triple talaq was not an
essential religious practise, rather than enunciating how the practice was gender
discriminatory under Article 15.38

REDRESSAL FOR RAPE CASES IN INDIA – MARRIAGE OR MEDIATION

Former Chief Justice S.A. Bobde’s statement on 1 March 2021, asking a government
employee seeking protection from arrest in a rape case, whether he was willing to marry the
survivor as a settlement (“. . . if you marry her, we can help; if not, you lose your job and go
to jail.”)39, is actually mocking the justice system itself (Mohit Subhash Chavan v. State of
Maharashtra, 2021). It is difficult to fathom why the Court in any scenario would see
marriage as a redressal for rape cases. Moreover, in this case, it had already come to light that
the rape accused and mother of the survivor had previously tried to settle this matter amongst
themselves through an agreement. It had been decided previously that the rape accused would
marry the girl after she

33
State of Maharashtra v Vijay Dhondiram Shince, 2018 SCC OnLine Bom 2047.
34
2020 SCC OnLine Ker 1751.
35
Catharine A. MacKinnon, Sex equality under the Constitution of India: Problems, prospects, and “personal
laws”, 4(2)International Journal of Constitutional Law (2006).
36
(1995) 3 SCC 635.
37
Shayara Bano v. Union of India, (2017) 9 SCC 1.
38
The Constitution of India 1950.
18
39
Livelaw News Network, Will You Marry Her?' Supreme Court Asks Man Accused Of Raping Minor; Grants
Him Protection From Arrest, LiveLaw.in (March. 01, 2021), https://www.livelaw.in/top-stories/willyou-marry-
her-supreme-court-asks-man-Accused-of-raping-minor-170530.

19
turns. One of the observations made by the Court, in this case, was that the accused should
have thought before “seducing and raping” the young girl. Seduction explicitly excludes
force and intimidation, while rape definitely includes one of these two. To pair seduction and
rape and put marriage on the figure as a solution, throws up a serious question on the nature
of justice itself. Moreover, the young girl’s consent on whether she could even think about
marrying her rapist was deemed irrelevant in this case. Former CJI’s statement regarding this
case, faced massive outrage and public ire. One of the biggest concerns, which stood out from
this statement, was how Indian society and Courts consider marriage as a solution to rape
committed against minors40. Moreover, a marriage between the victim and her rapist is like
condemning the victim for a lifetime of rape by a tormentor.

SUGGESTIONS

 According to the UN Special Rapporteur on the independence of judges and lawyers,

ensuring diversity among the judiciary by encouraging representation of women and
other underrepresented groups like ethnic, racial or sexual minorities would bring,
“different perspectives or approaches to adjudication, while fighting against gender
stereotypes … ensure a more balanced and impartial perspective on matters before the
courts, eliminating barriers that have prevented some judges from addressing certain
issues fairly,”41 and “improve public trust and confidence in its credibility, legitimacy
and impartiality.”42
 Education, training, and guidance are integral to building capacity and competency of
judges to identify harmful gender stereotypes and address wrongful gender
stereotyping, as well as to ensure judicial decision-making is not adversely affected.
In order to urgently address gender-based stereotypes, the UN Special Rapporteur on
the independence of judges and lawyers has recognized 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. The study of gender equality, women’s rights and
relevant international standards should also form an integral part of the legal
education.”43

40
Pandey, G.2021b. India supreme court: calls for justice sharad bobde to quit over rape remarks, BBC News
https://www.bbc.com/news/world-asia-india -56263990
41
Gabriella Knaul, Special rapporteur on the independence of judges and lawyers, UN Doc. A/66/289 (2011),
para. 27.
42
Ibid., para 26

20
43
Gabriella Knaul, Report of the Special Rapporteur on the independence of judges and lawyers, UN Doc.
A/HRC/29/26/Add.1 (2015), para. 115.

21
 Additionally, education that occurs in law school will be important in eliminating
gender stereotyping in the judiciary.44
 The appointment of a diverse and meritorious bench representing intersectional voices
is essential rather than a bench being majorly occupied by male members. An all-
inclusive judiciary will challenge perspectives that only represent upper caste, cis-
gendered male views. History stands testament to the fact that presence of women in
decision-making has aided in pronouncing gender-sensitive landmark cases; hence a
diverse bench could do wonders.
 Counselling of judges by experts from distinct fields, coupled with discussions of
lived experiences of individuals will help them realise the archaic notions ingrained
within the judiciary and the problematic consequences thereof. Further, an academic
curriculum in law schools, which promotes an inclusive space for academic
discussions and which subjects’ decisions to academic criticism, will help debunk
harmful stereotypes and identify problematic opinions.
 Just like the feminist judgement project in India, that re-writes key judgements from a
feminist perspective,45 India should aim at establishing more projects that confront
harmful stereotypes. These projects could represent diverse voices of the society, such
as Dalit’s, so that the judges are made aware of the poor decisions that affect the
oppressed.
 Indian laws are discriminatory, gender biased, gender insensitive and in the process of
adhering to such archaic laws, judges subconsciously take decisions that perpetuate
societal myths. In such circumstances, the legislative bodies must reform the out-
dated laws, and introduce gender-sensitive anti-discriminatory policies, which provide
safeguards to tackle intersectional sexes of discrimination. Such exhaustive guidelines
will ensure judges cannot deflect from the law and are not guided by conventional
norms. In the absence of legislative guidelines, the SC can also use its power under
Article 14246 to do complete justice rather than following the derogatory laws.
 Gender sensitisation of both the bar and the bench and higher representation of
women in Indian judiciary could be a solution to combat non-empathetic approach of
judges in sexual violence cases. In making a judgement, it must be recognised that
judges are not only communicating to the parties but are addressing the public at
large.

44
CEDAW Committee, General Recommendation No. 33, supra note 9, para. 29 (a).
45
Indian Feminist Judgements, available at https://www.indianfeministjudgmentsproject.com/
22
46
The Constitution of India, 1950.

23
 Thus, eliminating social biases in judicial reasoning and ensuring gender-sensitive
verdicts through judicial standards has critical social repercussions for improving
women’s legal and social equality.

CONCLUSION

The SC being the apex court needs to be ahead of its times to guide society towards a better
future rather than being influenced by the societal belief structure. Further, it should uphold
the integrity and equality of all sexes, classes, and castes. Judgements that mirror the
degrading morals of the society reinforce stereotypes within the judiciary. This leads to a
vicious cycle, as the incorrect precedents of the Apex Court compel the lower courts to
adhere to such stereotypes or provide no impetus to rise above and beyond such stereotypes.
Hence, it is necessary to bring about substantial changes within the judiciary to ensure that
the SC does not disseminate notions that hamper the fabric of our society. Justice DY
Chandrachud in the case of Navtej Johar v. Union of India 47 wrote in his concurring opinion
that perpetuating stereotypes about a class under Article 15(1) is a violation of that
fundamental right. The relevant extract is as follows: “A discriminatory act will be tested
against constitutional values. Discrimination will not survive constitutional scrutiny when it
is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited
in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a
stereotypical understanding of the role of the sex, it would not be distinguishable from the
discrimination which is prohibited by Article 15 on the grounds only of sex. If certain
characteristics grounded in stereotypes, are to be associated with entire classes of people
constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a
permissible reason to discriminate.”

Conservative and progressive elements tend to coincide in judicial discourse. The Supreme
Court has recently passed certain key judgments to safeguard the rights of women. But the
judiciary has also been a purveyor of sexist notions like the “marrying your rapist
jurisprudence” by our former CJI. In a country like India, where Doctrine of Stare Decisi is
followed, the words used by the judges while delivering judgments and passing orders can
have a monumental effect on the future jurisprudence and therefore it is important to remove
such biases from the judiciary for non-discrimination and fair trial.

24
47
AIR 2018 SC 4321.

25
 BIBLIOGRAPHY
Webliography:
 www.jstor.org
 www.ssrn.com
 www.barandbench.com
 https://www.ohchr.org/sites/default/files/JudiciaryRoleCounterStereotypes_EN.pdf,
accessed on 9th November 2022.
 https://rm.coe.int/1680597b20, accessed on 9th November 2022
 https://www.thehindu.com/news/national/supreme-court-forbids-judges-from-making-
gender-stereotypical-comments/article34125046.ece, accessed on 10th November
2022.
 Mathur, A. 2021. Supreme court issues guidelines for trial of sexual assault cases
setting aside rakhi-for-bail order, India today news. https://www.indiatoday.in/
india/story/sc-issues-guidelines-for-trial-of-sexualassault-cases-1780859-2021-03-18.
 Sankaranarayanan, G. (2022) The Summer of The Patriarch, Livelaw.In (Columns),
April 16th 2021, 0846 IST https://www.livelaw.in/columns/summer-of-thepatriarch-
supreme-court-women-judges-chiefjustice-bobde-172641
 Vidhi Centre For Law & Policy Search (2018). Tilting the Scale, Access At:
https://vidhilegalpolicy.in/wpcontent/uploads/2020/06/180212_TiltingtheScale_
Final.pdf. (Last Accessed on: November 10th 2022)
 Anand, U. (2021). Supreme Court rejects pleas by rape survivor, convict to marry
each other, Hindustan Times: India news.
https://www.hindustantimes.com/indianews/sc- rejects-pleas-by-kerala-rape-survivor-
convict-to-marry-each-other- 101627929507190.html

26