Little would the Madhya Pradesh High Court judge who authored a 4-page long order on July 30, 2020 have known about how much his order would divulge about the institutionalised patriarchal notions which are shared as much by members on the Bench as the layperson.
While the blatant victim blaming by the Court in 1978 in the infamous Mathura case had shaken up the judiciary and led to many changes, the latent tendencies continued to remain hidden, surfacing every now and then as part of short orders or as stray observations during hearing of cases.
The July 2020 order was one such example typifying the attitude of many who occupy judicial posts. The order though innocuous on surface, betrayed the patriarchal notions of societal attitude towards women as a weaker sex in need of constant protection.
The order was passed by the High Court on a bail plea by a person accused of sexual assault. The Court agreed to grant bail subject to the following condition:
“The applicant along with his wife shall visit the house of the complainant with Rakhi thread / band on 03rd August, 2020 at 11:00 am with a box of sweets and request the complainant-Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come.”
This prompted the Supreme Court to make some strong observations against courts and judges expressing any stereotype opinions while writing judgments/ orders or hearing cases.
“Courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order ,” the order passed by the Supreme Court on Thursday said.
The following twelve aspects were specifically cited by the top court which judges should compulsorily avoid in their judgments/ remarks during court hearings:
(i) women are physically weak and need protection;
(ii) women are incapable of or cannot take decisions on their own;
(iii) men are the “head” of the household and should take all the decisions relating to family;
(iv) women should be submissive and obedient according to our culture;
(v) “good” women are sexually chaste;
(vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
(vii) women should be the ones in charge of their children, their upbringing and care;
(viii) being alone at night or wearing certain clothes make women responsible for being attacked;
(ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;
(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and
(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
The idea, the Court said, is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence, the Court added.
It also said that judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping.
“This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge’s decision and affect his or her views about witness credibility or the culpability of the accused person,” the Court cautioned.