By Anuradha Gandhi and Rachita Thakur
Introduction
Charity begins at home!
The Chief Justice of India, Hon’ble Mr. Justice DY Chandrachud announced, in his initiative to bring about a progressive change in use of Gender Stereotypes, the launch of the Handbook on Combating Gender Stereotypes,’ Supreme Court of India (hereinafter referred to as the “Handbook”) on August 14, 2023 highlighting the fact that each case needs to be decided on merits and reliance on stereotypes, especially about women is liable to distort the law’s applicability in harmful ways.
What are Stereotypes?
A stereotype refers to a set idea that people have that people have about what someone or something is like, especially an idea that is wrong.[1] The most common forms of stereotypes that people are associate with are based on nationality, region, caste, gender, disability, sexuality, skin color, physical appearance, etc.
Stereotypes create bias in the minds of people that in turn inflicts harm on a particular person, a section of individuals or a community as a whole. For instance, the Code of Civil Procedure, 1908 earlier referred to people without financial means as ‘paupers’ which was observed to be demeaning to a community of individuals. Therefore, the term ‘pauper’ was subsequently substituted by ‘indigent’ to recognize the humanity of the class of people referred to by the term.
Stereotypes based on gendered roles
Society has ascribed specific gendered roles to individuals often classified as, men and women. The most common types of stereotypes that concern women are:
- Stereotypes based on inherent characteristics of women
- Stereotypes based on gendered roles of women
- Stereotypes related to sex, sexuality and sexual violence
Some of the stereotypes that the Handbook describes is as follows:
The Handbook further sheds emphasis on the certain stereotypical views against women that are often normalized along with the reality that is associated with them.
| Stereotype | Reality |
|---|---|
| All women want to have children | All women do not want to have children. Deciding to become a parent is an individual choice that every person takes based on a variety of circumstances. |
| Women should be submissive or subordinate to men. | The Constitution of India guarantees equal rights to individuals of all genders. Women are neither subordinate to men nor do they need to be submissive to anybody. |
| Dominant caste men do not want to engage in sexual relations with women from oppressed castes. Therefore, any allegation of sexual assault or rape by an oppressed caste woman against a dominant caste man is false. | Rape and sexual violence have long been used as a tool of social control. Dominant caste men have historically used sexual violence as a tool to reinforce and maintain caste hierarchies. |
| Men are unable to control their sexual desires. | Men, like all other humans, are in control of all their actions including their sexual desires. Such reasoning discounts the agency of men and then excuses this purported lack of agency. |
Apparently, these stereotypes have actually a ‘reality’ since majority of the cases that involved any kind of violence against women, especially sexual violence, have often mentioned about the stereotypical views against women. Reference to one of the case, Vishaka v. State of Rajasthan,[2] that led to enactment of the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The trial court acquitted the accused stating inter alia:
- A member of dominant caste would not rape a woman from an oppressed caste
- Older men aged 60-70 years cannot participate in gang rape
- It was improbable that a woman can be raped in the presence of her husband.
Aim of the Handbook
The Handbook on Gender Stereotypes aims at explaining what stereotypes are and help identify and avoid such stereotypes by:[3]
- identifying language that promotes gender stereotypes and offering alternative words and phrases; and
- identifying common reasoning patterns that are based on gender stereotypes (particularly about women) and discussing why they are incorrect
- highlighting binding decisions of the Supreme Court of India that have rejected these stereotypes and can be utilised by judges to dispel gender stereotypes.
The Handbook contains a list of preferred language to be used against the current use of stereotypical language. Some of the words that made their way to the list are mentioned below:
| Stereotype promoting language (INCORRECT) | Alternative language (PREFERRED) |
|---|---|
| Adulteress | Woman who has engaged in sexual relations outside of marriage |
| Bastard | Non-marital child or, a child whose parents were not married |
| Career woman | Woman |
| Concubine / keep | Woman with whom a man has had romantic or sexual relations outside of marriage |
| Easy virtue (e.g., a woman of easy virtue) | Woman |
| Eve teasing | Street sexual harassment |
| Faggot | Accurately describe the individual’s sexual orientation (e.g., homosexual or bisexual) |
| Fallen woman | Woman |
| Hooker | Sex worker |
| Housewife | Homemaker |
| Provider / Breadwinner | Employed or earning |
| Slut | Woman |
| Transsexual | Transgender |
| Transvestite | Cross-dresser |
| Unwed Mother | Mother |
| Violated (e.g., he violated her) | Sexually harassed / assaulted or raped |
| Whore | Woman |
The Principles of Judicial Doctrine
The Handbook also reiterates the judicial precedents that paved way for building progressive culture for women by eliminating harassment through active confrontation of patriarchal and stereotypical laws overtime.
- The role of law in confronting patriarchy and stereotypes in the case Joseph Shine V. Union of India,[4] wherein the constitution Bench of Supreme Court struck down the offence of ‘adultery’ under Section 497 of the Indian Penal Code, 1860;
- The Supreme Court in another case of State of Jharkhand v. Shailendra Kumar Rai,[5] reiterated its bar on the ban of “two-finger test” and termed it to be irrelevant for determination of rape since it violates the dignity of rape survivors or victims;
- The question of credibility of a survivor or a victim of sexual assault has been posed before the Apex Court a number of times, given that trial court usually refuse to accept the victim’s testimony due to certain perceived inconsistencies. The Supreme Court in State of Punjab v. Gurmit Singh,[6] has ruled against the presumption of not accepting the testimony of rape survivor and even directed the courts to not to display inherent suspicion on the incorrect assumption as a class of individuals lie about sexual violence;
- The Courts should not discredit the testimony of the victim merely because of the absence of physical injuries against the victim. Such situations should be evaluated contextually. The Supreme Court in State of Uttar Pradesh v. Chhotey Lal, [7] observed that it is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal parts of the victim;
- The courts should take into account the facts of the case and the social realities faced by the victim along with the respite of trauma from sexual violence. Therefore, mere delay in filing of FIR should not be treated as a ground to create a doubt on the credibility of complaint. The Supreme Court in a case, State of Punjab v. Gurmit Singh,[8] was faced with a contention where there was delay in filing of FIR and rejected the same.
Conclusion
The Handbook is launched with the perspective to aid and assist judges and raising awareness as to the need to avoid the use of stereotypes that belittle and objectify women in all aspects of life. Women, since ages have been facing numerous kinds of prejudiced beliefs and stereotypes that further reflects the injustice meted out to them.
The Handbook comes as a progressive step that focuses on stereotypes that concern women and not just women, theses stereotypes also impact individuals from across different genders and communities. Thus judges must be vigilant about these stereotypes while delivering a judgement and free from all kinds of conscious and subconscious biases.
[1] Handbook on Combating Gender Stereotypes, Supreme Court of India
[2] (1997) 6 SCC 241
[3] Handbook on Combating Gender Stereotypes, Supreme Court of India
[4] 2018:INSC:898
[5] 2022:INSC:1137
[6] (1996) 2 SCC 384
[7] (2011) 2 SCC 550
[8](1996) 2 SCC 384