Combating Everyday Gender Stereotypes in the Courtrooms

 The Supreme Court of India recently published a Handbook on Combating Gender Stereotypes, which highlights how gender-unjust terms are used in pleadings, orders, and judgements to reiterate common stereotypes about women and end up denying them justice. It suggests using alternate terms. 

In my article on Combating Everyday Gender Stereotypes in the Courtrooms (https://countercurrents.org/2023/10/combating-everyday-gender-stereotypes-in-the-courtrooms/), I argue that to ensure gender justice, what is required is not only countering and challenging the stereotypes in the day-to-day language deployed in courtrooms but also changing the patriarchal mindset. The war against women started in the minds. 

Patriarchy manifested itself in the form of sexism, misogyny, toxic masculinity, ghettoizing, and labelling, women, and therefore, it is essential to consciously examine the ways subjectivities operate daily, dismantling the sexist biases, shattering prejudices, countering myths and misogyny, developing an empathetic approach to judging, and more importantly, rethinking the courtrooms as the constructive spaces where domination is contested and the entrenched power structures are demolished by those at the margins.

The major arguments are that 

Gender Stereotyping is Harmful

This patriarchal stereotyping in everyday life is the cause as well as the culmination of thousands of years of oppression of women. It is adapting, reshaping, updating, and acquiring vicious forms. It is a systemic accumulation of power combined with the forces of neoliberal power, weaved into the tapestry of capitalism, racism, privileges, and nationalism[3]. 

Gender stereotyping is considered harmful as it perpetuates inequalities, reinforces negative impacts, reiterates discrimination, violates human rights, and limits fundamental freedoms[5]. Gender discrimination can result in depriving women of their educational and professional opportunities.

In extensively patriarchal societies, this otherization and marginalization caused by gender stereotyping began before the birth of a girl child and continued thereafter, causing women’s subjugation within their families and communities. In extreme forms, stereotyping may result in creating a hostile environment. Consequently, women may face atrocities, dehumanization, killings, rapes, and the perpetuation of grave injustice.

Courtrooms do not exist in a vacuum

Courtrooms are powerful spaces where dominance is challenged and patriarchal culture could be altered. In several cases, the courts have rendered decisions to counter the entrenched stereotypes. For instance, the Bombay High Court in a matter where a husband filed a petition to obtain divorce, alleging that his wife was not doing any household work refused it stating that “In modern society, the burden of household responsibilities has to be borne by both husband and wife equally”. In Kannaian Naidu v. Kamsala Ammal (2023), the Madras High Court held that a wife, as a homemaker, is entitled to an equal share of the marital property as she performed household chores when her husband engaged himself in gainful employment to accumulate sufficient savings to buy assets. In terms of women’s rights to marital property, this is a welcome decision.

Also, in several cases, positive decisions have helped to shatter entrenched stereotypes. For instance, in ABC v. State of Delhi NCT (2015), the rights of single mothers are prioritized over those of a father; in Navtej Singh Johar v Union of India (2018), the apex court has decriminalized homosexuality and elaborated on LGBT rights; in Joseph Shine v Union of India (2019), the Supreme Court struck down Section 497 IPC that criminalized adultery; in Vineeta Sharma v Rakesh Sharma (2020), the SC elaborated on the Hindu daughter’s right to property as a coparcener; and in the Indian Young Lawyers Association v. State of Kerala (2018), the SC allowed entry of women in the age group of 10 to 50 years in the Sabarimala temple.  In all such decisions, centuries-old exclusionary and discriminatory stereotypes have been stuck down to pave the way for justice for the oppressed and marginalized sections.

However, in the majority of cases, the courts are reinforcing patriarchy. Moreover, in a patriarchal setup, access to the legal system is not easy for women[6], and the state has further failed to guarantee justice to the limited number of women who knock on the doors of the court. The courts, as part of patriarchal society, have upheld the power structures to shield the resourceful[7]. The Committee on the Status of Women in India, in its report titled Towards Equality, noted the role of both the judiciary and executive in the dismal state of affairs because neither could invest in educating women about their legal rights nor could it effectively create mechanisms to interpret and enforce the laws constructively.

Discrimination in courtrooms or judicial stereotyping results in the violation of the rights of women. The system that should be upholding their rights is denying women justice[8]. Gender stereotyping is evident through the female exclusion in the higher echelons of the judiciary[9].  Only 4 percent of women have been appointed as judges in the Supreme Court in the past seven and a half decade[10]. The percentage of judges in the High Courts remains at 11.8 percent, whereas only 15 percent of registered lawyers are women[11]. Moreover, the website of the National Judicial Data Grid shows that only 8.21 percent of total cases are filed by women. Courtrooms, therefore, are hostile places for women.

Also, prejudice is prevalent not only in the language used in the courts but also in the biases reflected in investigations, interrogations, interpretation of the facts and circumstances of the case, questioning the victims and the witnesses, and also while convicting and sentencing. These different standards for men and women operate in the courtrooms and reflect in the decisions by the courts while adversely affecting the rights of women[14].  

Such prejudices and beliefs reproduce patriarchy and reiterate gender-biased norms while entrenching the subjugation of women[16]. These paternalist notions view women as irresponsible, economically and emotionally dependent on men, place high value on the chastity and virginity of women, and justify men controlling women. Negative beliefs and prejudices against women prevent establishing the culture of equality; rather, at times, these propagate and reinforce the culture of violence with impunity.

Decisions in cases of violence against women or civil rights are frequently based on the harmful stereotypes that undermine women’s rights. For instance, in a spate of cases, the courts have ordered to measure the loyalty and fidelity of a woman while assassinating her character through the DNA test. These courts are not dwelling on the fact as to how a man should prove his loyalty or faithfulness to his wife. Many parameters are deployed to measure the ` goodness’ of wives, but for men, no such scales have been developed. In many situations, children are labelled as bastards, and women are stigmatized for the wrongful actions committed by men. In cases relating to violence, it is the woman who is being victimized – her work, her character, her personality – that is being questioned. A man, even if he is a drunkard, vile, or violent, is not viewed with suspicion.

Stereotypes operate in courtrooms in cases relating to sexual violence

Gender stereotyping is evident not only in the decisions but also in the ways the law is being made, implemented, and enforced. For instance, marital rape has not been criminalized till now, and the controversial provisions relating to the restitution of conjugal rights still exist. 

Moreover, the judgements in cases such as those of Mathura[18], or Bhanwari Devi’s[19] reflect how women are subjugated in courtrooms. Neither Mathura nor Bhanwari Devi receive justice, though their struggles have led to significant legal amendments. The decision in Mohd Farooqui’s matter and other similar cases show how the regressive patriarchy is persistently ripping apart the framework of justice[20]. The concept of consent is twisted to deny justice to women. Gender stereotyping results in victims blaming. SLAPP suits are filed to demoralize the complainants, and all these led to the denial of justice. Those in powerful positions use their might to silence women and prevent them from raising their concerns.

More recently, in several decisions pronounced by the courts, the rape victims have been forced to tie the rakhi[21] or to marry their perpetrators[22]. Discriminatory beliefs are reiterated through the verdicts. The Hathras rape case, the Unnao case, the granting of remission to the convicts in Bilkis Bano’s case on 15 August 2022[23], or the way the women wrestlers’ case is being handled, all demonstrate how the culture of impunity persists and negates the progress made in terms of gender justice[24]. More than the stereotypical language, it is the anti-women, misogynist, visible, and invisible actions that have harmed the cause of gender justice.

Stereotypes in courtrooms in cases relating to marriage and domestic violence

It is not easy for a woman to receive justice in cases relating to domestic or dowry-related violence[25]. Yet, while dealing with the cases relating to maintenance, divorce, or custody, the courts have evoked harmful stereotypes relating to a `good wife’ versus a `bad wife’, which have adversely affected the interests of women litigants. For instance, in a recent decision, the Delhi High Court observed that “a wife who refused to observe the Karva Chauth fast didn’t acknowledge husband” as a basis of cruelty and granted divorce to the man[26].

The symbols worn by married women such as wearing of mangalsutra or sindoor are construed as the marks of honor and a sign of being a `good woman’, and if one is not doing so, this is considered cruel to a man. These hold a woman as a property of a man which assumingly provides protection against advances from other men. In S. Hanumantha Rao v S Ramani (1999), the apex court adjudicated that the wife’s unwillingness to wear mangalsutra should be treated as evidence of mental cruelty against her husband. Battered bodies and shattered minds are neglected. In Bhaskar Das v Renu Das (2020), the Gauhati HC held that refusal to wear a sindoor by a Hindu wife is tantamount to her unwillingness to continue conjugal life and amounts to cruelty based on which a husband can obtain divorce. 

In all such cases, the courts uphold conservative morality, decide a woman’s place in society, and regulate her being, her interactions, and her relationships, including what she should wear. The courts reinforce male supremacy and reiterate the position of women as second-class citizens. A woman’s body is treated as a property belonging to men to be controlled by the state.

Similarly, the state in Karnataka ordered to ban on the hijab worn by young Muslim girls on the educational premises, whereas in Hadiya’s case, the NIA, a terror agency, was deployed to find out if a young woman was entangled in the web of love jihad. These decisions pointed out the ways preconceived notions, biases, and prejudices operate within courtrooms. The female body, away from the parameters of religion, no matter how it is dressed, covered, decorated, or exposed, becomes a site of control by the male-dominated state. Custodial torture in homes or violence against women in public spaces are all neglected. The courts routinely disrespect women’s worth and being and infantilize them. What is established through such decisions is that the state knows what is best and that women are incapable of making decisions and are not trustworthy; therefore, the system must decide for them.

Myths and misogyny operate frequently in courtrooms. For instance, a wife who insists on living separately is painted as a cruel woman because the conservative heteronormative norms about marriage are upheld by the court which stated that “unlike in the West, in India, it is not usual for the son to get separated from his family and his wife becomes integral to it”[27]. This argument is embedded in the patriarchal construction of marriage, which mandates that a woman must leave her natal home to join her husband after marriage. For a man, as a `pati-parmeshwar’ or a master, no such expectations are raised. Such regressive cultural norms pushed by the courts treat women as sub-humans.

In many of the other decisions, the courts have evoked terms such as `misuse and abuse of law’, instead of `underuse’ of law, `disgruntled women,’ in place of `battered women’, and `legal terrorism’, rather than `patriarchal terrorism’ while adjudicating the cases relating to domestic violence. The androcentric courts demonstrate excessive sympathies or `himpathy’[28] with the male perpetrators of violence. while women complainants are being blamed for harassing men and their families[29]. The cases of extreme violence are dubbed ordinary `domestic dispute’ as evidenced from the low rate of conviction in cases registered under Section 498A IPC (the law that criminalizes domestic violence). To `save the families’, women are coerced to go back to violent homes without any guarantee of safety and security[30]. These stereotypical ideas that operate in courtrooms strip women of their agency.

Judicial stereotyping results in the denial of justice to women

As demonstrated above, the decisions made by the courts in matters where women are litigants are based on their preconceived beliefs rather than the relevant facts or impartial interpretation and application of law. When judges ascribe to stereotypes, this affects the credibility of women and results in the miscarriage of justice. Also, in many situations, the judges perpetuate stereotypes by failing to challenge the negative beliefs perpetuated by the parties or the lower courts[31]. 

The courts are the custodians of constitutional values. The courtroom is a space where dominance is challenged and social, economic, and political justice is facilitated. The primary duty of the court is to uphold the rule of law. However, often, deeply embedded in the layered, hierarchical, patriarchal society, the courts reiterate masculine values and androcentric morals, ignoring the fact that they are supposed to dispense justice as per the constitutional provisions.

Towards empathetic judging and gender-sensitive courtrooms

West[33] took into account the moral principles of focusing on the minimization of harm and suggested prioritizing the ethics of care while dispensing justice. Similarly, Fraser[34] identified three dimensions of justice, which include economic redistribution, cultural recognition, and political representation. Justice, therefore, is a comprehensive, multi-dimensional concept that involves moral and social perspectives and goes beyond righting wrongs to prioritize democratic ideals with compassion.

Nussbaum[35] called for expanding legal education to include the reading of literature to generate the value of empathy. According to her, the idea of `literary art’ or `equitable’ judging draws attention to misery. Elsewhere, Nussbaum[36] suggests that the idea of citizenship, public life, and judicial reasoning is based on compassion.

Hence, feminist theorists have drawn on the legal framework to comprehend the entrenched historical, socio-political, and intersectional underpinnings lying at the roots of gender injustice and suggested different ways to promote an alternate justice paradigm. The need is to ensure that the voices and experiences of the victims and survivors of violence are heard and their concerns are addressed effectively and fairly. Ignoring the testimonies of survivors affects their credibility and results in the denial of justice. An empathetic and compassionate approach of the judiciary towards women litigants in the long run may facilitate a conducive environment.

Enforcing the international provisions in the human rights laws, including those mentioned under the CEDAW, is vital. It is essential to ensure that the judges comply with human rights obligations in practice and implement global norms. For instance, the Bangalore Principles of Judicial Conduct[37] identify a range of values, including equality, independence of the judiciary, integrity, diligence, impartiality, restraint from making unreasonable comments, and fairness, among others, to which the judges should adhere while performing their duties.

Besides focusing on the language used in the courtrooms, what is required is the constant monitoring and enforcement of judicious reasoning and the avoidance of biases while interpreting and analyzing the facts, or applying the law. This is with the object of enforcing victim and survivor-centered justice and ensuring dignity for women as citizens and humans.

Enhancing the judicial capacity in terms of gender sensitivity is yet another step that could facilitate effective and efficient justice. Enabling diversity within the judiciary to ensure pluralist views is vital for a democratic society, as this will “preserve and improve public trust and confidence in its credibility, legitimacy, and impartiality.”[38] 

More importantly, increasing the representation of women and marginalized groups in high positions in the judiciary “will ensure a more balanced and impartial perspective on matters before the courts, eliminating barriers that have prevented some judges from addressing certain issues fairly”.

Courts can have a positive and transformative impact by ending the culture of impunity, eliminating and debunking perilous stereotypes, and ensuring gender justice. 

It is important to dismantle the toxic misogyny that operates in courtrooms. 

By sensitively listening to the women’s voices, giving credibility to their testimonies, and awarding effective, time-bound, quality, gender-sensitive remedies, enhance access to justice.

In short, to achieve the goal of gender justice, it is essential to dismantle prejudices, shatter harmful beliefs, negate intoxicating sexism, counter the myths and misogyny that operate in courtrooms, and avoid creating a hostile environment for women.

To end the culture of violence against women with impunity, as happened in Manipur and other places, and to ensure justice for millions of Mathuras, Manormas, Maya Tyagis, Bhanwari Devis, Hadiyas, and Bilkis Banos, the courts need to reiterate democratic constitutional ideals while negating stereotypes.