Judges should avoid misogynistic comments in gender violence cases: Supreme Court

Many crimes against women go unreported. That’s partly due to fear of stigmatisation. Courts are meant to be places where they are treated with care.

Judges should avoid misogynistic comments in gender violence cases: Supreme Court
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The Supreme Court on Thursday said judges must desist from misogynistic and patriarchal stereotypes by commenting on dress, behaviour, past conduct or morals of a survivor of gender violence and strongly disapproved courts suggesting marriage between an accused and a victim as a compromise in rape and molestation cases.

Emphasising the need to avoid trivialising a survivor of gender violence, a bench of Justices A M Khanwilkar and S Ravindra Bhat said judges can play a significant role in society rejecting harmful stereotypes and have an important responsibility to base decisions on law and facts in evidence, and not engage in gender stereotyping. It said reinforcement of such typification in court utterances or orders extraneous to the case would impact fairness of court proceedings. The SC directed judges to undertake a course on gender sensitisation.

The court passed the order while quashing a Madhya Pradesh HC order asking an accused to get rakhi tied on his wrist from the survivor as condition for bail. “Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment.”

Many crimes against women go unreported. That’s partly due to fear of stigmatisation. Courts are meant to be places where they are treated with care. However, as the SC observes, they are often places characterised by “paternalistic and misogynistic attitudes”. There is, therefore, a crying need to sensitise the judiciary in matters related to gender.

This court therefore holds that the use of reasoning/language which diminishes the offence and tends to trivialise the survivor, is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. — to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or “Indian” woman, or that she had called upon the situation by her behaviour, etc,” said Justice Bhat, who authored the verdict for the bench.

The apex court also held that court should not “condone or diminish the harm caused by the accused” by asking parties to explore mediation and letting off the accused by imposing conditions like community service, plantation of trees, contributing to any particular charity relief fund or tendering apology to the survivor.

The law does not permit or countenance such conduct, where the survivor can potentially be traumatised many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behaviour what is a serious offence,” it said.Referring to various orders passed by lower courts and high courts in which unnecessary observations were passed, the bench said such stereotyping views might compromise the impartiality of a judge’s decision and it is their role to be impartial in words and action, at all times. “The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction,” the bench said.

Judges should ensure there is no traumatisation of the prosecutrix during the proceedings and not use any words, spoken or written, that undermine or shake the confidence of the survivor in the fairness or impartiality of the court, it said.

It said, “Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the CrPC.” “In other words, discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail,” it said.

In the Madhya Pradesh case, the court said the act (crime) perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be, the court said.

“Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (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 dramatise 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," it said.