‘Good Wife,’ ‘Eve Teasing’ and ‘Weakness’: The No-Nos in SC’s ‘Gender Stereotype’ Handbook
New Delhi: The Supreme Court has brought out a 30-page handbook against gender stereotypes so that judges and others can use appropriate terms in court.
Bar and Bench has reported that Chief Justice of India D.Y. Chandrachud said while releasing the book that it "identifies stereotypes used by courts and how they are unwittingly used." The CJI stressed that the book does not mean to criticise earlier judgments but should help judges avoid it by "recognising language which leads to stereotypes."
In March, the CJI had said that the court would soon reveal a legal glossary of inappropriate gendered terms.
The handbook handles the nature of gender stereotyping that pervades judicial decision making and the necessity to understand them and their impact.
It contains a long list of phrases and words which perpetuate a stereotype and suggests alternative language for them.
In place of "adulteress," it suggests "woman who has engaged in sexual relations outside of marriage."
An "affair," should be "relationship outside of marriage."
Words like "concubine" and "prostitute" are to be replaced with "woman with whom a man has had romantic or sexual relations outside of marriage" and "sex worker," respectively.
The handbook suggests just using the word "woman" for a significant number of pejorative phrases and words like "career woman," "chaste woman", "woman of easy virtue", "harlot," "whore," "slut," "seductress," and "woman of loose morals."
'Stereotype versus reality'
It lists 'stereotype' and 'reality' against each other to illustrate the distance between the two. For instance, a stereotype is "Women are overly emotional, illogical, and cannot take decisions," however, the reality listed against this stereotype is, "A person’s gender does not determine or influence their capacity for rational thought."
The handbook, crucially, cites when judges have perpetuated such stereotypes.
Against the stereotype that "unmarried women (or young women) are incapable of taking important decisions about their life," is a footnote that cites a 2017 judgment by the Kerala high court which said, "A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways."
The Supreme Court reversed this decision in Shafin Jahan v. Asokan K.M. in 2018, the handbook notes. "The High Court has lost sight of the fact that she is a major, capable of her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases," it had said.
Another table outlines some common stereotypes about the gender roles ascribed to men and women, and why they are incorrect.
Among stereotypes listed is one that courts in India frequently deal with – "wives should take care of their husband’s parents." The handbook says, "The responsibility of taking care of elderly individuals in the family falls equally on individuals of all genders. This is not the sole remit of women."
Role of stereotypes in sexual violence
The handbook, most significantly, devotes quite a few pages to stereotypes that are often applied to men and women in the context of sex and sexual violence and explains why such assumptions are wrong. It handles how courts have opined on women's conduct when they have been victims of sexual crimes and also the question of caste atrocities in this regard. Some examples from that section are cited below:
| Stereotype | Reality |
| Women who dress in clothes that are not considered to be traditional want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault. The clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. | Women are capable of verbally communicating with others and their choice of clothing represents a form of self-expression that is independent of questions of sexual relations. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way. |
| Women who consume alcohol or smoke cigarettes want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault. | Women, like all other people, may consume alcohol or smoke cigarettes for a variety of reasons including for recreation. The consumption of alcohol or use of tobacco is not an indication of their desire for sexual relations with a man. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by drinking or smoking. |
| Women who are sexually assaulted or raped by men complain about the injustice immediately. If they complain after a time, they are lying. | It takes courage and strength to report a sexual offence because of the stigma attached to them. The stigma attached to sexual violence makes it difficult for women to disclose the incident to others. Women may therefore register a complaint after a lapse of some time, when she thinks she is able to. Further, as noted above, several other factors such as lack of familial support or fear of repercussions may cause a survivor / victim to delay their reporting. |
| 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. | 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. |
| A woman who has previously had sexual relations cannot be raped because she has “loose morals” or a “loose character.” | A woman who consents to sexual activity with one man does not consent to sexual activity with all men. Similarly, a woman who consents to sexual activity with a man at a particular instance does not ipso facto consent to sexual activity with that same man at all other instances. A woman’s character or morals are unrelated to the number of sexual partners she has had. Her sexual history does not define her and must not influence criminal proceedings. Section 53A of the Indian Evidence Act 1872 attempts to combat this very stereotype by prohibiting lawyers from adducing “evidence of the character of the survivor / victim or of such person’s previous sexual experience” where the question of consent is in issue. |
This section also deals with and debunks topical stereotypes like "men are unable to control their sexual desires," "it is not possible for a man to rape a sex worker," "transgender individuals cannot be raped," or that "Indian women behave differently from Western women or women of other countries after a man has sexually assaulted or raped them."
Both in this section and later, the handbook stresses that delay in filing an FIR or complaint cannot be mechanically used to create
doubt in a case of sexual violence.
"The offender could be an employer, neighbour, family member, or friend creating several complications in immediately reporting an instance of sexual violence," the book says.
The handbook notes that women have historically faced numerous prejudiced beliefs and stereotypes which have impeded their access to fair and equal treatment within society and the justice system.
"The Indian judiciary must recognise the deep-rooted impact of gender stereotypes and actively work to dismantle them from its thinking, decision-making, and writing," it says, advocating for a more inclusive language to combat harmful patterns of thinking.
As reported before, this glossary has been prepared by a committee chaired by Calcutta high court judge, Justice Moushumi Bhattacharya. Others involved in this included former judges, Justice Prabha Sridevan and Justice Gita Mittal. Also, Professor Jhuma Sen who is currently an adjunct faculty member at the West Bengal National University of Juridical Sciences in Kolkata.
Last year in September, in a first-of-its-kind move, the Tamil Nadu government gazette published a glossary of LGBTQIA+ terms, to deepen sensitisation over other aspects of gender.
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