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On the Basis of Sex

Title inspired from 2018 American film based on the life of Justice Ruth Bader Ginsburg

Passing sexist and misogynistic remarks is nothing new in most of the conversations in our country. However, what is most shocking is that such remarks and comments also find a place in the Judgments passed by our Courts.

Most recent being the 2020 Order of Madhya Pradesh High Court imposing the following bizarre condition for granting Bail to a man accused of sexual harassment:
The applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. 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. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant � Vishal for purchase of clothes and sweets.

The order drew flak from every sensible citizen of this country. Thankfully, the Supreme Court of India has set aside the above order and it has been observed that:
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.

The act 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 law criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes.

It is important to note that the society looks up to Judges. Judges have always been considered to be rational, fair and just. If such statements come from Judges, it only leads to strengthening gender stereotypes. It leads to trivializing of offences on the basis of sex. It gives power to people and institutions that dictate how women should behave or what a good Indian woman is supposed to be like. If Judges derelict this duty of upholding equality at all costs and not discriminating on the basis of sex- they risk inflicting greater injustice on the survivors of gender based offences.

After going through plethora of such cases in which sexist orders have been passed and greater harm has been inflicted on survivors on the basis of their sex, the Supreme Court has now passed the following directions That henceforth,
  1. Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
  2. where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
  3. In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
  4. 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 Cr. PC. In other words, discussion about the dress, behavior, or past conduct or morals of the prosecutrix, should not enter the verdict granting bail;
  5. 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;
  6. Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and
  7. Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Further, it has been directed that, 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:
  1. women are physically weak and need protection;
  2. women are incapable of or cannot take decisions on their own;
  3. men are the head of the household and should take all the decisions relating to family;
  4. women should be submissive and22 obedient according to our culture;
  5. good women are sexually chaste;
  6. motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
  7. women should be the ones in charge of their children, their upbringing and care;
  8. being alone at night or wearing certain clothes make women responsible for being attacked;
  9. a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or has asked for it;
  10. women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
  11. testimonial evidence provided by women who are sexually active may be suspected when assessing consent in sexual offence cases; and
  12. lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

While the Supreme Court had to be moved to issue the above directions, Delhi High Court on the other hand long back in 2013 had taken suo-motu cognizance of the remarks made by a trial court judge in a rape case. The Trial Court had remarked that young girls first eloped with their lovers and on being caught by their families- cried rape. Justice Pradeep Nandarjog and Justice Kameswar Rao had observed that the remarks were prima facie insensitive. They also noted that 'sweeping observations against girls are 'not based on the evidence or record' and 'they appear to be the result of the experience of the Judge. The Judge has imparted his personal knowledge pertaining to females in the decision making'.

The bench had further observed that:
'Judicial pronouncements which are gender biased may be used as a standard by the Police personnel and prosecutors in making decisions how the should investigate and prosecute cases'.
Prior to the present recent Judgment of the Supreme Court setting aside the 'rakhi' tying order of the Madhya Pradesh High Court, there have been various judgments which clearly stereotyped women and were outright sexist. Some examples are listed below:
  1. Hadiya's case [2017][Kerala High Court]
    A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways and � her marriage being the most important decision of her life, can be taken only with the active involvement of her parents.
  2. In 2012, Justice P.B. Majumdar of the Bomaby High Court, during a divorce hearing, urging a woman to follow her husband to a posting in Port Blair remarked that-
    If Sita could join Ram in vanvas, then why can't you go?
  3. In Rakesh B. v. State [2020], the Karnataka High Court granted bail to an accused alleged to have committed rape, and made the following remarks regarding the victim's conduct-
    ' nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;
  4. In Vikas Garg v. State of Haryana [2017] ,the High Court of Punjab and Haryana granted bail to three persons accused of committing Rape and made observations regarding the prosecutrix�s casual relationships, promiscuous attitude, voyeuristic mind.
  5. In Narender v. K.Meena [2016], a bench of Supreme Court while overturning an order in the favour of the wife observed that:
    in India, generally people do not subscribe to western thought, whereupon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.
In light of the above discussion, it must be borne in mind that Judges are no special beings and are very much a part of our society. They could be our uncles-Aunts, cousins, friends or neighbours. It remains to be seen how successful the 'directions' of Supreme Court will be in ridding our judgments of sexism and misogyny. Nevertheless, it is an important first step and we can only hope that it brings about a 'radical change' in our thinking and attitude towards women as a society.

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