The ‘Ideal’ Indian Woman? Why Judiciary’s Remarks Are Perplexing

The notions around who  an Indian woman ‘should be’ are found in a spate of observations by the high courts.

(Photo: Arnica Kala/TheQuint)

Indian woman is who she is and she can’t be understood as a uniform or unitary trope. The implicit notions around who ‘she should be’ are found galore, more recently in the spate of observations by India’s high courts.

While Justice Krishna S Dixit of the Karnataka High Court was hearing the anticipatory bail of one B Rakesh, on charges of raping a woman on the false promise of marriage, he is said to have said that it is ‘unbecoming of an Indian woman’ to fall asleep after having been ‘ravished’. The high court on 2 July expunged these remarks, but the decision to grant bail remains unchanged.

Within a week of this, Chief Justice Ajai Lamba and Justice Soumitra Saikia of the Gauhati High Court, when granting divorce to a couple, observed that ‘not wearing sindoor (vermillion) and shaka (conch shell bangle) by the woman shows refusal to accept marriage.’

Without going into the merits of these cases, what is deeply perplexing is this ‘idea of an Indian woman’ that the judiciary seems to articulate through its observations from the Bench, observations that are often a key part of the courts’ decisions.

The Notion Of ‘Our Women’ & How It’s Shaped

Legal Realists have claimed for a while that judicial decision-making does not occur in a vacuum and is actively shaped by the discretion of the judges. More specifically, Critical Race theorists point out that ‘identity’, ‘political preferences’, ‘empathy for the victim or the lack of it’ are all factors that shape decision-making by the judges. However, the recent comments by some of the judges require us to understand what exactly is this notion of ‘our women’ and how is it really shaped?

There are three assumptions that seem explicit in the recent observations of the said High Court orders.

• First, ‘Indian women’ are a homogenous category, who all behave in a certain way.

So how could she sleep after being ravished, as the Karnataka High Court observed? How can she refuse to wear sindoor, as the Gauhati HC said?

The implicit assumption here being that they all do and are supposed to behave in a certain way.

• Second, ‘consent’ of the woman is a binary – so it either exists or does not exist.

So, if the woman went out drinking with a man, how can she claim lack of consent, as said by Karnataka High Court. If she accepted marriage and wants to continue in it, how can she refuse to ‘consent’ on wearing these symbols of a married woman, as asked by the Gauhati High Court.

Notably, there was no discourse on the history of these symbols themselves – sindoor and shaka required of a married woman and its patriarchal origins.

• Third, if the woman needs protection, how can she also exercise her ‘choice’?

So if she wants marriage, why insist on staying separate from parents of the husband, as the Gauhati High Court wondered. If she goes with him somewhere and spends a night, how can she now allege ‘rape’, as the Karnataka High Court implied.

Why Do We Rarely Challenge Baseless Stereotypes?

These concerns give an impression that the Indian woman remains an enigma for some of our judges. She cannot be ‘this’ and ‘that’.

This dilemma is, unfortunately, not limited to some of our judges alone, but is symbolic of the deeper tension lines that exist in a patriarchal society, where feminists question the status quo.

For example, how can a woman be in public life, and not choose sari (‘our’ traditional attire)? Or how can she be in university/college and choose to wear ‘skirts’? Or how can she be in business but behave ‘like men’ when she is being ‘bossy’ or ‘dominating’?

We rarely challenge these baseless stereotypical notions that do not capture or define what being a woman truly is about. In any case, whatever it is about, is for every woman to choose.

The difficulty, however, with the legal system is whether to reward or punish a human for their gender.

Sometimes, it ends up doing both, and to all genders.

If women need ‘protection’, then how can they claim ‘equality’, because isn’t it implied that they are the weaker sex. If women are equal, then why have affirmative action for them or laws which only provide for their rights such as Domestic Violence Act, or Prevention of Sexual Harassment at Workplace Act, which only allow women to report a crime – and not the men.

‘Stop This Obsession With Binaries’

This bind, which is not addressed directly often by the lawmakers and the policy makers, shows up through the cracks every now and then. The way to address it is:

• First, to appreciate the fluidity of the gender discourse
• Second, to challenge the obsession with binaries
• Third, be open to give up one-size-fits-all approach

For instance, in a series of judgments by the Supreme Court and the high courts, one can see the binary of the Indian woman versus the Western woman or of the good woman versus the bad woman at play.

In Bharwada Bhoginbhai Hirjibhai vs State of Gujarat 1983 AIR 753, the apex court went on to elaborate how Indian women’s testimony on rape is more likely to be true than their western counterparts.

In D Velusamy vs D Patchaiammal (2010) 10 SCC 469, Justice Markandey Katju, penning the judgment against granting maintenance to a second Hindu wife, remarked:

“If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”

This position was later overturned by a Bench with a female judge, Justice Gyan Sudha Mishra, in 2011.

Similarly, in the State of Punjab vs Gurmit Singh & Others 1996 AIR 1393, the Supreme Court took strong objection to the observations of the lower court that disbelieved the testimony of a 16-year-old rape victim by stating that since the possibility that the prosecutrix was habitual to sexual intercourse, reliance cannot be placed on the testimony of ‘such a girl’.

This binary lens of viewing the Indian woman also does her disservice by pitching women against women, and creating a framework that only some women are reliable and worthy of ‘protection’.

So, a woman who chooses to stay with her husband, and for whatever reasons, refuses to stay with the husband’s parents, or refuses to subject herself to wearing sindoor or conch bangles, is somehow seen as deserving divorce.

Such observations leads to the judges bringing in all their biases, cultural notions, and assumptions into the judgment, without its due justification in law. It is also devoid of empathy.

Indian Women As The Modern Day Draupadi

While Draupadi was derobed physically in the royal court – full of kings and sages – the modern-day woman is derobed every day in the halls of our courts when judges make observations that reeks of their cultural biases, or even when they watch silently the opposite lawyer making undue aspersions on the character of a woman (complainant), or shorthand comments on a female lawyer.

The misogyny surrounding the notion of an Indian woman cannot be uprooted in a day or two. It will require systemic efforts over a long period of time. But it begins with calling out, speaking up, and not allowing silence to shroud the observations that claim to impose a set standard by owning, defining or possessing women.

Any discourse or language anywhere that seeks to impose a particular structure or understanding on women should be looked with suspicion, as more often that not, by eroding the fluidity in gender discourse, it indirectly ends up replacing it with toxic masculinity.

Judges Observation A Reflection Of What They Are Reading?

Reinventing the ‘idea of an Indian woman’ requires a recognition of her agency, both in the language and the content of our laws, which requires massive judicial sensitisation and reforms in the outdated laws. The notion that all women and men are worthy of respect and dignity, not just those who fit our cultural biases, needs to be dusted from the shelves of international human right conventions and our own Constitution and brought to life.

There is also a need for an active enquiry into what shapes our ideas and beliefs about gender identities and gender roles.

Justice Katju himself cited Leo Tolstoy’s novel Anna Karenina, Gustave Flaubert’s novel Madame Bovary, and the novels of the great Bengali writer Sarat Chandra Chattopadhyay in D Velusamy vs D Patchaiammal case, which indicates that the ‘idea of the Indian woman’, who she is and who should be, is shaped in the minds of the judges based on what they are reading.

We will perhaps not know what the Karnataka and Gauhati High Court judges who made the observations are reading, but their conceptions of ‘Indian women’ are nonetheless a matter of concern. We need to call out misogyny and stereotyping not just in judicial pronouncements, but in our homes, offices, friend circles, and wherever else we may find it.

Say something good, when you see something right. But when you see something bad, at least say something.

This small slogan will change the world. It will also help us see the Indian woman as who she is, and not what we want her to be.

(Avani Bansal is an Advocate in the Supreme Court. Write to her [e-mail]. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)