Boys Will Be Boys, No More: SC Vows to Cure Judicial Misogyny

Supreme Court has issued directions to judges on how to deal with cases on sexual violence against women

On 18 March, Thursday, the Supreme Court of India passed a 24-page long judgment on ‘dos and don’ts’ for judges while handling cases of sexual crimes against women. In an attempt to remedy ‘patriarchal mindset’ and ‘misogynistic attitudes’ in the judiciary, the court has held that the “use of reasoning/language that tends to trivialise the survivor, is to be avoided under all circumstances”.

While declaring that the ‘boys will be boys’ attitude has no place in the judicial reasoning, the court said:

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility... shakes the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court.”

The Need of Addressing Patriarchal Judicial Orders

On 30 July 2020, in the case of Vikram vs The State of Madhya Pradesh, the MP High Court granted anticipatory bail to a man fearing arrest in a rape case. While granting him protection from arrest, the court directed the accused to ask the victim to tie him a rakhi so that “he can vow to protect her like a brother”.

This motivated Advocate Aparna Bhat, and many other public-spirited activists, to approach the Supreme Court challenging the “dangerous precedent” set by this bail order. They argued that such directions by a court of law trivialise the trauma undergone by survivors and “adversely affect their dignity”.

While seeking clear directions to all courts to refrain from imposing “irrelevant, freaky or illegal bail conditions”, the appellants submitted that no bail condition or judicial observation shall permit the accused to meet/have access to the survivor and her family members.

Gender Violence Is Often Shrouded in a Culture of Silence

At the outset, the court recognised that gender violence is most often unseen or “shrouded in a culture of silence”. It noted that economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence or abusive behaviour.

Therefore, the court reiterated that the culture of silence around sexual violence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women.

Relying upon the previous judgments of the apex courts and the national statistics on crimes against women, the court highlighted that in cases of sexual offences, the concept of compromise, especially in the form of marriage between the accused and the prosecutrix shall not be thought of, as any such attempt would be offensive to the woman’s dignity.

Ending The 'Boys Will Be Boys' Attitude

The Supreme Court didn’t shy away from pointing out how the patriarchal and misogynistic mindset in the judiciary, both explicit and latent, sometimes trivialise the trauma caused to survivors of sexual violence.

Such attitudes, the court observed, not only trivialises different kinds of acts that fall within the rubric of sexual violence but also romanticises them.

Social attitudes typically characterise this latter category of crimes as “minor” offences. Such “minor” crimes are, regrettably not only trivialised or normalised, rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes, which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors.

Supreme Court of India

Therefore, the court amply clarified that reinforcement of stereotypes in judicial orders through considerations that are extraneous to the case would impact the concept of fairness.

Addressing Judicial Stereotyping

In order to understand why such judicial orders are passed in the first place, the court turned to the concept of ‘judicial stereotyping’. Simone Cusack, an Australian lawyer, defined judicial stereotyping as a practice of judges ascribing to an individual specific attribute, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women).

The court recognised that due to their incapability of challenging harmful stereotypes, judges can often perpetuate such prejudices in legal proceedings.

“Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice.”

Supreme Court of India

The court clearly recognised that the stereotyping of an ‘ideal rape victim’ undermines the complex lived experiences of sexual assault. These ‘rape myths, the court said, credibility of those women who are seen to “deviate too far from stereotyped notions of chastity”. 

Therefore, the court highlighted, imposing conditions such as community service that implicitly diminish the harm caused to the survivor, holds the potential of subjecting such survivors to “second victimisation”.

Directions to Remedy Judicial Stereotyping

In order to remedy the problem of judicial stereotyping of survivors of sexual violence, the court issued the following directions:

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 a 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, behaviour, 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 power and jurisdiction.
6. Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatisation of the prosecutrix, during the proceedings, or anything said during the arguments.
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.

Radhika Roy, a lawyer and a legal journalist, told The Quint that the proliferation of misogynistic stereotypes in judgements rendered by the Trial Courts, High Courts and even the Supreme Court, the verdict in Aparna Bhat is truly the need of the hour. She added that the order is sensitively-worded and provides a ray of hope to all women (and men) who have been at the receiving end of the patriarchal mindset that has been perpetuated by the criminal justice system.

Gender Sensitisation Training for Judges: Is It Enough?

In order to address the problem of judicial misogyny from a reformative point of view, the court recommended gender sensitisation for judges as well as public prosecutors.

The court mandated for a module on gender sensitisation be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasise the prominent role that judges are expected to play in society, as role models and thought leaders. 

However, it is difficult to accept that such training modules would be enough to eliminate the deep-rooted misogyny at all levels of the judiciary.

Advocate Karuna Nundy believes that while the present judgment barred specific, patriarchal deviations from the law that damage women, it doesn’t go far enough.

The NJA’s work in gender sensitisation is robust, I have facilitated judges trainings in gender justice. That two hours is not enough. Until judges are selected promoted and penalised systematically for furthering or limiting gender justice, it will be elusive.

Advocate Karuna Nundy

The gender sensitisation training shall also be inclusive of the various complexities of gender. Gaurav Rana, a criminal lawyer practising in Pune, told The Quint that gender sensitisation should include the unequal treatment faced under the law by the non-mainstream genders, such as the transgender community.

While the present judgment is a welcome step towards making the criminal justice system more inclusive and considerate towards the unique lived experience of women, the questions still remain on how such orders actually get translated on the ground.

This is not the first time that the Supreme Court has addressed the problem of judicial orders that trivialise sexual violence, but it is a timely reminder of how judicial reasoning ought to be.