The Supreme Court disapproved of the Calcutta High Court’s observations on adolescent sexual behaviour last month. Earlier, in August 2023, it had released a Handbook on Combating Gender Stereotypes to help judges and the legal community recognise, analyse, and battle gender prejudices about women. The handbook lists stereotyped terms and phrases about women that are often used in judgments. It holds such terms as incorrect and suggests alternatives. It cites various cases where judges have coincidentally stereotyped women.
And so, when the Calcutta High Court observed that teenagers, especially girls, must “control their sexual urges”, and differentiated libido and sexual drives as natural and triggered by individual behaviour respectively, the Supreme Court was appalled. It called the remarks “objectionable” and violating adolescents’ rights under Article 21 of the Constitution, while warning judges against preaching.
Coming after the release of the handbook, this development is significant. The handbook notes that stereotypes can propagate anti-constitutional ethos even when they do not affect a case. The language used by judges reflects their legal interpretation as well as their perception about society. The Constitution attempts to provide equal rights to all, but judicial rhetoric that perpetuates outdated or inaccurate views about women hinders this process.
But the Calcutta High Court incident is not an aberration. Judges seem to be unwilling to change and patriarchal ideas remain in power.
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Gender-insensitive judgments
In Dwaipayan Das vs State of West Bengal (2023), the Calcutta High Court made a damaging comment about Section 498A of the IPC or Clause 84 of the BNS (husband or his relative subjecting a woman to cruelty) while quashing a wife’s criminal complaint against her husband and in-laws. The provision was meant to eliminate the dowry scourge, but the judge, Justice Subhendu Samanta, said its misuse had unleashed “new legal terrorism”. That’s quite a harsh expression. Justice Samanta made his assertion without any supporting evidence. Will the judiciary call a misuse of constitutional provisions an act of ‘constitutional terrorism’? There is rarely a law that cannot be misused, but the legislation protecting women and Scheduled Castes/Tribes is often smeared.
Interestingly, in Prathvi Raj Chauhan vs Union of India (2020), the Supreme Court examined the validity of certain provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, and ruled that there may be certain false cases but “the law cannot be changed due to such misuse”. Additionally, a person misusing provisions “cannot be a ground to treat class with doubt”. The top court blamed “human failings” and not “the caste factor”. Unfortunately, especially in women-related cases, such sensitivity is lacking.
While deciding whether watching pornography in private is an offence, the Kerala High Court lectured on proper parenting, notably reminding parents of their obligation toward their children in Aneesh vs State of Kerala (2023). The court lamented that parents allow children free use of mobile phones. Children should be gifted “delicious food made by the mother” on birthdays instead of mobile phones, or given “delicious food made by the mother” instead of food from restaurants ordered through ‘Swiggy’ and ‘Zomato’. The judiciary’s concern for children is appreciable, yet, like the mothers, it didn’t outline any specific task for the fathers in bringing up those children. The court quite seemingly toed with our patriarchal norms where fathers’ role in parenting has largely remained as sperm-donors.
In a bizarre case, the Supreme Court was forced to take suo moto cognisance of and stayed an order passed by the Allahabad High Court. In Gobind Rai vs State of UP (2023), the accused allegedly made sexual relations with the complainant on the false promise of marriage. But the accused submitted before the court that he could not marry since the woman was a manglik, which she refuted. The court directed the head of astrology department, Lucknow University, to determine if the girl was indeed a manglik. The court further ordered the parties to submit within 10 days their kundali to the HoD, who was then directed to submit a sealed report.
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Handbook alone won’t do the job
Women have encountered many prejudices and stereotypes that have prevented them from receiving equitable treatment in society and the judicial system. Despite the Supreme Court’s handbook, judicial aberrations among the high court judges appear to be repetitive. They refuse to learn and continue to pronounce extremely gender-insensitive judgments. Such insensitivity percolates down to the lower judiciary with more deleterious impact. The Supreme Court’s duty hasn’t ended with the publication of the handbook; it must continue to monitor the judges’ unsavoury behaviour. Such behaviour must be mentioned in judgments and reviewed adversely in promotions/elevations. Not to forget, Justice Pushpa Ganediwala of the Bombay High Court was criticised for her controversial “skin-to-skin contact” judgment while interpreting “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012. She was given neither extension nor elevation by the Supreme Court Collegium. She had to resign and is still fighting for pensionary benefits.
Judges’ words shape narratives and social attitudes. The handbook is crucial in promoting gender sensitivity. However, judicial training institutes and other legal awareness initiatives need more earnest and continuous efforts. Law teachers should also own up the responsibility to make the future members of the bar and bench more gender sensitive, so that we can avoid such judicial embarrassments.
The author is an Associate Professor at Faculty of Law, Jamia Millia Islamia, New Delhi. He tweets @LegallySarkar. Views are personal.
(Edited by Prashant)