Finally, one of the most blatant practices of gender discrimination through the use of archaic, derogatory, and patriarchal words and language has been taken into cognizance, and remedial measures initiated to mitigate any future damage. It is definitely a cause for cheer when the Supreme Court acknowledges the discriminatory language being used in the courts of law in India that promoted gender stereotypes and offers in its place alternative gender-just words and phrases to be used in proceedings and judgments hereafter.
Most importantly, the “Handbook on Combating Gender Stereotypes” contains a glossary of gender unjust terms which are usually used in the courts and a list of common assumptions along with suggestions for alternative words or phrases and explanations for judges and lawyers to be henceforth considered in pleadings, orders, and judgments.
So, going ahead, one can now expect not to come across stereotypical and patriarchal words such as – adulteress, bastard, concubine/keep, faggot, harlot, fallen woman, hooker, seductress, spinster, slut – or phrases describing characters like – chaste woman, dutiful wife, women of easy virtue, hormonal, ladylike etc.
This step by the Supreme Court will not just influence how women and other genders are now addressed and judged but will also hopefully help in shaping fair and unbiased judgements for women and other genders involved in legal battles and to ensure that courts deliver equal and impartial justice to individuals of all genders. While many non-government organisations and institutions over the years have been actively promoting the use of gender-sensitive, gender-just and gender-neutral language through similar guidelines, handbooks, and training sessions, it is perhaps for the first time that an apex government institution in India has come out with such a manual.
Chief Justice of India (CJI) D. Y. Chandrachud says in his foreword in the document: “Relying on predetermined stereotypes in judicial decision-making contravenes the duty of judges to decide each case on its merits, independently and impartially. Reliance on stereotypes about women is liable to distort the law’s application to women in harmful ways.” He adds that “Where the language of judicial discourse reflects antiquated or incorrect ideas about women, it inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender.”
So the Handbook rectifies the use of words like “forcible rape” as simply “rape,” a “career woman” as only a “woman,” “eve-teasing” as “street sexual harassment,” and “ravished” as “sexually harassed, assaulted or rape.” Also, a “woman of loose morals/easy virtue/promiscuous woman/wanton woman” is simply “woman.” The Handbook explains many such stereotypes.
The SC handbook states that: Where the language of judicial discourse reflects antiquated or incorrect ideas about women, it inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender. The CJI reportedly said that many of these stereotypes have been utilised by courts in the past and how they have been inaccurate and distorted the application of the law.
The Handbook hopefully will now help judges and lawyers in identifying, understanding and combating gender stereotypes about women in legal proceedings. Explaining gender stereotypes it says that “For instance, some people believe that women lie about men having sexually assaulted or raped them. If a judge were to utilise such a stereotype when deciding a case, it may cause them to unfairly discard or discount the testimony of a survivor or victim of sexual assault, leading to grave injustice. This is why it is vital that judges impartially decide each case on its individual merits rather than relying on pre-conceived notions about men or women.”
Patriarchal, disparaging, and archaic terms and descriptions that vilify women and perpetuate gender stereotypes can still be commonly seen and heard in Indian courts. The document lists such common yet critical assumptions about the traits of women based on their “inherent characteristics,” their “gender roles” and “concerning sex and sexual violence” and explains why such notions are incorrect and harmful.
Among such assumptions named are – Women are overly emotional, illogical, and cannot take decisions; Unmarried women (or young women) are incapable of taking important decisions about their life; All women want to have children; Women who work outside of the home do not care about their children; Wives should take care of their husband’s parents; 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 who are sexually assaulted or raped by men cry incessantly and are depressed or suicidal. If a woman’s behaviour does not conform to this mould, she is lying about having been rape; “Good” women prefer death rather than being raped by a man etc.
Importantly, it cites examples of how such assumptions influence court proceedings and judgments. “It may be remembered that motherhood is the precious possession of a woman and if per chance she is made to sacrifice motherhood which is yet to enter upon, it is no less than suicidal death for a young woman,” says a writ petition. And another appeal states “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.”
Gender-just language manifests gender justice where people of all genders are considered as persons of equal value, dignity, integrity and respect. The language judges use reflect not only their interpretation of the law, but also their attitude towards people and perception and interpretation of the society as well.
It is commendable that the highest court has called out this linguistic sexism and has come forward to reform the language to ensure that legal writing, reasoning and judgement are free from harmful notions about women and other genders. Rejecting several such stereotypes discussed in the Handbook, it states in conclusion that these precedents are binding on all courts within the territory of India by virtue of Article 141 of the Constitution of India and also reproduces a key progressive precedent for ease of reference.
Although it remains to be seen how the guidelines help in raising awareness on the need to avoid stereotypes against women in all facets of judges’ decision making and writing, it is a welcome step indeed and should extend beyond our courts.
