Supreme Court Handbook on Gender Stereotypes and Why It Matters; What Alternatives It Suggests; CJI Chandrachud Says Reliance on Stereotypes Is Often Unconscious and Can Prevent Us from Understanding Reality
By
Apurva Vishwanath
New Delhi:
August 17, 2023
A “career
woman” is only a “woman”; “eve teasing” is “street sexual harassment” and
“forcible rape” is simply “rape.” These corrections in sexual stereotypes are
part of a handbook for judges and other legal practitioners released Wednesday
by Chief Justice of India DY Chandrachud.
“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 handbook states.
CJI
Dhananjaya Y Chandrachud. (PTI) (HT_PRINT)
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What Is the
Handbook?
The SC
handbook is a 30-page booklet that aims to assist judges and the legal
community in identifying, understanding and combating stereotypes about women.
The handbook identifies common stereotypical words and phrases used about
women, many of them routinely found in judgements.
For
example, in the 2017 Supreme Court ruling awarding the death penalty for the
convicts in the Delhi gang-rape case, the verdict repeatedly uses the word
“ravished” to say raped.
“It is
absolutely obvious that the accused persons had found an object for enjoyment
in her and, as is evident, they were obsessed with the singular purpose sans
any feeling to ravish her as they liked, treat her as they felt and, if we
allow ourselves to say, the gross sadistic and beastly instinctual pleasures
came to the forefront when they, after ravishing her, thought it to be just a
matter of routine to throw her along with her friend out of the bus and crush
them,” the Court said.
The
handbook quotes other judgements where judges unwittingly use stereotypical
characterisations of women.
“A girl
aged 24 years is weak and vulnerable, capable of being exploited in many ways,”
a 2017 judgement of the Kerala High Court said.
Why is it
important for judges to use the right words?
The
handbook argues that the language a judge uses reflects not only their
interpretation of the law, but their perception of society as well.
“Even when
the use of stereotypes does not alter the outcome of a case, stereotypical
language may reinforce ideas contrary to our constitutional ethos. Language is
critical to the life of the law. Words are the vehicle through which the values
of the law are communicated. Words transmit the ultimate intention of the
lawmaker or the judge to the nation,” it states.
Have there
been similar efforts in other countries?
There have
been projects in other countries, pushed by both academia and practitioners,
which hold up a mirror for the court’s practices.
For
example, the Women’s Court of Canada, a collective of female lawyers, academics
and activists write “shadow judgements” on equality law.
In India,
the Indian Feminist Judgement Project also ‘rewrites’ judgements with a
feminist critique. It is led by advocate Jhuma Sen, Dr Aparna Chandra at the
National Law School of India University, Bangalore, and Dr Rachna Chaudhary at
the Ambedkar University, Delhi.
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Eve-Teasing
To Keep, Adulteress To Bastard: SC Suggests Rewrite To Fight Stereotypes
By
Ananthakrishnan G
New Delhi:
August 17, 2023
“Eve
teasing” is the incorrect way of saying “street sexual harassment” which should
be the “alternative language… preferred” in courts, and it is a “stereotype”
that “women who consume alcohol or smoke cigarettes want to engage in sexual
relations with men”.
These are
among the dozens of “stereotypes” and “incorrect… stereotype promoting
language” flagged by the Supreme Court in its ‘Handbook on Combating Gender
Stereotypes’ launched Wednesday.
The
handbook, according to the top court, “aims to assist judges and the legal
community in identifying, understanding and combating stereotypes about women”.
It contains
a “glossary of gender-unjust terms and suggests alternative words or phrases
which may be used while drafting pleadings as well as orders and judgments”.
Some of the
other terms that it wants courts to avoid using are adulteress, bastard, career
woman, carnal intercourse, concubine/keep, housewife, mistress, prostitute,
transsexual and unwed mother.
On whether
to use survivor or victim for someone who has been raped, it says “an
individual who has been affected by sexual violence may identify themselves as
either a “survivor” or “victim”. Both terms are applicable unless the
individual has expressed a preference, in which case “the individual’s
preference should be respected”.
The
handbook calls upon the “Indian judiciary” to “recognise the deep-rooted impact
of gender stereotypes and actively work to dismantle them from its thinking,
decision-making, and writing”.
In his
foreword to the book, Chief Justice of India D Y Chandrachud writes that
“relying on predetermined stereotypes in judicial decision-making contravenes
the duty of judges to decide each case on its merits, independently and
impartially” and that “in particular, reliance on stereotypes about women is
liable to distort the law’s application
to women in harmful ways”.
SC handbook
gender Some of the terms the SC handbook flags, and the alternatives it
suggests. (Screenshot)
The CJI
points out that “even when the use of stereotypes does not alter the outcome of
a case, stereotypical language may reinforce ideas contrary to our
constitutional ethos”.
Stating
that “challenging and overcoming stereotypes is essential to ensuring an equal,
inclusive, and compassionate society”, the CJI underlines it is “vital that
judges not only avoid relying on stereotypes in their decision-making and
writing, but also actively challenge and dispel harmful stereotypes”.
He says “if
harmful stereotypes are relied on by judges, it can lead to a distortion of the
objective and impartial application of the law” and “perpetuate discrimination
and exclusion”.
The
handbook points out that “reliance on stereotypes is often subconscious” and
“can prevent us from understanding the reality of a situation and can cloud our
judgment”.
It says
that “on a micro-level, stereotypes lead to exclusion and discrimination in
workplaces, educational institutions, and public places” and “may also have an
adverse impact on the mental health or professional performance of the members
of the stereotyped group because they are aware that they are being viewed in a
particular manner”.
Stating
that “the harm caused can be enormous” if a judge “relies on preconceived
assumptions about people or groups when deciding cases or writing judgements”,
it says this can lead the “judges to ignore or bypass the requirements of law
or distort the application of the law vis-à-vis specific persons or groups”.
“Using
stereotypes, instead of objectively evaluating the situation, goes against the
constitutional principle of ‘equal protection of laws’, which posits that the
law should apply uniformly and impartially to every individual, irrespective of
their membership to a group or category. The use of stereotypes by judges also
has the effect of entrenching and perpetuating stereotypes, creating a vicious
cycle of injustice.”
The
handbook lists the most common kinds of gender stereotypes that concern women
as stereotypes “based on the so-called ‘inherent characteristics’ of women…
based on the gender roles of women; and… related to sex, sexuality, and sexual
violence”.
While it’s
a stereotype based on the so-called “inherent characteristics” that “all women
want to have children”, the “reality” is “all women do not want to have
children” and “deciding to become a parent is an individual choice that every
person takes based on a variety of circumstances”, the handbook points out.
That “wives
should take care of their husband’s parents” is a stereotype based on gender
roles, it says, adding that “the responsibility of taking care of elderly
individuals in the family falls equally on individuals of all genders” and “not
the sole remit of women”.
Illustrating
stereotypes concerning sex and sexual violence, the handbook says the belief is
“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 raped”.
The “reality is different people react differently to traumatic
events…There is no ‘correct’ or ‘appropriate’ way in which a survivor or victim
behaves”.
Source: https://indianexpress.com/article/india/eve-teasing-to-keep-adulteress-to-bastard-sc-suggests-rewrite-to-fight-stereotypes-8895901/
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Supreme
Court Launches Handbook to Avoid Gender-Based Stereotypes During Judicial
Proceedings
Released on
Wednesday, the handbook is called Combating Gender Stereotypes
R. Balaji
New Delhi 17.08.23
A glossary
of alternative words and phrases has been released by Chief Justice of India
D.Y. Chandrachud for preferred use by judges and lawyers to avoid gender
stereotypes during judicial proceedings.
Released on
Wednesday, the handbook is called Combating Gender Stereotypes. The following
words or phrases in bold are sought to be replaced by the alternatives listed
after the colon.
Adulteress: Woman who has engaged in sexual
relations outside of marriage
Affair: Relationship outside of marriage
Bastard: Non-marital child or, a child whose
parents were not married
Biological sex/biological male/ biological
female: Sex assigned at birth
Born a girl/boy: Assigned female/ male at birth
Career woman: Woman
Carnal intercourse: Sexual intercourse
Chaste woman: Woman
Child prostitute: Child who has been trafficked
Concubine/keep: Woman with whom a man has had
romantic or sexual relations outside of marriage
Dutiful wife / Faithful wife / Good wife /
Obedient wife: Wife
Woman of easy virtue: Woman
Effeminate (when used pejoratively): Accurately
describe the characteristic using a gender-neutral term (such as “confident” or
“responsible”)
Eve teasing: Street sexual harassment
Faggot: Accurately describe the individual’s
sexual orientation (such as “homosexual” or “bisexual”)
Fallen woman: Woman
Feminine hygiene products: Menstrual products
Forcible rape: Rape
Harlot: Woman
Hermaphrodite: Intersex
Hooker: Sex worker
Hormonal (to describe a woman’s emotional
state): Use a gender-neutral term to describe the emotion (such as
“compassionate” or “enthusiastic”)
Housewife: Homemaker
Indian woman/western woman: Woman
Ladylike: Use a gender-neutral description of
behaviour or characteristics (such as “amusing” or “assertive”)
Layabout /Shirker: Unemployed
Marriageable age: A woman who has attained the
legal age required to marry
Mistress: Woman with whom a man has had
romantic or sexual relations outside of marriage
Prostitute: Sex worker
Provider/ Breadwinner: Employed or earning
Provocative clothing/ dress: Clothing/ dress
Ravished (such as “she was ‘ravished’ by him”):
Sexually harassed/ assaulted or raped.
Seductress: Woman
Sex change: Sex reassignment or gender
transition
Slut: Woman
Spinster: Unmarried woman
Survivor or Victim: An individual who has been
affected by sexual violence may identify themselves as either a “survivor” or
“victim”. Both terms are applicable unless the individual has expressed a
preference, in which case the individual’s preference should be respected.
Transsexual: Transgender
Transvestite: Cross-dresser
Whore: Woman
Woman of loose morals/ easy virtue/ promiscuous
woman: Woman.
In his
foreword to the handbook, CJI Chandrachud said that reliance on stereotypes about
women was liable to distort the law’s application to women in harmful ways.
The CJI
thanked the social justice sub-committee of the e-committee (Justice Moushumi
Bhattacharya of Calcutta High Court, Justice Prathiba Singh of Delhi High Court
and Professor Jhuma Sen, in particular) for their initial draft.
Source: https://www.telegraphindia.com/india/supreme-court-launches-handbook-to-avoid-gender-based-stereotypes-during-judicial-proceedings/cid/1959434
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