In a significant verdict, the Supreme Court on Thursday set aside a Madhya Pradesh High Court order from last year that directed a man accused of sexual assault to get a “rakhi” tied by the complainant as a bail condition.

While doing so, the court made some scathing observations about the “paternalistic and misogynistic attitudes” that are entrenched in India’s judiciary, The Hindu reported. The court observed that even after 70 years as a Republic, India continues to be an “exclusively masculine” society, where laws are framed by men, and the judicial system “judges feminine conduct from a masculine point of view”.

In such an environment, the challenges Indian women face are formidable, the court said, according to the Hindustan Times.

“They include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male-centric,” it observed. “Women are discriminated against and subordinated not only on the basis of sex, but on other grounds too, such as caste, class, ability, sexual orientation, tradition and other realities.”

It added that gender violence was most often unseen and shrouded in a culture of silence. This silence, the court said, needs to be broken.

The Supreme Court then spoke at length about the role that judges can play in ridding the justice system of harmful stereotypes against women, according to Bar and Bench.

Here are the key excerpts

  • “A woman cannot be herself in the society of the present day,” the bench of Justices AM Khanwilkar and S Ravindra Bhat remarked in its 24-page verdict. The Supreme Court said the law does not “countenance a scenario where a victim can potentially be traumatised many times over and be led to accept or condone a serious offence”. 
  • This, the court said, was a direct consequence of the prevalent stereotypes, which are deployed in ways that are supportive of a patriarchal order. 
  • The court gave several examples of such stereotypical expressions like “women are physically weak and need protection”; “men are the head of the household”; “motherhood is the duty and role of every woman”; “being alone at night or wearing certain clothes make women responsible for being attacked”; “women are emotional and often overreact or dramatize events”; and that “lack of evidence of physical harm in a sexual offence case leads to an inference of consent by the woman”. 
  • Justice Bhat noted how the stereotype of “the ideal sexual assault victim” disqualifies several accounts of lived experiences of sexual assault. “Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc,” he observed.
  • The judgement also touched upon how “outlaw behaviours” such as stalking, eve-teasing, shades of verbal and physical assault, and harassment are typically characterised as “minor offences” and even romanticised. These crimes, the court held, are indulgently viewed through prisms like “boys will be boys”. 
  • The Supreme Court held that judges should avoid under all circumstances from using reasoning or language “which diminishes a sexual offence and tends to trivialise the survivor”. 
  • “Even a solitary instance of such order or utterance in court reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence [of any kind from the most aggravated to the so-called minor offences],” Justice Bhat observed.
  • The court said that 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. “Stereotyping might compromise the impartiality of a judge’s decision and affect his or her views about witness credibility or the culpability of the accused person,” the Supreme Court cautioned.
  • Bail conditions and orders, the court said, should avoid reflecting stereotypical or patriarchal notions about women and “their place in society”.
  • “In other words, discussion about the dress, behaviour, or past ‘conduct’ or ‘morals’ of the prosecutrix [complainant], should not enter the verdict granting bail,” the court observed.