Posted by Gaurika Taneja
Judiciary reflects the morals and the principles of the society it serves. Judicial decisions and the execution of justice impacts the everyday life of citizens and creates a foundation for the society to function. However, in a nation where gender-based discrimination is embedded in all institutions, it is no surprise that even the judiciary and Indian courtrooms are no exception. The recent remarks by Justice Krishna S Dixit while granting anticipatory bail to a rape accused that it was unbecoming of an Indian woman to sleep after being raped, is just another instance of how the Indian courtrooms too, fail to be just to the feminist movement.
A 2018 survey by Thomson Reuters Foundation found India to be the world’s most dangerous country for women due to the high risk of sexual violence. Despite such high crime rates against women, around 99 percent of the sexual assaults go unreported due to the societal stigma faced by the victim, the tedious paperwork process and the legal proceedings. Nevertheless, the 1 percent of the reported cases too at times indicate towards institutional failure wherein the victim and their traumatic experience is trivialised by the verdicts given by the courts.
On June 22, as the Karnataka high court gave anticipatory bail to a rape accused, the 42-year-old judge expressed his reservations regarding the genuineness of the complaint. The court found it difficult to believe the rape survivor’s statements against the accused, given the circumstances where she failed to appear like a ‘victim.’ Justice Krishna S Dixit noted that it was “unbecoming of an Indian woman” to sleep after she is ravished, “that is not the way our women react”, he added. “unbecoming of an Indian woman to sleep after she is ravished, that is not the way our women react.” Though now, these derogatory remarks about the survivor have now been expunged from the order, the misogynist mindset behind the judgment, a reflection of the state of Indian courtrooms, did not go amiss.
We live in a society where women are expected to behave in a certain manner, there are unstated or stated rules for women to follow in order to be seen, heard and respected. Such kind of societal rules are imposed upon women since childhood, a primary example can be of parents moral policing their girl children by restricting their choice of clothes in front of male relatives. Nevertheless, women at every stage of their life are expected to abide certain norms and if they fail to do so, the society sees it upon itself to remind the woman about her gender. In courtrooms across the world, sexual assault survivors often face trials that aim towards making women feel responsible for the crimes committed against them. Women in sexual harassment cases are expected to behave like the ‘victim,’ an idea often propagated by the Indian movies and media. A survivor is viewed as ‘ideal’ if she goes out at night or drinks – so that it becomes easier to impose the victim-blaming narrative employed by the society in general, and as we see in this case, the courtrooms too.
In 2017, a two-judge bench of Punjab and Haryana high court allowed bail to three men who were convicted of the blackmail and gang-rape of a fellow student in a highly regressive order that labelled the victim as “promiscuous”.
There have been instances of how the courtrooms, even after acknowledging the crime of the accused, would award punishment that is often trivial and insensitive to the sexual assault survivors. In November 2019, a 15-year-old minor was molested by three men in Bihar. The court directed the accused to apologise to the minor for 15 consecutive days. Additionally, the court also stated that the accused shall do community service for eight days in the minor’s school and in another school for seven days. In 2015 the Madras high court granted bail to the convicted rapist of a 15-year-old girl and referring the matter to a ‘mediation centre’. The aim of this mediation was to arrange for the marriage of the rapist with the victim. The judgment was flawed morally and socially, such judgments inside courtrooms give the perpetrator power and an easy escape to the convicted criminal.
We believe that education will solve most of the problems and courtrooms are seen as an ultimatum with the idea of justice being served. However, these insensitive judgments show us another story. The problem begins with gender discrimination in the judiciary itself where there is a lack of women representation. A 2019 report from the law ministry’s justice department recorded the number of women judges sitting across the country’s 24 high courts, excluding Telangana’s, as mere 73 (or 10.8 per cent) out of the total of 670 judges.
Women lawyers complain of facing discrimination and sexism within the Indian courtrooms, often being subjected to unrequited scrutiny by their male seniors or counterparts. When the courtrooms themselves undermine the education and experience of women in the field, how can one expect gender bias-free judgments against sexual abuse victims?
The problem does not just lie with a lack of diversity in courtrooms but also within the lack of awareness inside the system. To tackle this issue, we need to raise our collective voice against instances of sexism, create awareness and sensitise others. Judgments using sexist, classist and casteist languages should be reflected upon and radically criticised. Law educational institutions should admit more female students and it should be imperative that knowledge dissemination in law schools take place from a feminist perspective. Sexual assault survivors face continual discrimination at the hand of the judiciary and the executive systems right from filing a case against the perpetrators to facing the jury’s sexist remarks, apathy and even victim-blaming remarks. The solution, therefore, begins with public discourse and dialogues with those who uphold the accountability of these public institutions.
Gaurika is a student of Multimedia and Mass Communication at the University of Delhi. She is a chatterbox who can go on non-stop about gender, art, literature, politics, TV shows and books. On weekends, you will find her scribbling poetry and sipping coffee at the local café. She aspires to be a journalist, and hopes to make a positive difference, someday. She can be found on Instagram and LinkedIn.
Featured Image Source: The Swaddle