The controversial observations made by the Calcutta High Court which advised young girls to “control sexual urge” have been described as “objectionable and unwarranted” by the Supreme Court which has asked judges to refrain from expressing “personal views or preach”
By Dr Swati Jindal Garg
The Chief Justice of India in his foreword to the Handbook on Combating Gender Stereotypes has said: “Our oath as judges mandates that we ‘perform the duties of our office without fear or favour, affection or ill-will.’ The oath demands that we discharge our functions with impartiality and objectivity, applying the law to every case before us. A judge’s oath demands rejecting improper attempts to influence their decision-making. The oath also requires a judge to put aside any preconceived notions about the parties before the court. Relying on predetermined stereotypes in judicial decision-making contravenes the duty of judges to decide each case on its merits, independently and impartially. In particular, reliance on stereotypes about women is liable to distort the law’s application to women in harmful ways.”
The recent statements made by a two-judge bench of the Calcutta High Court, however, have been diametrically opposite to this adage. The misogynistic observations of the bench have forced the apex court to take up the matter suo motu, making its intent clear to the other judges. The controversial advice to young girls to “control sexual urge” have been described as “objectionable and unwarranted” and the apex court has also asked judges to refrain from expressing “personal views or preach.”
The matter was taken up by a bench of Justices Abhay S Oka and Pankaj Mithal who said: “The remarks violated the rights of adolescents under Article 21 of the Constitution. Prima facie, we are of the view that the judges are not expected to express personal views or preach.” The bench issued a notice to the West Bengal government and other parties in the case while asking Senior Advocate Madhavi Divan to assist the Court. In fact, the order also discloses that the proceedings were initiated at the behest of Chief Justice of India DY Chandrachud, who has always been a forerunner in matters pertaining to gender parity and female emancipation.
The furore was created due to a division bench of the High Court, which, while announcing an order in a POCSO Act case, observed that it is normal for adolescents to seek the company of the opposite sex, but it isn’t “normal for them to engage in sex devoid of any commitment and dedication”. Reportedly, the bench had also said that “every female adolescent should control sexual urges as in the eyes of society she will be a loser when she gives in to enjoy sexual pleasure of hardly two minutes”.
The bench further said that “the girls should protect their dignity and self-worth”, and observed: “Sex in adolescents is normal, but sexual urge or arousal of such urge is dependent on some action by the individual, maybe a man or woman. Therefore, a sexual urge is not at all normal and normative. If we stop some action(s), arousal of sexual urge, as advocated in our discussion supra, ceases to be normal.”
Going a step further, the bench made certain observations for male adolescents by advising them that they should “respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity and privacy, and right to autonomy of her body”. All these observations were made while hearing a teenager’s request against conviction in a rape case.
The High Court suggested certain duties for the adolescents. For the female adolescents, the Court said that it is their duty to:
- Control sexual urges as in the eyes of society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes.
- Protect her dignity and her right to integrity of the body.
- Protect her self-worth.
- Thrive for her overall development and self-transcending gender barriers.
- Protect the right to autonomy of her body and privacy.
For the male adolescent, the High Court was of the opinion that it is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity and privacy, and right to autonomy of her body. The High Court also expressed concerns about the Protection of Children from Sexual Offences Act (POCSO Act) that treats even consensual acts among adolescents as sexual abuse and even called for the decriminalisation of consensual sexual acts involving adolescents above 16 years.
The Supreme Court asserted that in the context of hearing an appeal against a conviction, the High Court was supposed to play the limited role of assessing the appeal’s merits and not express personal opinions or deliver moralistic sermons. The apex court reiterated that the observations passed by the High Court were inappropriate.
The controversial judgment passed by the High Court was delivered by Justices Chitta Ranjan Dash and Partha Sarathi Sen wherein young girls and boys were advised to control their sexual urges and a young man who had been convicted of raping a minor with whom he had a “romantic affair” was acquitted. The young man had received a 20-year prison sentence for engaging in a sexual relationship with his under-age romantic partner.
This is not the first time that the apex court has rapped the knuckles of the High Court. It had in the past decided not to appoint Justice Pushpa V Ganediwala, the woman ad hoc Bombay judge who had created a stir with her successive controversial judgments, including the infamous “skin-to-skin contact” verdict, as a permanent judge. Justice Ganediwala had stunned many with her January 19, 2020, judgment acquitting a 39-year-old man of Section 6 offence under POCSO Act on the ground that pressing the breasts of a minor girl without removing her top didn’t entail skin to-skin contact, hence it was not a POCSO Act offence.
As if this was not enough, nine days after the controversial judgment, Justice Ganediwala created another uproar by her January 20, 2020, judgment wherein she had gone on to acquit a 50-year-old man by ruling that holding the hand of a five-year-old child and unzipping his pants in front of her could not be categorised as a sexual offence under POCSO Act. Needless to say, both judgments were overturned by the apex court.
The chief justice of India has taken various landmark steps in order to ensure that the constitutional rights of a citizen are not infringed upon, especially during the judicial process. In pursuance of the same, a handbook was also released by the Supreme Court in order to raise awareness against the utilisation of harmful stereotypes, particularly those prejudicial to women and to explain what stereotypes are, and help judges identify and avoid such stereotypes. The Handbook had tried to do the same by:
(1) Identifying language that promotes gender stereotypes and offering alternative words and phrases.
(2) Identifying common reasoning patterns that are based on gender stereotypes (particularly about women) and discussing why they are incorrect; and
(3) Highlighting binding decisions of the Supreme Court of India that have rejected these stereotypes and can be utilised by judges to dispel gender stereotypes.
The handbook has also taken note of the fact that like any other common person, a judge may also unconsciously hold or rely on stereotypes, and if that happens, the harm caused can be enormous. There can be no doubt that stereotypes impact the impartiality and the intellectual rigour of judicial decisions where they cause judges to ignore or bypass the requirements of law or distort the application of the law vis-à-vis specific persons or groups and let their own personal views interfere with the process of justice. It needs to be kept in mind that even when judges reach legally correct outcomes, it is the reasoning behind the outcome that will matter and care must be taken that the use of reasoning or language that promotes gender stereotypes and undermines the unique characteristics, autonomy, and dignity of the individuals before the court is avoided at all costs. Using stereotypes, instead of objectively evaluating the situation, goes against the constitutional principle of “equal protection of laws”, and infringes the mandate as set out under Article 14 of the Constitution. It is a set rule 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 which must be avoided at all costs.
Even though steps are being taken by the Supreme Court in order to raise awareness on the need to avoid stereotypes against women in all facets of their decision-making and writing, it is incumbent that members of the judiciary avoid employing stereotypes and dispense justice impartially. For centuries, women have faced numerous beliefs and stereotypes that stand to their prejudice, impeding their access to fair and equal treatment within society and the justice system. The Indian judiciary must recognise the deep-rooted impact of gender stereotypes and actively work to dismantle them from its thinking, decision-making, and writing. By consciously avoiding the use of stereotypes in decision-making and stereotype promoting language, the judiciary can foster an environment where gender equality is upheld and respected. Words matter, as they shape narratives and influence societal attitudes. The use of more inclusive language can not only help break harmful patterns of thinking, but can also prove to be the change that is needed in the society.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi