Rise Up | Loopholes in the Law: Where Gender Bias Comes Full Circle
The Rise Up series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work.
Decades of a robust judiciary with a healthy appreciation for the written word have led Indian judgments to be famously verbose. But often, what can be infinitely more ominous than the rambling rhetoric in judgments, is the way in which gaps in legislation are filled through flourishes in judgements. This is not an essential condition of all legal writing, but merely an observation offered: very often, judgments which might seemingly be in favour of gender equality, are startlingly not and arrive at discomfitingly misogynistic and/or patriarchal conclusions.
This article provides an aerial view of sorts in reviewing gender bias reasoning in Indian judgments. We seek to show how lacking judgments are when thought of from a gender equitable perspective. In this article, problematic outcomes of judgments are grouped into three categories:
- those where gender is ignored or erased from the narrative effectively making it harder for those who are marginalized due to their gender to exercise their rights;
- those where women are actively disadvantaged; and
- those where, even though judgements are seemingly positive towards gender equality, that is not really the case on deeper reflection.
This is by no means an exhaustive classification, but merely an observatory in nature.
The average woman in India lives her life on a backfoot: add to that the complexities of caste, class and religion and there exist several Venn diagrams to indicate how low a rung they are on a socio-political scale. Several Indian judgments propel women further into obscurity due to verdicts which simply do not include women in the narrative.
In Raj Bala v. State of Haryana, when the Supreme Court upheld the Haryana Panchayati Raj (Amendment) Act, 2015, which introduced further five disqualifications into panchayat elections, they significantly distanced women of the local electorate from contesting, as women of the region often do not have the necessary educational credentials, homes with functional toilets, or arrear-free financial situations that are now prerequisites to exercising their constitutional right to vote. The reasoning of the Court presents an intersection of gender and class that disadvantages women: it is only education which gives a human being the power to discriminate between right and wrong, good and bad. The verdict of the Court is precariously mounted on the premise that without education (notwithstanding that this is education the State is duty-bound to impart and encourage) women are entirely ineffectual as political candidates. The extension of this argument could well be that an uneducated woman is incapable of accessing her constitutional right to contest in local elections.
However, reinforcing pre-existing structural inequity is not new. Women have long been ignored in matters of property and inheritance. In Narasimha Murthy v. Susheela Bai the Supreme Court decision that partition of property was to be restricted even if there was a single male heir was inimical to the rights of daughters in the dwelling house. Hindu women have been traditionally disadvantaged from inheriting property, following the adoption of Mitakshara law which does not recognise women’s entitlement to family property. The restriction, as stated in the judgment, has been imposed to prevent the fragmentation of the dwelling house at the instance of female heirs, from the age-old attitude that a daughter is to be wed in another home and into another family; she is not entitled to the property of her birth home.
There is no dearth of judgments where the interest of women has been directly disadvantaged.
In Tukaram v. State of Maharashtra, when a minor tribal girl was raped in the custody of police at a police station, the accused was acquitted on the feeble ground that rape had not been proved and that a tribal girl habituated to sexual intercourse would have surrendered her body to the accused anyway. Despite the fact that there was no direct evidence of any consent by the girl to the sexual act performed, the Court toyed with the idea of passive submission as consent. There are also references in the judgment to what a stereotypical victim of rape must look and behave like: against such pretext, the girl’s failure to resist the force with which she was taken or to confide in her companions and her final act of ‘allowing him to have his way with her to the extent of satisfying his lust in full’ are instances of the troublesome reasoning that dictated the court’s verdict when they held that the sexual intercourse in question was not proven to amount to rape.
The idea of consent is in fact seen as a grey area which is more often than not, used to the detriment of women. Repeated furor to recognise nothing less than an enthusiastic yes as the lower limit of consent have fallen on deaf ears. Indeed, in this context, the Supreme Court upheld a troubling analysis of consent in Mahamood Farooqui v. State. In shying away from applying the unequivocal voluntary agreement standard of consent to sexual intercourse, the court has reinforced the idea that victims of rape must look and behave a certain way, and that these are a pre-qualifier for justice. The Court dangerously clarified that ‘when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant’. By reiterating the idea that ‘feeble hesitation can never be understood as a positive negation of any advances by the other partner’, the Court has made it infinitely harder to go down the enthusiastic yes approach.
The Seemingly Positive
Another metric of categorising judgments in this category has not only been the contents of such judgments in and of themselves, but also their applicability against conflicting decisions. Consider for instance the Supreme Court decision that a false promise to marry for sexual intercourse amounts to rape. A year earlier, the same court delivered a starkly polar decision in Uday v. State of Karnataka observing that consensual sex cannot be construed as rape despite false promises of marriage made to induce sexual intercourse in the first place. Presumably the latter judgement stands but the sheer number of conflicting judgements that exist when it comes to gender rights cases in India is in itself not helpful in clearing a path towards gender justice.
The Supreme Court expressly ruled in Independent Thought v. Union of India that sexual intercourse (even if consensual) between a man and his minor wife (below the age of 18) is rape. Yet this skirts around issue of a marital rape exception that continues to exist in our criminal laws, despite calls for its criminalization. The classification of women based on their marital status acting as a prerequisite to qualify for rape is an unreasonable standard to hold. Rape does not depend on a woman’s marital status. Consider the stringent standards to which domestic violence is held in The Protection of Women from Domestic Violence Act, 2005, where there exist significantly deep provisions which offer protection to victims of violence within the family. Consent plays no role in domestic abuse; and rightly so, for it is irrational to believe that any woman would willingly concede to abuse and violence. In the same vein, it is irrational to conclude that a married woman would willingly consent to forced sexual intercourse. Even while this judgment identifies sexual intercourse with a minor wife as rape, it does so at the cost of hundred of adult married women who have no recourse from regualr marital rape. The qualifier is marriage not consent, which is what it should be.
Of course, the line is not always as clear. Judgments which often have seemingly progressive stances still suffer from conventionally patriarchal flaws. Even though the Supreme Court laid down the first guidelines of what a law against sexual harassment at the workplace might look like in Vishakha v. State of Rajasthan (a full sixteen years before legislation was actually put in place), the plaintiff in that very case, a Dalit social worker who was gangraped by upper caste men for attempting to stop a child marriage, was unable to have her attackers apprehended. This in fact highlighted how sexual harassment is not only a gender issue, but also an issue of class and equality. In the absence of sexual harassment law, cases like Vishakha had to be heard under those sections of the Indian Penal Code which dealt with outraging the modesty of a woman and with eve teasing. These provisions are archaic and victorian, implying that a woman is to be protected because it is her modesty which is sacrosanct and not her personhood.
The call for gender rights is not about reaching a particular standard or optimal goal of gender equality. In the same way, feminist justice is not a goal, but a process to be adopted and incorporated into our systems and tarditions. It isn’t enough to have legislations and judgments which don’t disadvantage or ignore women; it’s also crucial that these mechanisms arrive at gender-equal solutions with reasoning which is in line with feminist justice.
Priyanshi Vakharia is a Blogger at One Future Collective.
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