Gender Violence: Analysis of Gender-Based Stereotyping in Indian Judiciary

Justice carries a fundamental tenet of democracy and acts as stimulus to recognizing other integral human rights, especially that of the right to equality. Presently, several impediments have skewed the justice system, such as the staggering costs for legal aid services, lack of counselling services, and asymmetric information of the provisions of law and order.  Other than the above mentioned, the treatment of justice also varies according to the sex of one person to another. Women who have experienced unlawful harassment are often met with the social stigmas associated with their honour and cultural bias related to their character. Therefore, this paper addresses the gender-based stereotyping present in judiciary practices in India and its consequent effects on the justice received by female victims. 

Violence directed to women has become a worrisome, recurrent social evil that is yet to be remedied.  Statistically speaking, according to the National Family Health Survey of the Union Health Ministry, released in 2017, one in three women have been subject to one of many forms of violence; however, only approximately 14% of the above statistic have sought legal assistance (Saaliq). Although several gender-sensitive laws have been brought to effect, such as the broadening of the definition associated with the Criminal Law Amendment Act 2013 and the Protection of Children from Sexual Offences Act, the effectiveness of the policies and steps of the legal proceedings are still in question because of all-pervading gender bias. 

Gender-based stereotyping affects the legal outcomes of the judiciary system adversely and must be eliminated in realizing impartiality in law and order.  Stereotyping can be perpetuated by one of two means- implementing gender-discriminatory codes of law or applying gender-stereotyping in the treatment of legal proceedings. The unconscious gender bias can compromise the outcome of litigation when the prejudiced notions of the individual’s sex outweigh the pertinent facts and figures of the enquiry (Jacobs).  In other words, this stereotyping can unknowingly affect their judgment of the victim and their testimony, the culpability of the accused, and the happening of the unlawful crime itself. Case in point, the gender stereotyping is present at various steps towards justice in India; such as filing a complaint, undergoing medical examination, and navigating through the court proceeding.

Starting with police investigation, the influence of gender bias begins in the workplace in itself. Recent statistics from the Status Policing in India 2019 show that the women are only 7.28% of the Indian Police Service, where 90% of the same are constables (Subramanian). In spite of the 33% reservation for women in the Indian Police Service, the lack of female police officers is found to one of many reasons for which assault victims are unwilling to report these incidents (Subramanian). Additionally, women, from socially ostracized or economically weak backgrounds, are often met for greater resistance to proceed with the police investigation and are forcefully made to reach a settlement. Moreover, a study conducted by the Centre for the Study of Developing Societies in 2019 has released a disappointing figure that 20% of police personnel consider gender-based violence accounts to be “false and motivated” (Human Rights Watch). For example, a 22-year old Barkha, resident of Uttar Pradesh, was sexually assaulted by three men, one of which belonged to a higher caste and was the face of the current ruling political party (Human Rights Watch). Although she had approached the judiciary, the First Information Report, FIR, wasn’t registered for eight months, and in the time being, she left the village due to repeated death threats. Therefore, the negligence of violence against women at the onset of legal action becomes a deterrent to gender-inclusive justice in the first place.

Gathering the necessitated forensic evidence through the medical examination is of utmost importance in strengthening the legal proceeding, however, the medical practices of today perpetuate the degrading objectification of women.  On paper, although respectable, non-invasive medical guidelines have been put into place by the Ministry of Health and Family Welfare in 2014, the victim’s interests aren’t fully protected (Human Rights Watch). For example, sexually active women in India are often met with reproach and embarrassment for embracing their sexuality. This unjustified bias directed at women has translated in their clinical vaginal examination through the unscientific two-finger test. As all health-related matters lies under the purview of the state governments, there is no obligation to follow the above said guidelines, including that of removing the two-finger test. Out of the nine states that claimed to adhere to the 2014 guidelines, such as Madhya Pradesh and Uttar Pradesh, all were found to be poorly performing by the Human Rights Watch in 2018 (Human Rights Watch).  For example, an 18-year old Palak, resident of Madhya Pradesh, was subject to victim blaming during the medical examination and the police personnel alluded that the sex was consensual due to lack of discolorations or scars on her body (Human Rights Watch).

Procedurally, the legal trial often echoes the detrimental female stereotype and is intimidating and overwhelming in its treatment of handling the assault victims. Derogatory language directed to women are used frequently in the court room, validated by a Supreme Court criminal advocate, Rebecca Mammen John, who reiterated that “shaming the victim is still very much prevalent in the courts” (Human Rights Watch). Although various measures have been instructed for the assistance of the victims, such as providing fast-track courts, teaching the victim of their rights and liberties, and providing a list available legal aid options, the effectiveness of the same haven’t been studied empirically. Also, with the support groups, there is inadequate support in handling, controlling, and proactively preventing violence against young girls and women across India. For example, although necessitated measures were prepared in the 2012 Delhi Gang Rape, the poorly administered institutional framework continued when the 2013 Nirbhaya Fund, totalled at Rs. 3000 crores, was only utilized after three years in creating several crisis centres and 24x7 women’s helpline (Human Rights Watch). 

Evidently, stereotyping is inevitably present in the assessment of various cases of gender violence, and thus must be eliminated to move towards an unbiased judicial outcome. It is imperative to ensure stringent enforcement of rules and regulations, such as the Criminal Law Amendment Act 2013, for the protection and assistance of victims of gender violence. Additionally, consistent training programmes must be instructed frequently to sensitize working police personnel and a witness protection program must be instructed to avoid any victim humiliation. Crisis intervention for incidents of gender violence must be treated with utmost importance by establishing nationwide crisis centres in large numbers that are fully equipped and available around the clock. Other than transparency in spending, it is essential to create a community for the affected women, through different women’s rights associations and human rights organizations, to help with recovery from the long-term psychological effects. The implementation of these recommendations will certainly take time in coming into full effect, but will help in bringing gender equality in judiciary system of India.