CURING THE PATRIARCHAL MINDSET OF THE LEGAL SYSTEM
GS Paper 2: Judiciary: Organisation and Functioning
Important for
Mains exam: Working of judicial system in India and issue related to it
Context
A sessions court in Kerala, while granting anticipatory bail recently to an accuse in case of alleged sexual harassment, observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the de facto complainant was dressed in ‘sexually provocative dresses’.
Though the order of the session court has been stayed by the Kerala high court, this observation was clearly an affront to a woman’s constitutional right to dignity, life and personal liberty, and privacy.
Why this observation is a problem
O Choice of dress is an integral part of an individual’s freedom of privacy and dignity.
P Judging a person’s dress is not the business of a judge; nor is the dressing style of a woman, a licence to outrage her modesty.
P In a liberal democratic state, choice of dress is a ‘self regarding act’ over which the individual is sovereign as
J.S. Mill pointed out.
O This mentality of forcing the choice of clothes is age old, i.e.
P In 1583, King Henry III of France decreed that fabrics such as velvet, satin and damask to be limited to the elite class. The king stressed that God was angry because he could not recognise a person’s status from his clothes.
P A similar royal order was issued by King Edward IV of England in 1463 stating that God was displeased by excessive and inordinate apparel.
P In 1429, Joan of Arc adopted male clothes; this wearing of male attire was among the charges against a lady when she was tried by the Bishop of Beauvais, as donning male attire was contrary to the modesty of women and prohibited by divine law.
This mentality is not suitable for a liberal-democratic country which identifies its women as equal citizens.
Supreme court’s stand on such observation by judiciary
Aparna Bhat vs The State Of Madhya Pradesh (2021) case: In this case, SC had held that “the use of reasoning/ language which diminishes the offence and tends to trivialize the survivor [in gender violence cases] is especially to be avoided under all circumstances.
Effect of this judgement:
This judgements made it clear that the following conduct, actions or situations are deemed irrelevant:
O to say that the survivor had in the past consented to such or similar acts
O she behaved promiscuously,
O her acts or clothing, provoked the alleged action of the accused,
O she behaved in a manner unbecoming of chaste or ‘Indian’ women, or
O she had called upon the situation by her behaviour, etc
So, the controversial comment of the sessions court judge is a clear violation of the guideline given by the Supreme Court of India.
Chanakya IAS Academy | 2 |
Historical Injustice with women in judicial system
Chanakya Daily Editorial Analysis
O It has been pointed out many times that the process of going to court is hard for women; it is even harder when women do not have financial or emotional support from their family, custom or the present reading of the law.
O The representation of women in the Indian judiciary too is poor.
P For example, in March this year, Justice Indira Banerjee, the senior most woman judge in the Supreme Court, highlighted how the top court (since its inception in 1950) has seen only 11 women judges.
P The inclusion of women in the judiciary would ensure that the decision making process is more responsive, inclusive and participatory at all levels. But this is only a dream till now.
P In the existing unsatisfactory jural environment, the occasional escape of the patriarchal cat from the judiciary’s bag is quite expected.
Is this limited to India only
O NO, there are a number of instances around the world which shows that this phenomenon is not confined to India only.
P e.g. In Bradwell vs The State [of Illinois] (1872), the Supreme Court of the United States held that‘god designed the sexes to occupy different spheres of action and that it belonged to men to make, apply, and execute laws and regarded it as an axiomatic truth’.
P The fact of the case was that Myra Bradwell, residing in the State of Illinois, made an application to the judges of the Supreme Court of that State for a licence to practise law.
P The Supreme Court denied her the permission and was of the opinion that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator”.
O Which shows that women were treated as second class citizen or slaves of men around the world since ages.
Possible cure to the problem
O A remedial measure to cure the patriarchal mindset of the socio-legal system would be the inclusion of feminist jurisprudence in the curriculum for law students
O Sensitisation of legal practitioners and judicial officers about feminist jurisprudence.
P Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women and girls and those who may not conform to cisgender norms.
P It also considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction.
P Feminist legal philosophy is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.
● Understanding the legal conundrums with the assistance of feminist jurisprudence would definitely help us debunk the patriarchal delusions of grandeur.
Conclusion
A judge of the Indian Republic who is committed to the trinity of liberty, equality and fraternity, should not be a reincarnation of age old kings or bishops. Courts, specially lower courts need to be more cautious while drafting the decision or giving observations on a case related to women dignity. The guidelines given by the Supreme Court of India in various cases should work as guiding principles.for whole judicial system.[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]