Supreme Court’s handbook on gender stereotypes is a step towards change, say experts

Last week, a 30-page handbook was released by the Supreme Court of India in an attempt to eliminate “archaic ideas with patriarchal undertones” reflected in the words and phrases used in legal discourse by lawyers and judges in the country. 

Calling out the ‘stereotype promoting language’ embodied in terms such as ‘concubine’, ‘harlot’, ‘career woman’, and ‘chaste woman’, Chief Justice of India, DY Chandrachud, has offered a glossary of what is aimed to be a more affirming language to women and different gender identities in the handbook. 

For instance, he has replaced the word ‘forcible rape’ with ‘rape’, and substitutes ‘harlot’, ‘career woman’, and ‘chaste woman’ with ‘woman’. However, some human rights activists and lawyers have said this umbrella term could dilute important contexts and crimes in which women have been mentioned. 

Justice Chandrachud, in the handbook, explains how these terms make their way into important cultural and social situations even today, when the gender discourse is seeing some of the most vibrant, nuanced, and intellectually queer voices in many years. 

“Assumptions are often made about a woman’s character based on her expressive choices (e.g., the clothes she wears) and sexual history. These assumptions may also impact how her actions and statements are assessed in judicial proceedings. Assumptions based on a woman’s character or the clothes she wears diminish the importance of consent in sexual relationships as well as the agency and personhood of women,” he says.

Among the stereotypes he debunks in the handbook is, ‘men who sexually assault or rape women are typically strangers and not known to the woman.’ In reality, men sexually assault or rape a woman known to them in some capacity. The woman may be a colleague, employer, employee, neighbour, family member, or friend. 

Another perception is that men do not want to engage in sexual relations with women from oppressed castes; when in fact, ‘r\ape and sexual violence have long been used as a tool of social control, and dominant caste men have historically used sexual violence as a tool to reinforce and maintain caste hierarchies,” he says.

Divya Bharathi, a filmmaker and anti-caste activist from Chennai, says the deep-rooted biases in the judicial system were what forced her to leave law practice years ago. 

“There are still core beliefs on caste and gender among the legal fraternity that lead to the abuse of power and perpetuate social norms that keep marginalised communities at the bottom most rung of the ladder,” she says. “There continue to be very bigoted views on women, gender minorities, and sexuality in courts, and while this handbook is a starting point, big changes need hard, persistent efforts in application,” she says.  

Relevant today, more than ever

In 1992, Bhanwari Devi, a government social worker from Rajasthan, intervened to prevent a child marriage. Devi, who hailed from an oppressed caste, complained that multiple dominant caste men violently assaulted and raped her as a retaliatory measure. 

In 1995, the trial court acquitted the accused, based on these observations: members of a dominant caste would not rape a woman from an oppressed caste; men of different castes would not participate in a gang rape; older men cannot participate in a gang rape; and it was improbable that a woman could be raped in the presence of her husband.

Three decades later, little seems to have changed when it comes to the socio-cultural position that women and gender minorities hold in justice delivery. 

In April 2021, the Guwahati police arrested a student from the Indian Institute of Technology (IIT) Guwahati, for allegedly forcing a female student to drink alcohol and sexually assaulting her when she was inebriated. In August that year, the Guwahati High Court granted him bail on the grounds that he was “a talented student pursuing a technical course”, and “the state’s future asset.”

The same month, the Chhattisgarh High Court acquitted a man accused of marital rape, relying on an exception under Section 375 of the IPC, which states that “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Advocate and gender-rights crusader Sudha Ramalingam says the judicial system is rife with deep-rooted biases and patriarchy, and calling out terms and usages that keep it that way, will at best make lawyers and judges think twice before using them. “The handbook is a small step in the direction of transforming the narrative on women and gender minorities. It is not a revolution. It’s just like how dowry continues unabated despite a law against it,” she says. “An overall change of heart is what we must aim to achieve,” she adds.

What does a gender-affirming handbook mean?

The Supreme Court handbook on combating gender stereotypes replaces the words ‘prostitute’ and ‘hooker’ with ‘sex worker’, and busts stereotypes that a man cannot rape a sex worker by explaining that sex workers do not consent to engage in sexual relations with any or all men by virtue of their profession. 

The offence of rape may be made out if the sex worker does not consent for any reason, including for the reason that the man was unwilling to pay her. It points out that sex workers are one of the groups most vulnerable to sexual violence.

“In a system where they did not find equal access to resources, education, and employment, which pushes them into sex work, how they choose to live and work later in life cannot be anyone else’s but their choice. The only way the case of a sex worker goes to trial is when they are viewed as victims. ‘Sex worker’ as a term shifts the power of choice to them,” says Shyamala Natraj of South India AIDS Action Program (SIAAP), a Chennai organisation working with adolescents, youth, and families on gender, nutrition, sexuality, sexual and mental health, and livelihoods.

She adds, “The handbook is an important guidance, no doubt. But for it to translate into practice, the it needs to reach law colleges across the country, police; the legal fraternity needs to be sensitised and recruitment processes for judicial roles needs to be versed.” 

SIAAP has been working closely with women and transgender sex workers, educating them of their rights and helping them access safety and healthcare. 

The distinction in terminology may be made with an intent to shatter patriarchal control of women’s sexualities, and restore agency and the power of choice on women to use their bodies the way they want to. But it risks appropriating certain terms that have connotations already defined in the legal framework, says Sunitha Krishnan, a human rights activist and the founder of Prajwala, an anti-trafficking organisation based in Hyderabad. 

“The term 'prostitution' has been defined under section 2(f) of the Immoral Traffic Prevention Act as ‘misuse or sexual exploitation of anyone for business purposes’. It should be construed accordingly--as commercial sexual exploitation. It cannot be substituted with the term ‘sex worker’, which refers to someone offering sexual services by choice,” says Krishnan. 

“Using the term ‘sex worker’ also comes from a workers’ movement ideology in the context of issues like workers’ rights, safety, and taxes. It cannot be used in a scenario where we are talking about a woman, who  due to constrained choices is compelled to opt for prostitution, or has been trafficked,” she says.

Krishnan has written a letter to the CJI with an appeal for the “mindful understanding” of these terms and their connotations in the handbook.  

On Tuesday, Mala Bhandari, Founder of Social and Development Research & Action Group, a Noida-based NGO working with child rights, education, and gender sensitisation, took the handbook to a Prevention of Sexual Harassment (POSH) training with a KPO in Faridabad. 

“I studied it line by line to address the casual sexism that is prevalent in workplaces and educational institutions--in the names used for women, and the ideas held about their sexuality and bodies,” says Bhandari. 

“When you see the extent to which people in any position of power and in society have internalised these notions, you understand that everyone--from schools, police stations, hospitals, workplaces, and homes, need a handbook like this to take a closer look at themselves and how they perceive women around them.”

(Graphics and feature image by Nihar Apte)