When social and cultural norms routinely transform into extra-legal standards of scrutiny, and institutional mechanisms morph into hetero-patriarchal modes of inquiry, constitutional norms of equality and dignity are shredded.
LEGAL rules try to make sense out of messy realities, by curving tropes of ‘reasonableness’ in various formulations of ‘reasonable man’, ‘reasonable woman’ and reasonable expectations, to borrow from human rights activist Usha Ramanathan’s neat categorization of women’s laws in her pioneering work in the 1990s. The reasonable victim in law is the perfect victim — she is usually dead or bears visible marks of injury on her body; she does not smoke, drink or have male friends, and she does not show any skin. She barely exists.
Judging a woman based on her clothing and making assumptions on such a basis is a tale as old as time. From laws enforcing women’s clothing in ancient Rome to World War II’s domestic production regulations in the U.S.A. impacting the length of women’s skirts, to the recent instance of a Kerala sessions court order granting bail to writer and activist Civic Chandran in a sexual harassment case remarking on the complainant’s dress, control of women’s sartorial choice has a long history. However, when social and cultural norms routinely transform into extra-legal standards of scrutiny, and institutional mechanisms morph into hetero-patriarchal modes of inquiry, constitutional norms of equality and dignity are shredded.
The reasonable victim in law is the perfect victim — she is usually dead or bears visible marks of injury on her body; she does not smoke, drink or have male friends, and she does not show any skin. She barely exists.
The Kozhikode Sessions Court granted anticipatory bail to Chandran by observing that the offence under Section 354A (sexual harassment) of the Indian Penal Code is not prima facie attracted when the woman was wearing “sexually provocative dresses”. It needs to be stated here that the accused himself had sourced the said images and submitted them along with the bail application.
The court, exercising its moral nod of agreement with the accused, goes on to state: “The photographs produced along with the bail application by the accused would reveal that the de facto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused.”
This essentially implies that the accused is provoked by the sexually provocative nature of the complainant’s dress and that there is always an external stimulus for men to sexually harass women. In other words, women must bear responsibility for the acts of men.
The bail order is a clear example of judicial stereotyping, an exercise rampant in the history of Indian courts. To clarify, judicial stereotyping is a barrier to justice, based on which judges arrive at decisions as a result of their preconceived notions and beliefs instead of facts and legal standards. This has appalling consequences for many victims, since judicial stereotyping has a wide-ranging impact on how judges perceive facts and the identities of petitioners. It could lead judges to doubt petitioners, witnesses and other individuals involved in the judicial process, not on the basis of credible information, but due to their biases. Judicial stereotyping threatens the impartiality of the judiciary and may erode the trust of litigants in a judicial system.
Indian courts have often played on such stereotypes in order to arrive at decisions, and cultural stereotypes against victims of sexual harassment are wildly rampant. For instance, the acquittal of journalist and novelist Tarun Tejpal last year by a court in Goa in a rape case included worrying references to the behaviour of the victim, and her alleged “flirtatious and sexual conversations with her friends” were held against her. Here, the court held women, especially victims of sexual assault, to an unbelievably high standard of ‘normal’ or ‘good’ conduct.
Judicial stereotyping is a barrier to justice, based on which judges arrive at decisions as a result of their preconceived notions and beliefs instead of facts and legal standards.
The Karnataka High Court, while granting anticipatory bail to a rape accused in 2020, observed in its order that it was “unbecoming” of an alleged rape victim to have fallen asleep after being “ravished”. The Punjab and Haryana High Court, in 2017, released on bail three university students convicted for the rape of another student. The basis of such order was the victim’s “misadventures and experiments”, her “promiscuity”, and the absence of brutal violence accompanying the sexual assault. In 2020, the Madhya Pradesh High Court granted bail to a man accused in a molestation case on the condition that he would give the victim sweets, and have her tie a ‘rakhi’ on his wrist.
After an open letter was written by the Supreme Court Women Lawyers Association to the Chief Justice of India in December 2020 highlighting the entrenched patriarchy of courts, the Supreme Court laid down a number of guidelines in Aparna Bhat versus State of Madhya Pradesh (2021) disallowing judges from relying on gender stereotypes such as ““good” women are sexually chaste” or women who drink and smoke ‘ask’ for sexual advances or presume that a sexually active woman consented to rape, while hearing cases of sexual assault. The court also categorically mentioned that the lived experiences of sexual assault victims must not be disqualified on the basis of stereotypes perpetuated against them.
However, a year after Aparna Bhat, we are back to where we are.
With specific reference to recent bail orders secured by Chandran from the Sessions court, four important ideas stand out. First, the judgement of women on the basis of what they wear; second, the idea of the ‘perfect’ victim; third, the constitutive element of caste in the landscape of legal reasoning; and fourth, the idea of the ‘perfect’ accused that the bail order gently espouses.
Victim’s attire shouldn’t factor into judicial decision-making
Coming to the first issue, the age-old obsession with deriving meaning and character from a woman’s attire continues to persist in several ways, and this has found its way in the judicial pen. Research shows that women who dress provocatively are judged negatively due to perceptions of promiscuity. Studies go to the extent of showing that men overestimate the sexual intent of women based on what they are wearing. While external stimuli or provocation is no legal excuse for any offence, including sexual harassment, stereotypical ideas about the same meander into the thickets of judicial reasoning, dislocating the ingredients of a penal offence without any difficulty.
The court ferociously attempts to resurrect the reputation of the accused in a bid to construct him as a perfect accused in the eyes of law – an accused who can wield ‘reputation’
As evident in the instant bail order, the judge holds that the prima facie requirement in section 354A – ‘unwelcome physical contact’ – is displaced as a result of the victim’s clothing. Here, assigning character to a woman’s clothes was sufficient to undermine the constitutive elements of the very offence. In such a context, judicial stereotyping becomes part of the vicious cycle that perpetuates the objectification of women by causing judges to misinterpret and misapply laws.
The second issue – the trope of the ‘perfect victim’ – has invited much debatein socialand legal disciplines. According to the perfect victim trope, the woman at the receiving end of sexual violence must check all boxes for a supposedly ‘innocent’, ‘well-behaved’ women: one who does not drink or smoke, one who dresses modestly, does not go out late at night, is a virgin, does not lie, get angry, and is considered ‘normal’ in all respects, like that of a sanskari bharatiya naari (traditional Indian woman).
This trope has been played by courts several times, and, needless to state, is extremely dangerous since it allows stereotypes about women to enter into our legal understanding of violence and aggression, which end up in erasing our legal understanding by replacing the same with artificial categories of victims. One may well remember the Delhi High Court’s judgment in Mahmood Farooqui versus State (Govt. of NCT of Delhi) (2017),in which the accused, on appeal, was acquitted of rape. In its judgment, the high court attempted a purposive (mis)interpretation of the position of law on what constitutes consent by being largely influenced by the victim’s previous relationship with Farooqui, her being a “woman of letters”, and the supposed feebleness with which she said ‘no’ to the sexual act.
Thirdly, another bail order secured by Chandran from the same court and the same judge in another case of sexual harassment, also resurrects reasoning in the infamous Bhanwari Devi gangrape case in Rajasthan in 1995, in which the trial court acquitted the accused on the ground that they were middle-aged, dominant caste men who were unlikely to rape the victim, hailing from an oppressed caste. The trial court had reasoned that “an upper-caste man could not have defiled himself by raping a lower-caste woman”and “a middle-aged man from an Indian village could not possibly have participated in a gang rape in the presence of his own nephew”.
In the above bail order too, reflection of this reasoning can be observed. The Sessions court said that offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (‘Atrocities Act’) will not prima facie stand against the accused because it is “highly unbelievable that he will touch the body of the victim fully knowing that she is a member of Scheduled Caste. In order to attract the offence under the Act, it has to be established that the act of the accused was with the knowledge that the victim belonged to a member of ST/ST.”
At the same time, and fourthly, the court ferociously attempts to resurrect the reputation of the accused in a bid to construct him as a perfect accused in the eyes of law – an accused who can wield ‘reputation’. The court hence reasons that “available materials clearly showthat this is an attempt to tarnish the status of the accused in society. He is fighting against the caste system and is involved in several agitations. The accused is a reformist and is engaged in fighting against the caste system, writing for a casteless society.” Hence, the court reasons that offences under the Atrocities Act will not prima facie stand against the accused. The accused becomes the victim in the cycle of stereotypes in the eyes of law.
Judges must remember that judicial stereotypes compromise the impartiality and integrity of the judicial system, and can potentially lead to miscarriage of justice and revictimization of complainants.