Bilkis Bano to Civic Chandran: Indian judiciary’s stand on sexual harassment cases reiterates misogyny knows no politics
Sumati Thusoo
Despite misogynistic observations repeatedly cropping up in judicial pronouncements, little to no step seems to have been taken on the ground to sensitise judges, or to identify persons who might not be fit to decide matters of sexual assault.
Picture credit: News Nine
On August 12, a Sessions Court in Kozhikode, Kerala, granted anticipatory bail to a 74-year-old Malayali playwright, poet, editor, author and social activist, Civic Chandran, in a sexual assault case. The case, which was registered on 29 July 2022, was of an incident that purportedly took place on February 8, 2020. In the complaint, it was alleged that while attending a camp convened by the accused and others at Nandi beach in February 2020, the 30-year-old complainant was sexually assaulted by the accused. It was stated that the accused caught hold of her hand and forcefully took her to a secluded place while the other participants were returning. The accused then allegedly made her lie on his lap, pressed her breast, and tried to outrage her modesty. Following this incident, a First Information Report (FIR) was filed against the accused for offences under Sections 354A(2), 341 and 354 of the Penal Code, 1860. The complainant had also alleged the accused to be a repeat offender who has sexually assaulted other women in the past, evident from another sexual harassment case against him wherein a woman writer belonging to a Scheduled Caste was molested during a book release in April 2022. Following the incident, a case was filed under Sections 354, 354A and 354D of the Indian Penal Code.
While granting the anticipatory bail to the accused, the Court remarked, “the defacto complainant herself was dressed in sexually exposing and provocative clothes. Hence Section 354A will not prima facie stand against the accused.” Chandran was also granted bail in the other case as well wherein the court observed that offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 would not prima facie stand against the accused. The Kerala judge stated that it was highly unbelievable that the author would harass a woman knowing that she belonged to the Dalit community. The order further said, “the accused is a reformist and is engaged in fighting against the caste system, writing for a casteless society. It is highly unbelievable that he will touch the body of the victim fully knowing she is of the Scheduled Caste.”
This is not the first time that a judicial officer has passed such a misogynistic order in a sexual assault case. The Supreme Court, in the case of Aparna Bhat and Ors vs State of Madhya Pradesh, while deciding on a challenge to a bail order by the High Court that amongst other things, had directed a person accused of sexual harassment to visit the house of the complainant and request the complainant — to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come, passed general directions to refrain courts from making observations in rape and sexual assault cases that adversely affect the dignity of the survivor. The Hon’ble Court, while citing a litany of instances of Indian courts at various levels stated that the wide prevalence of such extraneous remarks necessitates an urgent intervention. Hence, the Court firstly declared that such remarks are unacceptable as they have the potential to cause grave harm to the prosecutrix and the society at large, secondly it reiterated that judicial orders have to conform to certain judicial standards, and thirdly it passed directions to take necessary steps to ensure that this does not happen in the future. The Court issued directions on gender sensitisation of the bar and the bench and also passed specific directives that the courts should desist from making observations on the complainant “being alone at night or wearing certain clothes make women responsible for being attacked.”
The learned Attorney General while making his submissions in the Aparna Bhat matter, in support of the appeal also filed a detailed note suggesting the steps that should be taken to sensitise all stakeholders, especially courts, while dealing with offences against women. While highlighting the observations made in cases such as State of Punjab vs Gurmit Singh, Sakshi vs Union of India etc., the Attorney General listed additional considerations while deciding cases pertaining to crimes against women, one of which clearly states that the bail conditions in such a matter must be free from stereotypical or patriarchal notions on women and their place in society. It was also argued that in order to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar are made aware of gender prejudices that hinder justice. Using the Bangkok General Guidance for Judges on Applying a Gender Perspective in South East Asia by the International Commission of Jurists, the report recommended facilitating a gender-sensitive approach by training judges to exercise their discretion and avoid the use of gender-based stereotypes while deciding cases pertaining to sexual offences.
It is apparent that the Sessions Court in Kerela, in the case at hand, has failed to follow the explicit instructions of the Supreme Court. However, what is more, concerning is that despite misogynistic observations repeatedly cropping up in judicial pronouncements, little to no step seems to have been taken on the ground to sensitise judges, or to identify persons who might not be fit to decide matters of sexual assault. The question that arises then is: Can this deep-rooted misogyny prevalent among judicial officers be solved only through a judicial diktat?
For a survivor of sexual assault, a precedent set by the Supreme Court is of little importance if the judicial officer deciding her case fails to comply with it, the proof of the pudding is in the eating.
The actual fallacy in the order of the Kerela Court is the reliance on the narrative of the “provocatively dressed” woman which is centred around the idea that women are responsible for men’s sexual behaviour. The patriarchal understanding of sexual desire is that the male sexual desire is omnipresent and an uncontrollable dangerous force. The onus of avoiding or preventing the arousal of such an uncontrollable force of nature by male sexual desire is put on women in a way that they should learn to avoid arousing it in the first place. What is then reflected in a judgement wherein the survivor is blamed for dressing provocatively indeed encourages men to feel entitled to act on their sexual desires regardless of the women’s objection and rejection of those desires. The privileged status of male sexual desire is further reiterated and reinforced in popular media as well as the law which comes out in the form of the judges referring to a survivor’s suggestive/provocative clothing as grounds for bail.
This narrative of the provocatively dressed takes away the blame from men who sexually harass or assault women because it reinforces the belief that women who wear revealing clothing want sexual attention from all men, and thus they are asking for it. When the term ‘provocative’ is used for women’s clothing, it is to diminish the men’s responsibility for their actions towards women. Such a narrative of provocative dressing frames female sexual agency from a male gaze which comes with an inherent sexual entitlement assigned by a patriarchal overlay, along with depicting women as sexualised objects who have the potential to affect and disrupt men and to attract sexual violence and aggression.
When one reads the Civic Chandran bail order, one finds that apart from dealing with relevant factual issues such as the delay in filing an FIR, or lacune in the narrative of the complainant, the court’s attention also seems to have been brought by the defence on what the complainant was wearing and her general behaviour. Such a defence becomes even more problematic when the defendant is someone from the political bent of Civic Chandran, a radical left thinker.
While discussing the prevalence of this malice in the Indian judicial system, it is relevant to not only restrict ourselves to the occurrences inside the courtroom and what transpires between the Judiciary and the lawyers. Misogyny is equally apparent even on the executive side of the legal justice system. In a recent and far more shocking example, the Gujarat government released 11 convicts who had been sentenced to life imprisonment in the Bilkis Bano gang rape and murder case during the 2002 Gujarat communal riots. The convicts who walked out of the Godhra sub-jail after the Gujarat government approved their application for remission, were greeted with garlands at the Vishwa Hindu Parishad office, an Indian right-wing organisation.
Whether it is the lawyer of a radical left thinker who in order to defend his client resorted to slut-shaming of the survivor, or the rapists of Bilkis Bano who were welcomed with garlands on their release by a radical right-wing organisation, the deeply entrenched misogyny can be seen prevailing across the political and social spectrum in the country.
From a feminist standpoint, it is extremely important to analyse power in a way that one understands, critiques and ultimately challenges the areas of unjust power relations impacting women in more ways than one. When a woman who has been subjected to sexual violence, gathers the courage to approach Court, it is with a belief that the Court is the protector of the law and Constitutional values and is the apex authority in the country that holds power over all other persons and institutions. The survivor expects that the Court will look at her situation from a neutral perspective and will be able to protect her not only from the perpetrator but also from patriarchal and misogynistic elements of society which are the breeding grounds for violence against women in the first place. Then for a complainant to find out that the Judge harbours misogynistic ideals himself comes as nothing short of a betrayal. Having had their hands burnt by the legal system, it is only to be expected that people will vent their feelings on public forums including social media.
Recently, following the social media outrage on the comments made by Supreme court judges in the Nupur Sharma case, a member of the bench called for strict regulations of social media, claiming that media trials are not healthy for rule of law. He said that social media is overrun by people “possessing half-truth and information” and those who don’t understand rule of law, evidence, judicial process and limitations. He said that a trial is supposed to be carried out by the courts and the trials by digital media are undue interference for the judiciary. Constitutional courts have always graciously accepted informed dissent and constructive criticism and that personal attacks on judges will not be tolerated. The judiciary which has till now been supportive of dissent against the government will have to take this opportunity to introspect whether its own officers are failing to keep up with the social realities centred around gendered intersectionalities and how the average citizen will raise its voice against such anachronisms in judicial orders. If the courts continue to harbour misogynistic ideas which will regress advocacy efforts by women’s groups and organisations then the courts should be ready for public scrutiny.
This article was first published on News Nine on August 22, 2022
