Recently, the Supreme Court has taken a significant step towards change by releasing a handbook for judges and lawyers to use in court, replacing words filled with anti-women sentiments in the name of long-standing male dominance with new words. This important intervention by the apex Court is based on understanding how the power of words influences society in general and various fields, especially the legal field. In the preface of the book, the Hon’ble Chief Justice of the Supreme Court states that this handbook is intended for the legal community to understand and respond to gender-based misconceptions. The Supreme Court has also directed that harmful gender-based misconceptions should not be used in judicial pronouncements and legal drafting.
The handbook released by the Supreme Court contains a large collection of words and phrases currently used and new words and phrases suggested for use. It recommends a change in the words used in the judicial system and suggests new words to be used in drafting, court judgments, and arguments. Further, the top court instructs that such words should not only be avoided when making judgments in court but also that they should be responded to and corrected. Reliance on such misconceptions will prevent justice from being served. Judges should try to understand and avoid such misconceptions.
The Gender-based misconceptions lead to various forms of denial of justice. The court’s effort is to form a view based on equality, without evaluating facts separated by gender differences. The same court itself has pointed out many previous judgments and directed that gender-based misconceptions should not occur anymore.
The handbook provides two lists of words and phrases currently used and new ones to be used. It instructs not to use the old ones anymore. A large collection of words is presented here, through which the Supreme Court itself recommends using new words, avoiding words that are misused in the legal field that reflect male dominance and anti-women sentiments. This calls for a change in the legal field itself.
The highest court of justice has recommended changing and suggesting new language usages that portray women as second-class citizens. Historically, many factors have given rise to such gender-based misconceptions.
The following 10 terms related to women that were previously used should all be replaced simply with ‘woman’, as directed: career women, chaste woman, easy virtue, fallen woman, Harlot, Indian woman / western woman, Seductress, Slut, Whore, woman of loose morals/easy virtue, licentious woman, wanton woman etc. Additionally, there are also few new terms have also been suggested to replace those used in relation to children such as ‘Child victim of human trafficking’ instead of ‘child prostitute’ and ‘Child of unmarried parents’ instead of ‘illegitimate child’ etc. New terms have been suggested to replace previous misconceptions that portray women sexually. Some non-masculine terms, that is, words that are portrayed as activities of women only, are changed and new ones are suggested. Similarly, some terms used only in the masculine form are changed and new ones are suggested such as entrepreneur, breadwinner, lazy person, sloth etc.
Misconceptions hinder the recognition of individuals as distinct entities, hence resulting in erroneous perceptions. The failure to comprehend matters accurately obscures judgement. Many times, Judges unknowingly cling to and rely on such misconceptions. Such thinking, without different analysis, will be contrary to the constitutional value that everyone is equal. Such misconceptions affect even judicial reasoning, and if that happens, it leads to a person’s individual freedom and the perpetuation of discrimination.
Society perceives that women and men are assigned distinct responsibilities, which are deemed their obligations. Similarly, women are perceived to possess diverse personality characteristics. For example, if judgments are made on the assumption that women will lie about being raped or sexually abused, it will be completely against justice. Some notions that establish that women and men have certain innate characteristics are related to their physical, emotional, and cognitive abilities.
The handbook lists and explains in detail, with reasons, that the following misconceptions are wrong; women are emotionally reactive, make decisions without logical thinking, are physically weaker than men, are passive, compassionate, unmarried women are unable to make crucial decisions, backward women have fewer abilities, and so on. The basis for all of this is each individual’s social, family, genetic, and occupational background. Nutrition is the basis of physical ability. Gender-based duties are a social construct. The handbook analyzes and points out gender-based misconceptions in many lower court judgments on Bhanwari Devi’s case & Vishaka Guidelines, citing them as examples.
It explains various misconceptions, including: (a) the misconception that sex workers cannot be raped (b) the misconception that a healthy man would not be willing to engage in sexual relations or rape a woman with disabilities (c) the misconception that if the rapist marries the woman who was raped, her dignity will be restored (d) the misconception that women often falsely complain of sexual assault and rape (e) the misconception that victims of sexual assault and rape will be constantly crying, showing despair and suicidal tendencies, and those who don’t show these signs are lying (f) the misconception that if a woman talks to the person who sexually assaulted or raped her, her accusation is false (g) the misconception that a woman who has been sexually assaulted will file a complaint immediately, and if it’s delayed, it’s false (h) the misconception that upper-caste men do not engage in sexual relations with lower-caste women, and if such a complaint is made, it’s false etc. It explains that each incident should be viewed differently, that each incident should be understood on its proper basis and judgment should be implemented, and that things should not be evaluated on the basis of general misconceptions. The handbook goes on to debunk many more misconceptions related to sexual assault, rape, and societal expectations of women’s behavior. It emphasizes that centuries of male dominance have made women’s lives miserable in many ways. Two types of moral yardsticks have been formed, one for women and one for men. This unequal yardstick is used to justify and mitigate men’s mistakes and, conversely, to lead women into misery and punish them.
The survivor should not be subjected to mental stress again or hurt their mental and physical dignity. There is a special responsibility to correct such untimely things, not only to avoid these misconceptions but also to stand against them, to identify and correct them, to resist such wrong beliefs inherent in society and for judges to understand what is right and what is wrong. Based on previous court rulings, few types of issues are presented in detail. Male-centered issues and their deconstruction, examples of incorrect positions taken by lower courts in general cases related to women were pointed out. In cases such as rape, how to handle the matter in the absence of physical injuries, and that it should be structured according to the specific nature of the case. The credibility of their statement should not be doubted based on misconceptions. The Two-finger test is illegal and unconstitutional.
Delay in filing a case and delay in registering an FIR should not mechanically be placed at the point of suspicion. Therefore, the Apex Court has thus presented matters in great depth and accuracy.
Saji Mathew Ombudsman, MGNREGS and PMAY (G) Alappuzha & Member of Child Welfare Committee, Alappuzha, Kerala.
Biranchi Narayan P. Panda is Associate Professor (Law) Xavier Law School