Curing the patriarchal mindset of the legal system

Source: The post is based on the article “Curing the patriarchal mindset of the legal system” published in the “The Hindu” on 30^th August 2022.

Syllabus: GS 2 – Important Provisions of the Constitution of India; and Functioning of the Indian Judiciary

News: Recently, The Kerala High Court stayed the order of the sessions court in Kerala in a case of alleged sexual harassment.

Observations of the Session Court

The Session court granted anticipatory bail to an accused in a case of alleged sexual harassment. The court observed that Section 354A of the Indian Penal Code(IPC) would not be used for the offense, as the de facto complainant was dressed in sexually provocative dresses.

Section 354A of the IPC covers the offenses; “Assault or criminal force to woman with intent to outrage her modesty”

What are the major issues in the observations made by the session court?

As per the author Faisal C.K., Under Secretary (Law) Kerala government, the following are the issues with the observations:

(1) The Sessions Court’s ratio decidendi (reason) is a reflection of the patriarchal mindset. Therefore, the observation violates a woman’s constitutional right to dignity, life and personal liberty, and privacy.

(2) The Sessions court judge’s comment is a violation of the guideline given by the Supreme Court. The Supreme Court in Aparna Bhat vs The State Of Madhya Pradesh (2021) held that “the use of reasoning/language which diminishes the offense and tends to trivialize the survivor [in gender violence cases] is especially to be avoided under all circumstances.”

(3) Further, these reasons cannot be ground for granting bail or other such relief to the accused person.

(4) The award-winning author, Githa Hariharan, points out that It is not easy for women to approach the court. The process 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.

(5) Further, the representation of women in the Indian judiciary too is poor. Since the inception of the Supreme Court in 1950, the apex court has seen only 11 women judges.

What should be the course of action?

There should be the inclusion of feminist jurisprudence in the curriculum for law students. This would act as a remedial measure to cure the patriarchal mindset of the socio-legal system.

This is because the feminist philosophy of law identifies the pervasive influence of patriarchal norms on legal structures and demonstrates their effects on the material conditions of women. Further, these are aimed to introduce reforms to correct gender injustice, exploitation, or restriction.

There should be sensitization of legal practitioners and judicial officers about feminist jurisprudence.

In a liberal democratic state, the choice of dress is a ‘self-regarding act’ over which the individual’s will is sovereign. It is an integral part of an individual’s freedom of privacy and dignity. Therefore, a person’s dress or the dressing style of a woman cannot be a license to outrage her modesty.

There should be the inclusion of more and more women at all levels of the judiciary to ensure that the decision-making process is more responsive, inclusive, and participatory at all levels.