Judiciary Institutional Issues

[op-ed snap] Gender of justiceop-ed snap


Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The need for gender sensitisation in judiciary


Sexist notions in the judiciary

  1. Conservative and progressive elements tend to coincide in judicial discourse
  2. The Supreme Court has recently passed certain key judgments to safeguard the rights of women
  3. It abolished triple talaq, upheld women’s autonomy, while declaring the law on adultery unconstitutional, and ruled that the bar on women’s entry to the Sabarimala temple is illegal
  4. But the judiciary has also been a purveyor of sexist notions — at times, perhaps inadvertently. Victim-blaming by the courts lends credence to certain stereotypes, and such responses go on to influence the entire criminal justice system

Analysis of rape cases

  1. In a study conducted by researchers of the National Law University, Delhi, 50 rape case judgments of the Supreme Court were analysed to understand how the court tends to perpetuate gendered opinions
  2. The researchers also tried to understand if the court evaluates victims in a stereotypical manner
  3. These include how a rape survivor would or ought to react, what a perpetrator would do after the rape and whether a sexually active victim would make a false rape accusation
  4. It was observed that judges often have a stereotypical image of a rape victim
  5. The researchers found that the judges betrayed sexist notions of gender roles, showed a tendency to use insensitive language and made comments that undermined the seriousness of the incident
  6. Certain judgments did have sensitive comments that broke gender stereotypes and rape myths. However, such verdicts were very few

Findings of the study

The study came out with four significant findings

  1. First, was a sharp increase in gender insensitive comments in cases where the woman was sexually active. Sexist comments were made in 52.3 per cent of the cases which involved a sexually-active victim
  2. Second, the presence of a female judge on the bench led to a sharp decline in sexist comments. There was no female judge in 44.4 per cent of the cases where the bench made a sexist comment. But only 14.2 percent of the benches with a female judge made a sexist comment
  3. Third, the conviction was overturned in 80 per cent of the cases in which the bench made gender insensitive comments
  4. Fourth, gender insensitive comments have declined with significant amendments in law. While all the cases studied prior to 2003 had gender insensitive comments, only 15.1 per cent of the judgments after the 2013 criminal law amendment carried such comments

Way forward

  1. Rape victims are subjected to institutional sexism that begins with their treatment by the police, continues through a male-dominated judiciary influenced by notions of victim blaming and ends in the acquittal of many alleged rapists
  2. The solution lies in initiating conversations amongst those who are entrusted with setting the tone of public discourse
  3. Gender sensitisation of the judiciary and appointing more female judges is imperative
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