Gender, violence and discrimination: Reflections on the role of the Court
By PUCL Bulletin Editorial Board
March, which is Women’s history month, provides us a much needed moment to reflect upon the hierarchies imposed by gender and the unfair and arbitrary treatment of women and transgender persons around the world. Nowhere is the serious backlash on the question of gender more apparent than in the place where women’s history month originated, namely the United States. The controversy around the Epstein files is only indicative of the impunity of the global elite when it comes to illegal sex with minor girls. The normative consensus achieved by the development of notions such as the right of the child to autonomy, dignity and freedom from sexual predators is threatened by the impunity of the most powerful to violate these norms at will.
In the Indian context as well, the brazen contempt for the norm that young girls should be protected from sexual violence is shocking. The Minister of State, Hardeep Puri, in responding to his name appearing in the Epstein files sought to trivialise Epstein’s crimes, stating: “He was convicted for soliciting a prostitute and a woman who was underage. And that’s it.” The fact that there is a legal and normative consensus that sexual intercourse with a child is a crime, seems not to have registered in Mr Puri’s statement.
This contempt was on full display in the judgment of the Allahabad High Court in a case involving the rape of a 11-year-old girl from Kasganj, Uttar Pradesh by two accused named Pawan and Akash in Complaint Case No. 23 of 2022. The accused had gained the trust of the child’s mother by offering to drop the minor home on their motorcycle. Instead of taking the usual route, they diverted and stopped near a culvert where they isolated the girl. They then proceeded to grab the girl’s breast, break the string of her pyjama and tried to drag her underneath the culvert, thereby attempting to disrobe and further violate her. On hearing her screams, passersby intervened, due to which the accused fled from the scene, and the offence was not carried further. According to the High Court, the actions described above are conduct preparatory to rape but do not amount to the attempt to rape. The High Court opined that there was no sufficient indication of a determined intent to commit rape and noted, among other things, that there was no allegation that the accused were sexually aroused or “sexually unsettled”. This treatment of the facts and the language used in the High Court order was not only extraordinarily insensitive but represented a flawed understanding of the legal boundary between preparation and attempt in sexual offence cases.
Fortunately the Supreme Court took up this matter and came to a different finding. the Court opined that the factual matrix left no room for doubt that when the accused had lured the child away, taken her to a secluded culvert, grabbed her breasts, broken the string of her pyjamas and tried to drag her underneath, they had gone beyond mere preparation and had started executing the offence of rape. On this basis, the Supreme Court categorically held that the view taken by the Allahabad High Court in treating the acts as mere preparation was “patently erroneous”. The bench stated that “a bare perusal of the allegations left no modicum of doubt that the accused proceeded with a predetermined intent to commit an offence under Section 376 of the IPC on the minor victim.”
Beyond the correction of the specific legal error, the Court remarked that no judge or judgement can be said to do complete justice if it is inconsiderate toward the factual realities and vulnerabilities faced by litigants, particularly victims of sexual offences and other vulnerable groups. In this context, the Court highlighted how insensitive or dismissive remarks can have a chilling effect on victims’ willingness to come forward and can perpetuate harmful stereotypes, especially where children and women are concerned. The judgement thus links doctrinal accuracy on preparation versus attempt with the broader constitutional and human rights imperative of treating victims with dignity and respect.
To translate these concerns into concrete institutional reform, the Supreme Court directed the constitution of an expert committee under the chairmanship of former Supreme Court Judge Justice Aniruddha Bose. This five-member committee has been tasked with preparing within three months a set of draft guidelines for the training of judges on handling cases of sexual offences and matters involving vulnerable persons. The guidelines are to focus on inculcating sensitivity and compassion in judicial reasoning, simplifying language in judgements, accommodating linguistic diversity and ensuring that courts use a victim-centric approach. The Court also envisaged that the committee may compile commonly used offensive or derogatory expressions across different regions and languages so that judges are equipped to identify and avoid them in court proceedings and judgements. In this way, the decision not only vindicates the particular child victim in Kasganj but also seeks to reshape the judicial culture dealing with sexual offences in India in a more humane and rights-respecting direction.
However it is troubling that the Chief Justice has chosen to discard the gender glossary published during the tenure of D Y Chandrachud which was meant to offer ‘guidance on how to avoid utilising harmful gender stereotypes, in particular those about women, in judicial decision making and writing.’ The reason given by the Chief Justice was that the glossary was too “technical” and “Harvard oriented.” This discarding of an important step in ensuring judicial sensitivity, renders the working of the Court less institutional and more subject to individual predilections. One hopes that the current effort will take forward the learnings of the glossary and not discard it in the search for an indigenous jurisprudence!
The question of gender and rights is not only limited to the question of sexual violence. Even when it comes to livelihood issues, the Supreme Court has failed to address the concerns of the most marginalised women. In Enn Thozhilalagal Sangam v Union of India, the Supreme Court dismissed a petition filed by ten domestic worker unions from around the country asking that their right to a minimum wage was rooted in the Constitution and should be judicially recognised. This is nothing less than a missed opportunity as domestic work remains excluded from the core protection of labour law, namely the right to a minimum wage. All the Court did was to mandate the constitution of a ‘Committee comprising subject experts to consider the desirability of recommending a legal framework for the benefit, protection and regulation of the rights of domestic workers.’ The Court concludes with the pious hope that, ‘a suitable mechanism will be developed by the Competent Authority in each State to improve the conditions of domestic workers and prevent the exploitation of unorganised workers, especially for the purpose of paying minimum wages.’
Gender continues to be the form of structural violation which the Court fails to take note of. In the SIR process data from Bihar show that nearly 60% of all deletions under SIR are women: female voters dropped by about 22.75 lakh (around 6.1%) versus 15.55 lakh men (3.8%), meaning six of every ten deleted names were women.
The reasons for the same as highlighted by petitions before the Supreme Court are the ECI’s use of “biological age” algorithms (to detect improbable ages), migration presumptions, and document heavy verification, all of which disproportionately targets the rural poor, migrants as well as border communities and effectively operates as a mass disenfranchisement exercise.
The case highlights how technocratic electoral roll management can mask deep structural biases against women. The Court notes serious concerns about the opacity of the SIR process, particularly the absence of clear, individualised reasons for deletions and the lack of publicly accessible, gender disaggregated data. The proceedings also reveal that the verification architecture effectively inverts the burden of proof, requiring citizens to continuously demonstrate eligibility, something women are least equipped to do. Overall, the case foregrounds the need for transparent, rights-respecting revision procedures that recognise gendered life patterns instead of penalising them if the constitutional promise of universal adult suffrage is to remain meaningful for women. However the Court has failed to recognise these structural patterns of exclusion and provide concrete relief.
The other category who will be disenfranchised by the SIR process are the transgender community. Transgender persons usually have documents with different names, and sometimes even leave behind documents when they run away from their homes. In cases of gharanas or homes where they reside with their chosen families, they would also struggle to furnish proof of residence / address.
In the middle of these failures by the Supreme Court the judgment in the case of Dr. Jaya Thakur v Union of India is a ray of light. The Court in this case, recognises that the failure to ensure that school going girls have access to menstrual hygiene products is a violation of the right to health, the right to equality, the right to dignity as well as the right to education.
As the Court observes, ‘MHM measures are inseparable from the right to live with dignity under Article 21… menstrual hygiene management is not confined to sanitation, it includes bodily autonomy and decisional freedom. The denial of adequate facilities, appropriate sanitary products, or privacy effectively compels a girl child to manage her body in a manner dictated by circumstance rather than choice. Autonomy can be meaningfully exercised only when girl children have access to functional toilets, adequate menstrual products, availability of water, and hygienic mechanisms for disposal.’
The Court highlights the question of stigma and casts the onus on men as well. As the Court opined, ‘Menstruation should not be a topic that is only shared in hushed whispers. It is crucial that boys are educated about the biological reality of menstruation. A male student, unsensitized towards the issue, may harass a menstruating girl child which may discourage her from attending school. In this context, the responsibility weighs even heavier on the male teachers. They must be sensitized to the needs of a girl child. For instance, a request to the restroom or the sudden need to leave the classroom must be treated with sensitivity rather than straight dismissal or invasive questioning. To put it briefly, we would say, ignorance breeds insensitivity, knowledge breeds empathy.’
One hopes that the Supreme Court will begin to address gender and its relationship to violence, stereotypes and discrimination in all its forms, taking inspiration from its Dr. Jaya Thakur judgment! That will be an appropriate way of marking women’s history month!