"Sexually Provocative Dress" Remark In Bail Order: A Case Of Judicial Stereotyping

A Sessions Court of Kerala recently received a lot of flak for its order granting anticipatory bail to author and social activist Civic Chandran in a sexual harassment case. Media across the globe reported on the order which drew criticism, not because of the grant of bail alone, rather, because of the reasoning provided for the grant of such bail. The reasoning thus provided for granting bail to the accused was that the offence of sexual harassment was not prima facie attracted when the complainant woman was wearing 'sexually provocative dresses'. The language employed by the Sessions Judge in this order amounts to judicial stereotyping. This article seeks to discuss the limits placed upon the emancipatory potential of law caused by judicial stereotyping.

What is Judicial Stereotyping?

Judicial stereotyping refers to a generalised preconception by a court of law attributed to a group, such as women in the present case. Whether blatantly hostile (such as "women wearing sexually provocative clothes invite sexual harassment") or seemingly benign (such as "women need protection" or "women are natural nurturers"), judicial stereotyping not just perpetuates inequalities but also violates law. It is based on irrational predispositions and generalisations, rather than concrete facts. In practice, this results in women being constitutionally excluded and disenfranchised from the legal system. Women's access to justice, which is both a fundamental human right and an essential means to implement other human rights, is inadvertently curbed by a judicial set-up which is entrenched in patriarchy and is oblivious to her needs.

The issue of judicial stereotyping has long been a part of Indian judiciary. For instance, in the present case, the Sessions judge, instead of relying upon impartial and neutral facts, based his order upon a patriarchal stereotype– that if a woman is dressed in a "sexually provocative" manner, she must have invited sexual advances. He further stated that the reluctance of the complainant to file the complaint immediately after the alleged crime was committed could not be explained as she was an "educated lady who is fully aware of the consequences of sexual assault", implying that educated women had an additional burden when it came to the law of consent. Similar stereotyping was done by the Delhi High Court in its 2017 judgement of Mahmood Farooqui v. State (Govt of NCT Delhi), where the Court stated that "intellectually/academically proficient" women "of letters" must make their "unwillingness known" to the accused and that "a feeble no may mean a yes".

These judgements go directly against the definition of consent introduced by the Indian government in its 2013 criminal law amendments which were based on a series of recommendations made by a specially constituted committee and primarily focused on crimes against women. Here, the definition of consent added specifically with reference to sexual assault was "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act." In both the aforementioned judicial pronouncements, the judges, instead of relying upon the definition of consent provided in the 2013 amendments, let their inherent biases determine whether consent existed in the case or not.

Courts have an obligation to ensure reliance of victims on their impartiality and neutrality. This responsibility of judiciary is undermined by judicial stereotyping and employing language with endorses institutionalised gendered hierarchy.

Supreme Court's View on Judicial Stereotyping

The Supreme Court of India, in the case of Aparna Bhat v. State of Madhya Pradesh gave a categorical decision against judicial stereotyping in the country. In this case, a complaint was filed by public spirited individuals against the injurious precedent set by the Madhya Pradesh High Court in the case of Vikram v. The State of Madhya Pradesh. Here, after allegedly sexually assaulting the victim, the accused filed an application seeking a "pre-arrest" bail, which he was granted. The impugned bail order provided the accused a bail on the condition that the accused visit the complainant and request her to tie a rakhi to him while promising to protect her. This condition of tying rakhi, metaphorically transformed an alleged molester into a brother through a judicial mandate. The condition imposed had no nexus to the object of the bail provision and resulted in not just the re-victimisation of the victim but also caused an added risk of sexual violence to her through the denial of redressal by courts. It also converted the heinous act of sexual assault into a minor transgression which could be remedied by a compromise.

The Supreme Court of India quashed this bail order on the grounds that it was legally unviable and arbitrary. The judgment was not so much about the merits of the impugned bail order and the conditions imposed thereof, as it was about the prohibition of demonstrating entrenched paternalistic and misogynistic attitudes by courts through judgments. Here, the court held that the "use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances". Further, the court, while asking judicial officers to avoid stereotypes such as– "being alone at night or wearing certain clothes make women responsible for being attacked" or "a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or 'has asked for it'", unequivocally stated that–

"Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past "conduct" or "morals" of the prosecutrix, should not enter the verdict granting bail."

The Supreme Court recognised that in cases of sexual offences, the judiciary had a responsibility to avoid perpetuating gender stereotypes and endorsing institutionalised gendered hierarchy, which is deeply ingrained in social and cultural attitudes of India. Through this judgment, the Supreme Court mandated gender sensitisation in foundational training of all judges, lawyers and public prosecutors.

More recently, in XYZ v. State of Madhya Pradesh & Ors., the Supreme Court noted that legal proceedings tend to be more onerous for complainants of sexual assault as they are dealing with trauma and societal shame. Thus, reiterating the importance of the Courts dealing with the victims of sexual crimes in a sensitive manner, the Supreme Court issued a slew of directions to the trial courts to avoid agony and harassment for women who file complaints of sexual harassment. Among the directions, was the duty of trial courts to ensure that the sexual history of the aggrieved woman not be referred to, in cross examination. This was added to prevent judicial stereotyping against women.

Conclusion

The order of Kerala Court discussed in this article is just one of many instances of judicial stereotyping in the country that exist despite clear guidelines by the Supreme Court against the same. In light of the plethora of discriminatory judgments preventing victims of sexual assault from securing effective remedy, India should consider providing statutory protection against judicial stereotyping. In this regard, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) jurisprudence must be referred to. For instance, the CEDAW Committee, in Vertido v. Philippines, declared that the judiciary should not establish its own "inflexible criteria" about the proper behaviour of victims based on preconceived notions. India can also take an inspiration from General Recommendation 28 of the CEDAW committee which provides a right against judicial stereotyping.