My Lords, Sex Workers Are Dignified Individuals As Well

Preconceived notions about women come out in the open through some recent orders passed by the Supreme Court.

Any reform effort in India is almost always a case of three steps forward and two steps back. So is the quest for gender justice in India’s laws. The tentative steps being taken following the implementation of the Verma Committee Report and the progressive judgements of the Bombay High Court on abortion laws and re-entry of women into the Haji Ali Dargah have been pushed back by two particularly bad decisions of the Supreme Court delivered in the first week of October.

The two judgements stand out not just on the issue of whether they decided the law rightly or wrongly. A judgement incorrect in law can be fixed through legislation or review, but what these two judgements do is reveal the true depths of misogyny that lie in the minds of the upper caste, upper class, male-dominated higher judiciary.

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Slut-Shaming the Victim

In the first of the two judgements, Raja v State of Karnataka, authored by Justice Amitava Roy on behalf of himself and Justice PC Ghose, the Supreme Court was hearing an appeal against conviction for rape, filed by four men.

In acquitting these four men, the Supreme Court relied almost exclusively on the hearsay testimony of an acquaintance of the victim, on the victim’s purported behaviour during and after the gangrape and the medical tests done after the incident.

There is little discussion of relevant case laws, analyses of applicable provisions or even a proper assessment of all the testimonies on the basis of which the Karnataka High Court had convicted the accused. Instead, the judgement seems to have been delivered on the basis of sheer prejudice — on the mere (uncorroborated) allegation that the victim might have been a sex worker.

The Supreme Court, in effect, slut-shames the victim for having been “accustomed to sexual intercourse” despite living separately from her husband for more than a year. Lest I be accused of paraphrasing or interpreting, I’m reproducing verbatim the passage from the judgement:

The medical opinion that she was accustomed to sexual intercourse when admittedly she was living separately from her husband for one and one-and-a-half years before the incident also has its own implication. The medical evidence as such in the attendant facts and circumstances in a way belies the allegation of gang rape.

Supreme Court judgement, dated 11 October, 2016

How Courts Expect Women to Behave

This is not even perhaps the most egregious passage in the judgement. The Supreme Court, if the judgement is to be believed, has certain expectations of how women are to behave while they’re being gangraped by four-five men in a moving auto. If a woman doesn’t react in this exact fashion, the Supreme Court believes that she probably consented to it. Again, to avoid any accusations of giving it a spin, following is the relevant paragraph from the judgement:

Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.

Supreme Court judgement, dated 11 October, 2016

The awfulness of this judgement has to be read to be believed.

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Defining Duties of a ‘Good’ Hindu Wife

But it’s not just working class women who have been at the receiving end of the Supreme Court’s prejudices. In Narendra v K Meena, the Supreme Court held that a Hindu woman who does not want to share her matrimonial home with her in-laws, is committing an act of “cruelty” which would entitle her husband to divorce her. Although this is a different bench, comprising Justices Anil R Dave and L Nageswara Rao, the judgement is no less egregious when it comes to its casual and unfounded misogyny.

Less than a judgement, it read more like the one-sided litany of woes, one can expect the so-called “men’s rights activists” to expound upon when they blame feminism for their personal problems.

Even the woman’s suicide attempt in this case is viewed as a way of entangling her husband in litigation — the Supreme Court seems to think that the third-degree burns and a painfully horrific way of dying are clearly nothing compared to a possible criminal case.

The Supreme Court’s positing a Hum Saath Saath Hain type joint family as the only just and proper way for the Hindu families to cohabit has to be read to be believed.

In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

Supreme Court of India in Narendra vs K Meena

There are perhaps good grounds to grant divorce to a couple that is no longer interested in continuing the relationship because of serious differences between them. Indeed, the judgement discusses that in some detail. Yet, the detour taken, through notions of what “normal” Hindu women are expected to do, while entirely unnecessary in the context of the case, is nonetheless illuminative of what the judges think.

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Addressing the Inherent Malaise

Judges are not robots who are incapable of having pre-existing views or prejudices or notions. What they cannot do, however, is to use these to form the basis of the law they’re laying down for the country rather than reason, logic or fact.

In a profession where women are few and far between, there is little serious challenge to the misogynistic notions that Indian men are fed with all their lives. Likewise, the higher judiciary is essentially a self-selecting all boys’ club that sometimes feels like the middle-aged equivalent of Calvin’s GROSS club.

This systemic problem is highlighted in a couple of other recent judgements which have also betrayed judges’ thoughtlessness and callousness. In a 2009 judgement, the Supreme Court didn’t think it was “cruelty” under Section 498-A of the Indian Penal Code, 1860 when the in-laws kick their daughter-in-law.

Likewise, in 2010, the Supreme Court thought it perfectly acceptable to call a man’s partner his “keep”. The backlash against these judgements have prompted a rethink in both the cases, and one hopes the Supreme Court sees better sense in these two cases as well.

It’s all fine and well to call out and express outrage over obnoxious things the male judges say in their judgements about women, and their notions of what women should do and be like. The fact remains that the Indian legal profession and by extension, the higher judiciary are extremely hostile to women entrants and colleagues. These judgements are the periodic manifestations of this underlying malaise and addressing this has to be a priority.

(The writer is a Visiting Fellow at Vidhi Centre for Legal Policy. He can be reached at @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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