Curing The Patriarchal Mindset Of The Legal System : Daily Current Affairs

Date: 31/08/2022

Relevance: GS-1: Salient features of Indian Society, Diversity of India. Role of women and women’s organization, population and associated issues; Effects of globalization on Indian society. Social empowerment.

Key Phrases: Objectification of women, Freudian slip, feminist jurisprudence, Feminist philosophy of law.

Context:

The observations of a sessions court in Kerala in sexual harassment case raised this question about patriarchal mindset being prevalent in our legal system.

Background

While granting anticipatory bail to an author and social activist in the State in a case of alleged sexual harassment, court observed that the offence under Section 354A of the IPC is not prima facie attracted when the de facto complainant was dressed in ‘sexually provocative dresses’.
Section 354A of the Indian Penal Code is related to assault or criminal force to woman with intent to outrage her modesty.
The sessions court had relied on photographs submitted with the bail application of the accused showing that the de facto complainant was wearing a dress that was ‘sexually provocative’ and hence, Section 354A would not be used against the accused.
The observation was clearly an affront to a woman’s constitutional right to dignity, life and personal liberty, and privacy. The Kerala High Court has since stayed the order of the sessions court.

Rationale proclaimed

The rationale proclaimed by the sessions court judge is a (patriarchal) Freudian slip.
In psychoanalysis, a Freudian slip is defined as an error in speech, memory or action that occurs due to the interface of an unconscious subdued wish or internal train of thought.
Terming a woman’s dress as ‘sexually provocative’ is a result of the objectification of women as an erotic quiddity.
This observation reflects a deep-rooted mindset of patriarchy that affected not only the individual judicial officer but also the entire socio-legal system.

Violations of the Supreme Court Observations

In Aparna Bhat vs The State of Madhya Pradesh (2021), the court 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.
Thus, the following conduct, actions or situations are deemed irrelevant e.g.
- To say that the survivor had in the past consented to such or similar acts
- Or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused,
- That she behaved in a manner unbecoming of chaste or ‘Indian’ women,
- Or that she had called upon the situation by her behavior, etc.
These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision.
They cannot be reasons for granting bail or other such relief.
The controversial comment of the sessions court judge is a clear violation of the guideline given by the Supreme Court of India.

A struggle for women

The process of going to court 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.
The representation of women in the Indian judiciary too is poor e.g. Justice Indira Banerjee, the senior-most woman judge in the Supreme Court, highlighted how the top court has seen only 11 women judges since its inception.
The inclusion of women in the judiciary would ensure that the decision-making process is more responsive, inclusive and participatory at all levels.
In the existing unsatisfactory jural environment, the occasional escape of the patriarchal cat from the judiciary’s bag is quite expected.
For women, ensuring human dignity is still a broken promise.

Examples from across the globe

Myra Bradwell in the United States made an application to the judges of the Supreme Court for a license to practice law.
The Court held that God designed the sexes to occupy different spheres of action and that it belonged to men to make, apply, and execute laws and regarded it as an axiomatic truth’.
It denied her the permission and was of the opinion that the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother which is the law of the Creator.
Thus, the attitude that women are the children of a lesser god ruling the judicial roost all across the globe.

Other examples:

In 1583, King Henry III of France decreed that fabrics such as velvet, satin and damask to be limited to the elite class. The king stressed that God was angry because he could not recognize a person’s status from his clothes.
As Britannica says, a similar royal order was issued by King Edward IV of England in 1463 stating that God was displeased by excessive and inordinate apparel.
In 1429, Joan of Arc adopted male clothes; this wearing of male attire was among the charges against her when she was tried by the Bishop of Beauvais, as donning male attire was contrary to the modesty of women and prohibited by divine law.
A judge of the Indian Republic who is committed to the trinity of liberty, equality and fraternity, should not be a reincarnation of Henry III, Edward IV or the Bishop of Beauvais.

Need for sensitization

A remedial measure to cure the patriarchal mindset of the socio-legal system would be the inclusion of feminist jurisprudence in the curriculum for law students and the sensitization of legal practitioners and judicial officers about feminist jurisprudence.
Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women and girls and those who may not conform to cisgender norms.
It also considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction.

Feminist philosophy of law

Feminist philosophy of law applies insights from feminist epistemology, relational metaphysics and progressive social ontology, feminist political theory, and other developments in feminist philosophy to understand how legal institutions enforce dominant gendered and masculinist norms.
Feminist legal philosophy is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.
Understanding the legal conundrums with the assistance of feminist jurisprudence would definitely help us debunk the patriarchal delusions of grandeur.

Individual’s choice

Choice of dress is an integral part of an individual’s freedom of privacy and dignity.
Judging a person’s dress is not the business of a judge; nor is the dressing style of a woman, a license to outrage her modesty.
In a liberal democratic state, choice of dress is a ‘self-regarding act’ over which the individual is sovereign as J.S. Mill pointed out.

Source: The Hindu

Mains Question:

Q. Inclusion of feminist jurisprudence in the law curriculum and a sensitization of legal practitioners are key to cure the patriarchal mindset of our legal system. Comment. [150 Words].