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Review: SC directs Patriarchal and stereotypical notions about women to be avoided under all circumstances in judicial pronouncements

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In this roundup of the important court judgments, we look at directions about gender sensitisation in judiciary, ballot facility for absentee voters, participation of transgenders in NCC, deaths due to manual scavenging.

Supreme Court: Patriarchal and stereotypical notions about women to be avoided under all circumstances; gender sensitization training to judges and courses in LLB and AIBE syllabus

In the case Aparna Bhat vs. State of Madhya Pradesh, the apex court held that the use of  patriarchal and stereotypical reasoning/language which diminishes sexual crimes and tends to trivialize the survivor, is to be avoided under all circumstances.

The supreme court was hearing an appeal against certain bail conditions in the case of Vikram vs State of Madhya Pradesh in Madhya Pradesh high court. In this case involving a sexual offence against a woman, the bench of Justice Rohit Arya ordered the bail for the accused on the condition that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come.”

The present appeal in the supreme court was against the adverse precedent set by the abovementioned part of the judgment of the Madhya Pradesh High Court. The appellants brought to notice various decisions and orders involving offences against women where the observations made by the judges were extraneous. In many cases, especially under the POCSO Act (Protection of Children from Sexual Offences Act), the courts have granted bail on the plea that an agreement to marry had been reached between the accused and prosecutrix. The appellants also submitted that while adjudicating matters of sexual harassment and rape, judges have made shocking remarks on the character of the prosecutrix.

Upon examining all submissions, the Supreme court opined that in a legal system where judgments of courts set precedents, and particularly within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute. Thus, the judge is not only communicating to the concerned parties; the judge is also addressing the broader legal community— other lawyers, judges, legal academics, law students—and the public at large.

The bench of Justice AM Khanwilkar and Justice S. Ravindra Bhat emphasised that the judgment is not only about the merits of the conditions of the bail order but is meant to address a wider canvas of entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments. The judgement notes that the role of all courts is to make sure that survivors of sexual assault can rely on their impartiality and neutrality, at every stage in a criminal proceeding. Therefore, reinforcement of patriarchal stereotypes, in court utterances or orders, through considerations that are extraneous to the case, would impact fairness.

While condemning the MP High Court’s order directing ‘rakhi tying’ as a condition for bail, the judgement explains the term ‘judicial stereotyping’, which refers to the practice of judges perpetuating harmful stereotypes, particularly for women victims and survivors of violence.

In conclusion, the judgement held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances. The judgement mentions the instructions to be followed in cases of sexual violence:

  1. Bail conditions should not mandate, require or permit contact between the accused and the victim.
  2. Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim.
  3. In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and a copy of the bail order to be sent over within two days.
  4. 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 dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail.
  5. The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction.
  6. The sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments.
  7. Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

The SC directed that the bail conditions in the judgment of MP high court be set aside and expunged from the record. The judgement mandates that a module on gender sensitization be included, as part of the foundational training of every judge. The National Judicial Academy has been requested to devise, speedily, the necessary inputs which have to be made part of the training. Public Prosecutors and Standing Counsel were directed to undergo mandatory training in this regard. The Bar Council of India (BCI) was also directed to mandatorily include courses on sexual offences and gender sensitization in the syllabus for the All India Bar Examination (AIBE) and consult subject experts in regard to similar courses that should be taught at the undergraduate level, in the L.L.B. (Bachelors of Law) program.

Madras HC: Upholds postal ballot facility for absentee voters.

In the case Dravida Munnetara Kazhagam v. Union of India & Ors., the Madras high court upheld the validity of Section 60(c) of the Representation of People Act, 1951 which enables certain classes of persons their basic right to participate in the democratic process.

The high court was hearing a writ petition filed by political party Dravida Munnetara Kazhagam (DMK) challenging the constitutional validity of Section 60(c) of the Representation of Peoples Act 1951. The provision allows the issue of postal ballot to certain classes of persons (or absentee voters) i.e., electors above the age of 80 years, electors with a physical disability, electors in quarantine due to COVID-19, and electors rendering essential services, in the upcoming elections to the Tamil Nadu legislative assembly.

The DMK party submitted that under the guise of this provision, the Central Government and Election Commission have issued several amendments, rules, and notifications with respect to “class of persons” as postal ballot voters, without any guiding principle. By notification published on 19 June 2020, the Central Government introduced COVID-19 suspects or affected persons as another class of persons who could exercise their franchise without physically coming to cast the ballot at the election booth. The latest amendment to the Conduct of Election Rules, 1961 was the lowering of the age of senior citizens from 80 years to 65 years. In this context, the petition also challenged the 2019 and 2020 amendments to the Conduct of Election Rules 1961 together with the guidelines issued by the Election Commission on 17 September 2020 and  02 February 2021 & 27 February 2021.

The bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held that the provision has enabled the inclusion of certain classes of persons, who would have been otherwise excluded from exercising their franchise, with the right to use the postal ballot and participate in the celebration of the festival of democracy.

The Bench noted that DMK has failed to establish that the provision is in derogation of any constitutional provision or principle or statute. The judgement recognises that there does not seem to be any arbitrariness in the classification of the persons permitted by the Rules of 1961 to cast their vote by postal ballot. Since the consideration of postal ballet is about who may not be able to physically attend a polling booth to cast her vote, there is no arbitrariness in the classes of persons enumerated by the amendments of 2019 and 2020. Particularly because the object of such changes appears to be to enable such classes of persons their basic right to participate in the democratic process.

Kerala HC: Government and Established obliged to provide full and effective participation of Transgender person and their inclusion.

In the case Hina Haneefa vs. State of Kerala, National Cade Corps. & Ors., the high court gave a green signal to the enrolment of a transgender person (the petitioner) in the National Cadet Corps (NCC) and instructed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community.

The court was hearing a petition filed by a transwoman, who was denied permission to apply for enrolment in her University’s unit of the National Cadet Corps (NCC). The petitioner, who is a student at the University College, Thiruvananthapuram, stated that she was assigned male gender at the time of birth and that at the age of 21, a sex reassignment surgery was performed. She was declined admission to the NCC unit on the ground that there is no provision for the enrolment of transgender students.

A counsel statement was placed on record by the Central Government Counsel which stated that the NCC was raised with an aim to provide a suitable environment to train the youth to take up a career in Armed Forces. It follows a curriculum and training module following the Armed Forces which is sometimes gender-specific due to differences in physical, biological, and psychological aspects. Since training parameters of boys’ and girls’ cadets are different, the statement clarifies that trans-women in a girls’ unit will have an unfair advantage over other girls’ cadets and trans-men in a boys unit will have an inherent disadvantage.

The judgement notes that the provisions of the National Cadet Corps Act, 1948 recognises NCC units and cadets only from males and females. It originally provided for enrolment of only male members and amendments were introduced to include a senior division for women cadets as well. 

The bench of Justice Anu Sivaraman observed that one cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The judgement states that with the further march of the times, the change in perceptions and declarations by the Apex Court as well as the statutory enactments recognising the rights of the transgender persons must be taken into account by the respondents. The present situation has to be viewed in the light of the Transgender Persons (Protection of Rights) Act, 2019 which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.

In view of the specific provisions of the 2019 Act by which a transgender person has a right to be recognized not only as a transgender but also a right to self-perceived gender identity, the judgement rules that the petitioner is entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self-perceived gender, that is, the female gender.

A further direction was given to the government to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons in the NCC.

Madras HC: Heads of Corporations and Municipalities are ‘personally liable’ for death due to manual scavenging.

In a significant observation, the Madras high court held that the heads of Corporations and Municipalities are held ‘personally liable’ for any death to anyone engaged in manual scavenging within their territories.

In a previous order on 10 March 2021, the high court sought immediate information from all the districts, including the municipalities and municipal corporations, pertaining to manual scavenging work undertaken or to be undertaken through contractors. However, there was no response from the State and no report has been filed. 

The judgement notes the petition has been pending from 2017 to stop this inhuman practice which amounts to exploitation of a particular class that has suffered for generations. It also highlights that while Municipalities and Corporations may have stopped directly engaging in manual scavenging work, it appears that the contractors are engaged for the purpose, and Corporation and Municipal officials look another way, while manual scavengers are still sent down the pits. In several cases, people appear to slip and fall into the pits and die after inhaling the noxious fumes. It is important to note that there have already been 6 deaths till the end of February 2021.

The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held that it is high time that the heads of Corporations and Municipalities are held personally liable for any death to anyone engaged in manual scavenging within their territories.

The judgement clearly states that any manual scavenging death within the jurisdiction of the relevant Municipality or Corporation will result in the Commissioner or Chairperson or the controlling authority of the relevant body facing criminal charges and be subjected to immediate arrest.

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