“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways.”

“Both these witnesses are ignorant and illiterate women belonging to the Schedule Tribe, and it is extremely doubtful if they could speak of age with precision.”

“Instances of woman behaviour are not unknown that a feeble no may mean a yes.”

“The photographs reveal that the de facto complainant herself is exposing to dresses which are having some sexual provocative one.”

These are court observations that are archetypal instances of the judiciary conforming to stereotypes. Yet they comprise only a handful of similar observations made by Indian courts over the past decades.

However, new guidelines issued by the Supreme Court today aim to identify, understand and combat such stereotypes and remove them from courts and judgements. These guidelines are part of a handbook titled Combating Gender Stereotypes, with a foreword written by Chief Justice of India DY Chandrachud who says language is “critical” to law. 

Stereotypical language “may reinforce ideas contrary to our constitutional ethos” and even distort a law’s application, the CJI emphasised. “Many words or phrases that are used in legal discourse both by lawyers and by judges reflect archaic ideas with patriarchal undertones.” 

The handbook features a glossary of terms and phrases bearing a hallmark of stereotypes alongside their progressive alternatives. It also discusses common patterns of stereotypical reasoning based on preconceived notions, and various Supreme Court orders that dispel such biases. It defines a stereotype as “a set idea that people have about what someone or something is like, especially an idea that is wrong”. These stereotypes are “often subconscious”.

For example, “career woman”, “chaste woman”, “fallen woman” and “western woman” are terms that promote stereotypes and must be replaced by simply “woman”, the report says, not for legal purposes but “to recognise the humanity of the people it referred to”.

Other phrases slotted as “incorrect” include biological sex or biological male or female, which should be replaced by “sex assigned at birth”. A child who has been trafficked should be used instead of child prostitute, housemaker instead of housewife; sex worker instead of prostitute; woman instead of whore; and transgender instead of transexual.

Gender stereotypes

The handbook says stereotypes about women are often deemed as their “inherent characteristics”, like purportedly being overly emotional, physically weak, passive, illogical, incapable of taking decisions, or wanting to have children. 

But gender does not determine a person’s capacity for rational thought, physiological attributes or personality traits, the handbook says. Stereotypes “cloud judgements” and restrains one from viewing a person as an individual with “unique characteristics”. 

The handbook emphasises that sex refers to the biological attributes of individuals, while gender refers to socially constructed roles, behaviours, expressions, and identities. “Gender identity is not limited to a binary – woman or man, but rather exists on a spectrum and can evolve over time.”

It notes that society often ascribes specific roles to specific genders – for instance, “men are often believed to be more suited to professional jobs whereas women are believed to be more suited to care for their families”. Deviations from these gendered roles leads to “social stigmatisation”. 

Women are commonly stereotyped on the basis of gender roles. The handbook mentions a Kerala High Court observation in a case of domestic violence. “As a devoted wife, it was no doubt [the wife’s] duty to get up before her husband was to leave for his work…” It reinforced the stereotype that it was a woman’s exclusive responsibility to perform household chores.

The handbook also highlights social conditioning that reinforces notions that women must do all household chores; women who work outside their homes do not care about their children or are less competent; and that they must be “submissive or subordinate to men”. 

A common assumption is often that a “woman’s character” is based on her choices of clothing, sexual history or perceived behaviour and that a delay in reporting a case of sexual assault implies that they are lying. Assumptions that “women are very likely to make false allegations of sexual assault or rape” may cause a judge to unfairly discard or discount the testimony of a survivor or victim of sexual assault “leading to grave injustice”, the report says.

Precedents that reject stereotypes

The handbook details key precedents that “categorically reject” several of the stereotypes discussed in the document.

For instance, in State of Jharkhand v. Shailendra Kumar Rai in 2022, the apex court reiterated its ban on the so-called “two-finger test” for rape. The judgement said it was “based on the incorrect assumption that a sexually active woman cannot be raped” whereas “nothing could be further from the truth”. It concluded that the two-finger test “violates the right of rape survivors to privacy, physical and mental integrity and dignity”.

In State of Punjab v. Gurmit Singh in 1996, the court said the testimony of a survivor of sexual violence is “inherently credible” and that courts must not “display an inherent suspicion of testimony on the incorrect assumption that women as a class of individuals lie about sexual violence”.

“Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?” the court said.

In the same judgement, the court emphasised that delays in filing FIRs or complaints cannot be “mechanically used to create doubt”. 

“The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to a variety of reasons particularly the reluctance of the  prosecutrix or her family members to go to the police and complain about the incident,” it said.

The handbook concludes with the hope that the document will become a “catalyst for change within the legal profession”.