Judicial Stereotyping in Sexual Violence Cases and Secondary Victimization of Women in India

Abstract

The glorious heritage of India depicts an era where women were treated as equal to men howbeit, the present time depicts an entirely contradictory scenario wherein women encounter many onslaughts on their conduct and character in everyday existence. The ones who do not fall ‘in line’ with the patriarchal norms in any aspect of public or private life are often branded as ‘pushy’, ‘stubborn’, ‘bossy’ etc. The contemporary times have witnessed the harsh reality where women are facing a gender bias in almost every possible stage of their life. To eradicate this biasness towards women, our law-makers have developed several laws which are in the direction of positive discrimination. However, the question remains whether a change in laws can bring a change in society which is predominantly masculine as well. A fact that is more agonising and regressive is when the institution that is primarily driven by men, judge’s female conducts from a masculine point of view. Several decisions of varied courts in India such as Sri Rakesh B. v. State of Karnataka, Swami Chinmayananda v. State of U.P., Raja & Ors. v. State of Karnataka, etc. reflects secondary victimization of a woman who was a victim of a sexual offence. These judgments highlight how the judiciary either through its reasoning or language has either attempted to define the ‘ideal Indian woman’ or what is an ‘expected conduct’ from her. Such an approach not only diminishes the offence but also trivialises the survivor, leading to her secondary victimization. Usage of terms such as ‘character’, ‘chastity’, ‘submissive’, a virtue exclusively for women to possess, highlight how these attributes are a woman’s most prized possession and can be restored either by tying Rakhi or by marriage with her perpetrator. Such stereotypical attitude against women means that half of our population is living a disadvantageous life merely because of its gender. It is an ardent need of the hour to assess the rationale as well as the impact of such judgments. Justice is not a means, but it is an end, which everyone who is right on their part deserves. Thus, the current study is undertaken to critically analyse the cases decided by the Supreme Court as well as varied High Courts of India after The Criminal Law (Amendment) Act, 2013 which reflect the paternalistic and misogynistic attitudes. It calls for a need for gender sensitization amongst the office bearers of a powerful social institution such as the Indian Judiciary. The aim of the present study is to fulfil the demand for upliftment of the interests of women in the contemporary era without trying to mould them into an acceptable figure.