• In India, some laws have been enacted to grant protection to women, give them the opportunity to lead safer lives and to promote equality.
• However, one finds that our laws continue to support some archaic provisions which, in fact, promote discrimination and bias against women.
• Moreover, one can find judgment based on patriarchal belief of judges. Such beliefs should never enter judicial verdicts or orders or be considered relevant while making a judicial decision.

Patriarchy in Legal System

• A sessions court in Kerala granted an anticipatory bail to an alleged sexual harasser, citing that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the complainant was dressed in ‘sexually provocative dress’.
• Court added that the complainant was wearing a dress that was ‘sexually provocative’ and hence, Section 354A (‘Assault or criminal force to woman with intent to outrage her modesty’) 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 Supreme Court of the United States, in 1872, held that ‘God designed the sexes to occupy different spheres of action and that it belonged to men to make, apply, and execute laws.
• This judgement was passed when a woman in Illinois, made an application to the judges of the Supreme Court of that State for a licence to practice law.
• In 1583, King Henry III of France decreed that, fabrics such as velvet, satin and damask will 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.
• 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.
• Collegium system has always been considered as a male-dominated body.
• It is criticized for its lack of showing liberal and generous approach in terms of judicial appointments of women in higher Judiciary.
• Collegium system of supreme court is responsible for the appointment and transfer of judges in the Supreme Court and the various High Courts.

Criticism:

• Terming a woman’s dress as ‘sexually provocative’ is a result of the objectification of woman as an erotic quiddity.
• It is an unwitting sparking of a patriarchy that affected not only the individual judicial officer but also the entire socio-legal system.
• The Supreme Court in Aparna Bhat vs The State Of Madhya Pradesh (2021) had held that “the use of reasoning/language which diminishes the offence and tends to trivialize the survivor [in gender violence cases] is especially to be avoided under all circumstances.
• The controversial comment of the sessions court judge is a clear violation of the guideline given by the Supreme Court of India.
• 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 licence to outrage her modesty.
• In a liberal democratic state, choice of dress is a ‘self-regarding act’ over which the individual is sovereign to choose.

Road ahead

• Reservation of a significant percentage of seats in law schools and universities for women.
• Inclusion of feminist jurisprudence in the curriculum for law students and a sensitization of legal practitioners and judicial officers about feminist jurisprudence.
• Understanding the legal conundrums with the assistance of feminist jurisprudence would definitely help us debunk the patriarchal delusions of grandeur.
• Need to form a separate entity — National Judicial Infrastructure Corporation — to introduce inclusive designs for court complexes and create a more welcoming environment for women.
• Gender-neutral language is necessary for inclusiveness and for increasing sensitivity.
• It is also needed because it can positively reinforce a more inclusive and respectful narrative of women and change the imbalance.
• Women face difficulty in obtaining justice because majority of them don’t have financial or emotional support from their family, custom or the present reading of the law.
• Hence, a change in the social structure along with necessary awareness about the law should be imparted to each and every woman.
• Judges who studied from old schools and are patriarchal need to be sensitized.

A judge of the Indian Republic who is committed to the trinity of liberty, equality and fraternity, should be biased free as well as from patriarchal beliefs. Judge should take account of Feminist philosophy of law that considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction.