No more stereotyping: Supreme Court’s 12 ‘don’ts dos’ for judges writing orders in Cases of Sexual Offences

On Thursday, the Supreme Court of India directed all courts of the country to refrain from passing comments on the dressing, chastity and conduct of women while addressing cases of sexual offences. The apex court stated that “entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders” must be omitted. 

The Supreme Court also issued a checklist for judges to eliminate social bias from derailing judicial reasoning. A bench comprising Justices AM Khanwilkar and S Ravindra Bhat set aside an order released by the Madhya Pradesh High Court and made the statements. 

In the order, the HC asked the accused to get a rakhi tied on his wrist by the complainant as a condition for his bail and also asked him to pay ₹11,000 to her. The SC stated, “This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment. The law does not permit or countenance such conduct, where the survivor can potentially be traumatised many times over or be led into some kind of non-voluntary acceptance or be compelled by the circumstances to accept and condone behaviour that is a serious offence.”

In an attempt to quash misogyny and patriarchy, the Supreme Court cited 12 aspects where judges should avoid problematic remarks during hearings. They are as follows: 

1. Women are incapable of or cannot take decisions on their own.
2. Women are physically weak and need protection
3. Men are the “head” of the household and should take all the decisions relating to family.
4. Women should be submissive and obedient according to our culture.
5. Good women are sexually chaste.
6. Women should be the ones in charge of their children, their upbringing and care.
7. Women should be the ones in charge of their children, their upbringing and care. 
8. Motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother.
9. A woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”.
10. Being alone at night or wearing certain clothes make women responsible for being attacked.
11. Lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
12. Testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence case.

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