Can We Ever Rewrite the Sexism, Casteism Woven In the Language of Indian Courts?
“It’s hard to see whether legal language impacts the social or the social impacts the legal language – because they are feeding into each other.”
When a stranger groped Anjana’s* left breast, she froze for five seconds. Then the instinct to fight kicked in. She noted down the vehicle’s number as the two-wheeler slipped away, hurried to the police station, and documented the last 30 minutes in the official complaint. Breast, groped, person ran away. But this wasn’t enough. The police officer at the station asked to write that her “modesty was outraged.”
The terms “modesty” and “outraged” being weaved together gave her “the feeling of being a victim.” It implied there was a purity, a sanctity attached to her physical body. “And I don’t believe that my ‘sanctity’ was affected, in any way. I am trying to stand here with my head held high, and I would rather term this as his wrongdoing. It doesn’t make me impure.” Although Anjana didn’t want to make the change to her FIR, she had to yield eventually. She was told if she didn’t use this exact phrase, her complaint won’t be processed.
Four years later, when her case was called up in the courtroom, the lawyers once again asked her: “What did he do to you? And what happened to your modesty?”
“It was outraged,” she said once again through gritted teeth.
“The Indian judiciary holds a very unhappy record of such statements,” notes Surbhi Karwa, a feminist researcher and lawyer. If you parse through court judgments, a woman’s modesty and honor have a life of their own. It is outraged in some cases, ravished in others, and still others are instances where it is likened to a precious jewel, one that holds the “essence of one’s sex.”
The words written and spoken in Indian courts are archaic, exclusionary, and deeply patriarchal. “Language is power, and so is legal language. It guides your imagination,” Karwa notes. This language, when molded by people in positions of structural power, thus reproduces stereotypes, discrimination, and violence against historically marginalized people.
Why is the question of gender important in legal language? Simply because “everything – the whole world – is gendered,” argues Rachna Chaudhary, a professor at Ambedkar University who has researched the impact of sexism within the Indian legal system on women. The way the issues are framed “is contingent upon language. And no language is apolitical.”
Anatomy of bias
“The way Indian laws are drafted is definitely a colonial import,” says Ritwika Sharma, a research associate with Vidhi Center for Legal Policy. “In the 19th century … gender neutrality was never a priority for everyone.”
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Among the laws that are applicable to all genders, the pronouns he/him/his/himself are used to refer to all people. The crisis of gender pronouns and identity spills within the courthouse too. “[M]any times women judges are referred to as ‘My Lords’ or ‘Sir’ by even seasoned lawyers,” Tahini Bhushan, a Delhi-based lawyer, notes. This is reflective of an inherent maleness in language that starts with the way legislation is articulated.
This maleness then translates to perpetuating stereotypical ideas of womanhood, femininity, and patriarchal values in legislation. Between 1950 and 2019, Indian high courts and the Supreme Court have either quoted, cited, or otherwise referred to the Manusmriti(an ancient Hindu text that has been long critiqued for its dehumanization of women) a total of 38 times. Nearly 70% of these mentions happened in the last decade.
The tradition of judicial stereotyping has to do with both the way the laws are written and the way they are interpreted. “The role of the judiciary is to give “reason” with respect to a certain decision,” argues Karwa. “The biggest harm of these statements is they stereotype women in a certain manner, and these stereotypes take the place of reason then.” The stereotypes Karwa speaks of segregate women into two categories: those that need to be protected and the “others” whom the legal system doesn’t quite recognize.
The former aligns with the narrative of the “good woman” – a figment of the patriarchy’s imagination. “A wife should be a minister in purpose, slave in duty, Lakshmi in appearance, Earth in patience, mother in love and prostitute in bed,” the courts noted while ruling on cases of divorce.
A 2018 study, conducted by National Law University, Delhi, looked at Supreme Court judgments in 50 rape cases and found them to have stereotypical perceptions of the rape victim, such as framing the woman as “chaste, pure, monogamous, honorable and confined to the domestic sphere.” Courts also expect a “typical” reaction from women. In an infamous 2016 order, the Supreme Court remarked that the “victim must immediately hurry home in a distressed, humiliated and devastated state” after an assault or rape, lest it is “unusual.” The Karnataka High Court advised women not to immediately fall asleep after “the perpetration of the act” as that is “unbecoming of an Indian woman” – an order that had to be expunged later.
The “good” woman is thus also the “perfect victim.” In 2017, the Punjab and Haryana court released three men on bail who were convicted of using nude pictures of a woman to blackmail her into having sex with them for 18 months. The bench said the victim’s behavior could be interpreted as a “misadventure stemming from a promiscuous attitude and a voyeuristic mind.”
These court orders work to reinforce the belief that “women’s freedom and modesty have an inversely proportional relationship. The more freedom she has the less modest as per courts she is and ergo, she deserves the treatment meted out to her,” notes Bhushan.
As researcher Miranda Joseph noted, words of law become a way to not only produce and reiterate gender and sexual hierarchies, but also sustain them. Worse, they allow for erasing structural violence from the narrative altogether.
Take the word “ravishing,” which linguist Bryan A. Garner notes carries “romantic connotations” and thus must not be used as a legal equivalent of rape. Ravish means not only “to rape” but also “to fill with ecstasy or delight.” “The term describing the act (of rape) should evoke outrage; it should not be a romantic abstraction, as ravish is.”
“There is a normalization of violence in the language used in these judgments,” Chaudhary points out, noting the way normative ideas get attached to the woman’s body as an object of desire. “And this normalization also obfuscates systemic violence.”
The most telling example comes in the form of the Delhi High Court’s split verdict on marital rape. Justice Shankar argued that conjugal expectation is a two-way street, “where consent is given as part of spousal intimacy, although the will to engage may be absent.” Language has always been a faithful echo of who we are, and in this case, it echoes a desire of Brahmanical patriarchy to demand obedience from women.
Anjana articulates the toll this institutionalized misogyny takes on survivors: “It becomes more and more difficult for women to stand up and say I was raped… It only serves to silence voices that genuinely want to speak up.”
Scholar Uma Chakravarti has written previously of how the honor code also works differently for different women; caste becomes a factor in determining who is an honorable and a “good woman.” Language relies on the understanding that there is a category that needs to be protected. When Jyoti Singh was raped on December 16th, 2012, the Supreme Court awarded death penalty to four men, noting that “even God will not forgive such people.” But exactly 10 years later, the 11 perpetrators who raped Bilkis Bano and murdered her child in 2002 were released by a Gujarat government panel for their “good behavior” and “sanskaar” – words that are code for their Brahmanical identity.
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Further, there is also a disconnect between how the courts speak of punitive measures for crimes against women and children and how they talk about trans people and sex workers. In a paper, Chaudhary looked at Supreme Court judgments from the 1950s related to sex work/prostitution-related laws and found that they were filled with phrases like “fallen victims,” “unfortunate fallen women,” or “unwilling participants and involuntary victims of compelled circumstances.” The images evoked through such language portray the person as a “captive subject of law,” a victim both in need of protection and correction. “[T]he simultaneous yet contradictory attitude of care and compassion on one hand and hostility towards these ‘hypersexual’ subjects, on the other hand, aids in justifying state intervention and also helps in absolving the state of its responsibility to integrate this community in its agenda of social change and growth,” Chaudhary explained.
Rewriting the language of the courts
Legal language and social bias exist within a parasitic relationship. Where does change begin then? One route is to push for language to adapt; the Rajya Sabha, for example, recently decided to drop the use of “Sir” and “Ma’am” in favor of gender-neutral language. Court orders have begun using “persons” instead of the traditional “he/him/himself.”
But Flavia Agnes, a lawyer and scholar, points out that there is a difference between gender neutrality and gender specificity. Neutrality is helpful in cases of pronouns and honorifics. But usage in the context of particular laws requires more meaningful deliberation. Swapping “husband” and “wife” with a neutral term like “spouse” is one such case study. “The roles and responsibilities within the marriage are very different,” Agnes notes. There are very specific acts of violence, she explains, that men perpetrate on women within the framework of marriage. “Here, if we say ‘spouse,’ it takes away the specific gendered roles and their respective oppression. Marriage is not an equal partnership… It’s like comparing apples and oranges.” Words like “spouse” or “partners” may give the illusion of equality, but they don’t take away the discrimination.
Similarly, interchangeably using the word “survivor” for “victim” in cases of rape might be harmful for the person. A victim cannot be made a survivor within the system just by way of language – it requires rehabilitation, mental healthcare, economic independence. And it’s important to note that many do not survive.
Further, marginalization is not built on a singular axis through gender. “It’s not just about sexist language but even casteist language, language that is Islamophobic,” adds Neetika Vishwanath, a lawyer at Project 39A, a criminal justice research center.
The root of discrimination within the language can be traced back to the people in charge of framing these thoughts – mostly men from privileged caste and class backgrounds. “Historically, these are and continue to be upper caste men who are completely ignorant of the harsh realities of the caste system. Unfortunately, there is very little perspective-based training that judges go through. The focus is only on what the law is without any conversation on the social context in which the law operates,” says Vishwanath.
Across India’s 25 high courts, only 12% of judges were women as of 1st August, 2020. Since its inception, the Supreme Court has had only eight judges who are women. There has never been a woman judge who comes from a Dalit or Adivasi community.
The same 2018 study that found SC judges to harbor a prejudicial view of rape victims also found that when there was a female judge on the bench, there was a sharp decline in sexist comments.
But the representation argument reflects a falsity within feminism: that all women are feminists, and all women are conscious of gender, caste, class, and religious bias. Arguably, judges who are women have passed deeply discriminatory statements too. In 2021, it was a female judge who authored the Tarun Tejpal case, taking issue with the woman’s drinking, smoking, consensual sex, sexual history, clothes.
Do we need to have people of diverse genders in the judiciary? Yes. But will that automatically change how justice is delivered? No. “Because by virtue of you being a woman, you automatically do not evolve a sensitivity to the question of gender,” points out Agnes. “It is something that we have to learn because culturally, we are sexist, we are patriarchal.”
Experts do agree on one site of affecting change within the system: gender sensitization training within judicial academies. In theory, all district court judges are supposed to go through two kinds of training: once they join, where they undertake institutional training. The second kind is frequent training that is supposed to happen on different themes such as caste, gender, and mental health.
The kind of language that is used has to do with the people who are writing these judgments – and the way they are socialized. There is consensus that both the frequency and implementation of sessions in judicial academies fall short in terms of actual substance.
The other kind of training that is meant to sensitize judges is functioning in an unregulated space right now. Chaudhary argues “we need to rethink the modalities of not just designing these programs, but also the way we conduct them.” As of now, “they exist as tokenistic gestures, wherein there is some official requirement of having done such an exercise, but it doesn’t translate into bringing about substantial changes.” These are pressing questions: What are the judges being taught, who is designing these curricula, and how well are they being implemented?
Vishwanath’s colleague conducted one such training on mental health among judges, to give them a sense of the question of dignity and rights of persons who are mentally ill. The judges responded with, “why do we need to learn this?” Sensitization then needs to be more than an agenda on a 10-day workshop schedule.
“Casteist, Islamophobic, and patriarchal notions are entrenched in our society and the legal system including the judges who are no exception. Naturally, this impacts the language in the judgments,” Vishwanath says. “Besides, there is no judicial conversation on judgment writing. I don’t think judicial training academies have this as a part of their training curriculum.” Sensitization is incredibly important, because it addresses the fault in articulation.
Apart from internalized bias, this fault in articulation also comes from a lack of originality and critical thinking. According to Vishwanath, patriarchal, sexist, casteist language has existed forever, and the same language is copy-pasted in newer judgments. Fresh judgments are written at the level of trial courts, where a lot of times, they are following a template, where they are citing the same judgment, scholars note.
This mechanization is woven into the system. One may think that this judge is very sexist, Vishwanath points out, but it’s not always a very active act of sexism. Bias is thus templatized, traveling through pages and time, unquestioned more often than not.
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It is therefore critical to reimagine the narratives and language that are taken for granted within the legislature. One such resolution comes by way of Feminist Judgment Projects, a global initiative to rewrite the language in existing judgments from a feminist lens, so as to show it is possible for even an objective institution as the law to take into account marginalized identities. It’s a “what if” exercise that is being carried over in India too by academics, lawyers, and political scientists.
According to Chaudhary, who is a part of the Project, these rewritings serve an instructive purpose. Simply being critical of the bad judgments – bad in terms of flawed reasoning, from a feminist perspective or ones that reiterate patriarchal norms and ideas – isn’t enough. “We envision it to be a pedagogical tool, as well which would be used by students and teachers in the law school practitioners of law, as well as in judicial academies. It is an exercise on how not to write judgments, or how to write judgments in a more inclusive way.” If language is a site of reproducing violence, it can be a site of healing too.
However, by just using the language, what is going to change? Vishwanath points out that “a change in the language of the law can only be a starting point that has to be accompanied by other substantive changes.”
In 1986, the definition of a “prostitute” was amended in law – it went from a “woman” who offered herself promiscuously to include “persons” who did so. But there was hardly any change in the effect of the law, Chaudhary points out. Similarly, the phrase “outraging modesty” was once part of written formal law as section 354 of the Indian Penal Code and was technically removed with the Criminal Law Amendment Act of 2013. But in 2018, Anjana was still compelled to utter it for her report to be processed.
Although it is true that there is a lack of sensitive language, the bigger problem is that the legal system, and the law by extension, was never designed to be inclusive. Everything in the transaction of justice – from the language to evidence-seeking procedures – happens in an elite space, mediated by social capital and resources. The labyrinthine paperwork, time required, resources to hire an attorney and pay them to interpret the legal jargon – this is a maze constructed by people in power, which work to dissuade people from approaching a legal solution. Legal language is also archaic and simply unintelligible to common people, let alone the underserved. “We’re assuming that the subject is well versed with a certain level of understanding to be familiar with these terms,” says Chaudhary.
The limitations of language used within courts and by arbiters of justice speak to the exclusions entrenched within the legal system. These punishing procedures and requirements betray a mechanical apathy, one that can never articulate, much less address, the inequity people face.
“It is easy to go through sexual abuse, and forget about it and overcome it in your private time. That is easier than to go and fight,” Anjana remarks. “That’s how fucked up the system is.”
Changing the language, then, is the beginning of a very long answer, one that may undo how we view justice itself. “Doing away with the language doesn’t mean it sort of goes away from legal language and just how the court approaches cases,” Vishwanath points out.
“We need to really step back and reassess what the law can do,” for its “role as a tool of social change is rather limited.”
Saumya Kalia is an Associate Editor at The Swaddle. Her journalism and writing explore issues of social justice, digital sub-cultures, media ecosystem, literature, and memory as they cut across socio-cultural periods. You can reach her at @Saumya_Kalia.