The “Sexually Provocative” Comment and the Row it Rightly Provoked: In Light of Kerala Court’s Remarks

Introduction 

Recently, an order by a lower court in Kerala has sparked controversy. This case is one of many where women are treated as second-class citizens in society. However, with a legal angle involved, the implications of said remark are far more severe than they would've been otherwise. Gender bias continues to plague the women’s movement because of its justifications by means of a “kernel of truth” approach. However, what is the remark in question? And what are its implications? 

This article will cover the “sexually provocative” comment made by judge S Krishnakumar. 

News 

Very recently, an order issued by a lower sessions court judge, S Krishnakumar in Kozhikode, Kerala said that "The photographs produced along with the bail application by the accused would reveal that the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So, section 354A will not prima facie stand against the accused,". This was the judge’s response to issuing an anticipatory bail to Civic Chandran in the second sexual harassment case registered against him by the Koyilandi police in Kozhikode district.

The court also added that in order to file a maintainable case under section 354A IPC, there must be sufficient evidence to prove that a woman's honor and dignity have been, without reasonable doubt violated. As per the complaint, the accused Civic Chandran sexually harassed a young woman writer, belonging to a scheduled caste at a camp held at Nandi Beach near Moodadi in Kozhikode district in February 2020.

Previously too, a sexual harassment case had been registered against Chandran at the Koyilandi police station. In the first case, the court had earlier granted anticipatory bail to Civic Chandran on the grounds of his old age and apparent health problems. 

Legal: IPC Section 354A 

Section 354A of the Indian Penal Code codifies the grounds of sexual harassment, committed by a man against a woman. The section propounds that: 

A man committing any of the following acts—

physical contact and advances involving unwelcome and explicit sexual overtures; or

a demand or request for sexual favors; or

showing pornography against the will of a woman; or

making sexually colored remarks shall be guilty of the offense of sexual harassment. 

Any man who commits the offense specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with a fine, or with both.

Any man who commits the offense specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, with a fine, or with both.

In layman's terms, this section essentially describes how unwelcome physical contact in pursuit of sexual favors and/or any comments with sexual innuendo, would be considered a form of harassment after gauging the entirety of the situation and its context. If held guilty, the accused is liable to the prescribed punishment, with or without a fine. 

Issue

This comment, coming from an agent of the judiciary, has left women’s rights activists aghast. The absolute sense of male privilege, patriarchy, and sheer ignorance that laces the statement has left the general public feeling disappointed and defeated. 

This remark of a provocative dress being prima facie evidence of inapplicability of the IPC Section 354A has rightfully resulted in a row.

This distorted sense of judgment concerning women’s autonomy has been flagged as “unfortunate and regressive” by The National Commission for Women (NCW). This “observation” regarding the complainant’s clothes will have far-reaching consequences in the context of validating archaic assumptions, where the fault is always that of the women. This narrative also gives a thumbs up to the age-old idea of “men will be men”, something which the women’s revolution has been ardently breaking down, piece by piece. In the grand scheme of things thus, it is one step forward and three steps back. These “colorful’ remarks by judge  S Krishnakumar have given rise to the discourse on judicial stereotyping. 

Judicial Stereotyping 

Judicial decisions have both individual and collective power. These decisions are precedents for judicial evolution and shape even the most intimate details of everyday life. These decisions thus are of paramount importance, especially in a nation like ours, which sustains on democratic pillars. Judicial stereotyping is a deterrent to just judicial decisions. Judicial stereotyping is essentially a generalized preconception that is undertaken by any judicial officer and refers to a generalized stereotype that is more often than not, hostile towards the community in question. 

These predispositions further the already existing biases. For the intents and purposes of this article, my focus will lie on the gender perspective of such stereotyping. 

After going through exhaustive studies and legal jargon, one thing for certain is that law, be it of any land, gives meaning to the concept of a “person”; who a person is, what their interests are, and how best those interests can be protected. For example, in the context of women, it was common practice to deny women the right to vote, which reflected the sex-biased notion that a woman’s opinion added no value to the public discourse. However, as time changed gender dynamics, the law took recourse and corrective measures by changing the narrative of women and their incapacity to exercise their citizenship, and now, in the contemporary, women have voting rights. 

However, through jurisprudential practices that diminish women’s sexual autonomy and continually assign them “traditional” roles, expecting only certain behaviors from them and negating the myriad possible configurations of external factors which would reflect poorly on an individual’s social ideology, the persistence and relevance of laws upholding women’s dignity ironically degrades. When such ancient interpretations of the law and shameful comments rooted in stereotypes, are reproduced and un-questioned by those who impart justice, the very doctrine and structure of the entire institute start weakening from within. 

This “stereotyping” isn't novel. For instance, in the case of Mahmood Farooqui v. State (Govtof NCT Delhi) (CRL.A.944/2016)where the court said that “a feeble may, may be interpreted as yes” in the context of consent. This comment abridged the definition of consent under the 2013 criminal law amendments which defined consent as "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”. This impedes women’s access to justice and prevents equal enjoyment of human rights. They further condemn women to predetermined roles. 

The first case of such stereotyping in which the Indian court was questioned on its underlying misogyny was the infamous case of 1979, in Mathura. This case was a smear on the Indian Judiciary for their inability to provide relief to a rape victim. In this case, two policemen were acquitted of charges of rape by relying on factors such as the absence of ‘marks of injury’ and ‘habituation with sex’. After the judgment, the legality of “consent” and its scope were discussed, this was thus (ironically enough) a landmark case in the mobilization of women’s rights and their legal recognition.  

In 2003, Section 155(4) of the Indian Evidence Act which provided that the immoral character (sexual history) of the victim would be factored in deciding a rape case was repealed. So, theoretically, changes have been made to render laws reinforcing rape myths and sexual stereotypes, void, however, a floor test would say differently. While extensively dissecting this topic, it is also pertinent to know that judicial stereotyping is antithetical to International Human Rights Law, which is an instrument catalyzing legal development, revered globally. 

It is clear that India through its stereotypical judicial pronouncements has failed to fulfill its obligations under International law to address and curb institutional gender bias. Moreover, there is an absence of any law in India that specifically addresses judicial stereotyping.

Such distasteful comments not only undermine the authority of these courts, by being in contravention of the rules of neutrality and natural justice but they also institutionalize and validate patriarchy and promote an uncomfortable, unsafe environment where women cannot thrive. Why is it that women are subjected to disproportionate scrutiny for “implicating innocent men”? This scrutiny is further protected when the court of law makes such remarks. 

Challenging the Bias

There have been instances that can be credited to debunking these myths, in the courts of law. It is thus important to identify, acknowledge and highlight the judgments that challenge these stereotypes. 

The court for the first time in Anuj Garg v. Hotel Association of India (AIR 2008 SC 663, (2008) 3 SCC 1 ) applied the ‘anti-stereotyping principle’ to sex discrimination claims. The Bench held that the impugned legislation suffered "from incurable fixations of stereotype morality and conception of sexual role."  Then, in 2018, the Supreme Court of India stated rather bluntly that a woman’s profession is no basis for the presumption of free consent. The Court said that in the case that a victim is a sex worker, the accused will be tried as in any other rape case because the woman’s profession is no indication of invitation of rape. Justice Sikri in NALSA v. Union of India (AIR 2014 SC 1863 )questioned the stereotypical generalization of binary gender and Justice Chandrachud in Secretary, Ministry of Defencev. Babita Puniya(Civil Appeal No. 1210 of 2020) challenged gender roles which assume that domestic obligations rest on women. 

Even in the case of AparnaBhat v. State of Madhya Pradesh (Criminal appeal no. 329 of 2021) the Supreme Court gave a categorical precedent against the practicing of judicial stereotyping plaguing the principles of natural justice. The court recognized the injurious nature of these judgments and advised against their issuance by simply practicing due diligence and undertaking an objective approach to the case. 

Even with such deterrents, there is evidently an urgent need to recognize that the use of such negative stereotypes by the Judges themselves is a form of unwelcome discrimination. Furthermore, for the citizens to fully trust the justice and not denounce its judgments and remarks, riddance from gender bias is paramount. The aspect of representation in the judiciary thus is essential and it is imperative to have the representation of intersectional voices and ensure diversity in a male-dominated judiciary.

Conclusion 

It is obvious that such stereotyping infringes on the impartiality and integrity of the justice system. This ultimately leads to the re-victimization of complainants, causing a miscarriage of justice for it goes absolutely against the statutes of law. These behaviors should thus be penalized. Judicial decisions establish precedents that greatly influence the public debate. Judicial decisions play an especially important role in the characterization of women. Judges and adjudicators have the ability to bring the right to equality into reality. For that reason, they must make sure that in the process of interpreting and applying the law, they do not rely on prejudicial notions regarding how persons of a given sex, gender, or sexual orientation “are,” or how such persons should behave.