Rejecting handbook on gender stereotypes, Supreme Court has spurned opportunity to combat them

The Supreme Court’s “unease” with the 2023 Handbook on Combating Gender Stereotypes is reportedly driving its push to frame new guidelines, but this risks undoing decades of progressive jurisprudence on gender justice and reflects an institutional discomfort with confronting gendered and caste-based power structures in judicial reasoning.

The handbook, intended as a tool to help judges identify and avoid stereotypes that frequently appear in judicial reasoning, was released in August 2023 during the tenure of Chief Justice DY Chandrachud.

On February 10, the Supreme Court issued an order to form a committee of experts and frame new guidelines. During the hearing, Chief Justice Surya Kant described the handbook as “too Harvard-oriented”. This criticism is misplaced.

A month on, a report in The Indian Express, published on March 9, indicates that the handbook’s description of the use of sexual violence to maintain caste dominance appears to be among the factors that sparked a push to reexamine the guidelines.

The report, citing sources within the court, points to two main areas of concern among some judges. These are: first, the handbook’s discussion of gender stereotypes includes an illustrative list of assumptions often applied to men and women in cases involving sex and sexual violence, along with explanations of why such assumptions are flawed.

Second, the handbook references stereotypes surrounding caste-based sexual violence, including that “dominant caste men do not want to engage in sexual relations with women from oppressed castes”.

The handbook notes that rape and sexual violence have historically been used as tools of social control and domination, particularly to reinforce caste hierarchies. According to the Indian Express, some judges were concerned that such sweeping generalisations risk “painting targets on entire communities”.

But, as the handbook explains, these stereotypes are drawn directly from the language and reasoning found in the judgments of the Supreme Court, High Courts and District Courts.

By compiling and analysing these examples, the handbook simply holds up a mirror to the legal system. It demonstrates how assumptions about the behaviour of a “respectable” woman, the credibility of survivors of sexual violence or the supposed improbability of certain forms of violence have found their way into judicial discourse and led to unjust outcomes.

Highlighting the patterns

Critiquing stereotypes in judicial decisions is a necessary step toward ensuring that courts do not reproduce the social prejudices that can shape legal reasoning. Indeed, identifying and questioning such stereotypes has long been recognised as a marker of progress in gender-sensitive jurisprudence. The handbook merely highlights these patterns so that judges can consciously avoid repeating them.

Similarly, the example relating to caste-based sexual violence reflects reasoning that has appeared in a real judicial decision. As the handbook notes, this was highlighted from the trial court’s judgment in the Bhanwari Devi gang rape case, where the accused were acquitted in 1995.

Among the reasons cited by the court was the assumption that oppressor-caste men would not rape a lower-caste woman. This reasoning starkly illustrated how caste prejudice could shape judicial decision-making.

Bhanwari Devi, a grassroots worker with the Rajasthan government’s Women’s Development Programme, was gang-raped in 1992 after she attempted to stop a child marriage in her village. The trial court’s acquittal of the accused and the reasoning it employed generated outrage and ultimately led to the landmark Vishaka ruling in which the Supreme Court laid down the first binding guidelines on workplace sexual harassment.

Thus, the handbook’s discussion on caste stereotypes in sexual violence cases does not “paint targets” on communities. Moreover, sociological and feminist scholarship has consistently demonstrated how sexual violence is often used as a tool of social control against marginalised communities.

In Castes in India, BR Ambedkar had theorised how control over a woman’s sexuality helps maintain the caste system by regulating marriage. The patterns that emerge in caste-based gender violence cases prove this. Recognising this structural reality is an attempt to understand how power operates in society, and does not vilify any community.

The discomfort with this analysis also shows the judiciary’s misplaced priorities. The appeal in the Bhanwari Devi case that prompted this discussion has been pending before the Rajasthan High Court for nearly three decades. The case has been unheard for several years. Yet, the judiciary found time to express “unease” about institutional critiques of judicial reasoning, instead of the delay in resolving such appeals, raising deeper questions about institutional priorities. If anything should cause institutional discomfort, it ought to be the continued denial of timely justice in cases of gender and caste violence.

This “unease” is also difficult to reconcile with the structure of the Indian Constitution. The Constitution is built on the recognition that Indian society is marked by deeply entrenched structures of power, particularly those rooted in caste and gender, and that the law must actively work to dismantle them.

Invisible hierarchies

When scholarship, handbooks, or judicial training materials identify patterns within these systems, they are attempting to illuminate the structural dynamics through which power operates in society. Ignoring these patterns merely allows entrenched hierarchies to remain invisible within legal reasoning.

Educational tools that encourage judges to reflect critically on social realities are not ideological or partisan exercises. They are essential to prevent the law from unconsciously reproducing prejudice.

Without conscious reflection, stereotypes and assumptions embedded in society can easily find their way into legal judgments. A justice system that is unwilling to confront the social structures within which crimes occur risks retreating into an ivory-tower, detached from the society it claims to serve.

Anurag Bhaskar is a faculty at OP Jindal Global University, Sonipat, and a visiting professor of law at NALSAR, Hyderabad. He was a part of the team that prepared the Supreme Court’s Gender Handbook in 2023.