How the relationship between law and society shapes assumptions about femininity

What the new gender-sensitivity guidelines say

Earlier this month, the Supreme Court released a new report urging trial court judges to adopt gender-sensitive courtroom practices. Drafted by an expert committee headed by former Supreme Court judge and Director of the National Judicial Academy (NJA) in Bhopal, Justice Aniruddha Bose, the new guidelines report calls for sensitivity and compassion in writing judgements. 

As such, a glossary has been curated after analysing 125 trial court judgments. It includes suggestions such as replacing the phrase “helpless woman” or “female” with “survivor” or “complainant”. Similarly, the phrase “lost her chastity” can be replaced with “the survivor’s bodily autonomy was violated”.

The report also calls for putting an end to all forms of victim-blaming, adding more victim and witness protection measures, providing pre-trial counselling for victims to alleviate anxiety and build their confidence, and having in-camera trials. These new guidelines, however, raise a larger question: are these guidelines on judicial language and courtroom conduct sufficient to bring about real and transformative change? 

The 2023 Handbook on Combating Gender Stereotypes also contained glossaries of terms to avoid and sought to dismantle assumptions about women’s supposedly inherent characteristics, such as the idea that women are overly emotional or that all women want to have children. But gender insensitivity has persisted in legal spaces. What then is the solution? 

Relationship between law and society

As mentioned earlier, judicial practices are embedded in the broader social structures within which gender is produced and reproduced. It is, therefore, important to understand that law is an essential part of how society is formed and is shaped by the social relations within which it operates.

In her pioneering book The Trouble with Marriage: Feminists Confront Law and Violence in India (2015), Srimati Basu analyses the everyday experience of women in legal institutions in cases of marital conflict.

She argues that alternative dispute resolution, originally designed to empower women in a less adversarial legal environment, has created new subjectivities. They reinforce oppressive socioeconomic norms that do not leave women better off, either individually or collectively. Law, thus, Basu argues, is a strategy and not a solution. 

Kalpana Kannabiran’s edited collection, Women and Law: Critical Feminist Perspectives (2014), shows how Indian women continue to be legally vulnerable. The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case can help elaborate this. 

Law as a social experience

In April 1978, Shah Bano filed a claim for maintenance from her divorced husband under Section 123 of the Code of Criminal Procedure, 1973. Ahmad Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce. 

After detailed arguments, the Supreme Court of India in 1985 ruled in Shah Bano’s favour, upholding the decision of the High Court that gave orders for maintenance to Shah Bano under CrPC. But the judgement triggered intense political debate and the Muslim Women (Protection on Divorce Act), 1986 was passed. The new law stated that the husband had to pay maintenance only during the iddat period after divorce.

It shifted the financial responsibility to relatives or the state Waqf board if a woman cannot provide for herself. The Supreme Court subsequently reinterpreted the Act in the Danial Latifi and Anr versus Union of India (2001) case to require the husband to make a reasonable and fair provision for the divorced woman’s future.

Such accounts of women’s experiences in courtrooms help understand how law is experienced through institutions, relationships, and social hierarchies that are already gendered.

Employing intersectional lens 

The law is socially constructed and practised, and affects men and women differently. This is further complicated when the law is examined through an intersectional lens. In Violence, Gender and the State: ‘Not Just’ A Legal Analysis (2023), Saumya Uma demonstrates how identities cutting across caste, class, religion, and gender shape legal experiences, particularly of women. 

The Bhanwari Devi rape case in 1992 can be seen as an example. Bhanwari Devi, a saathin or village-level worker in Bateri in Rajasthan’s Bassi tehsil, was gang raped by men from dominant castes for preventing a child marriage in their family as part of her work. But the trial court disbelieved that upper-caste men would defile themselves by raping a lower-caste woman.

Although the case led to the Supreme Court framing the Vishaka guidelines to deal with complaints of sexual harassment at the workplace, it also underlined the difficulties faced by a woman of marginal group to seek justice. 

Dismantling patriarchal assumptions about women 

Sociological and anthropological works also illustrate how femininity is constructed through these gendered social formations. Women are expected to possess characteristics such as honour, modesty and chastity. This construction of femininity is a continuous and complex process. And such constructions often enter judicial reasoning, as evident in Bhanwari Devi’s case, as well as in the Mathura rape case of 1979, and Tarun Tejpal’s case.  

In the Bhanwari Devi case, the trial court disbelieved her. Mathura was held to be “habituated to sexual intercourse” and not resisting her rapists. The survivor in Tejpal’s case was disbelieved by the trial court for not behaving as a survivor of sexual assault should. 

But in Tarun Tejpal’s case, the High Court of Bombay at Goa underlined that notions of a perfect victim are a myth, as it overturned the trial court ruling that acquitted journalist and Tehelka’s former editor-in-chief Tarun Tejpal and sentenced him to ten years in jail on 6 August, 2026. The court underlined that neither the Court nor the Respondent can decide how she should react or process her trauma.

Such observations by courts, alongside the recent guidelines for adopting gender-sensitive, courtroom practices, suggest a shift away from patriarchal understanding of women and gender relations.

Social morality and constitutional morality 

Nonetheless, it remains difficult for women to exercise agency in various other social institutions. They are rarely allowed to make decisions in relation to marriage, family, and kinship. For instance, the latest round of the National Family Health Survey 2023–24 (NFHS-6) shows that the contraceptive burden remains skewed towards women. It indicates the limited reproductive agency for women. 

Constitutional morality, rooted in rights, autonomy, and dignity, can come into conflict with social morality, norms, expectations, and practices through which families and communities regulate women’s behaviour. Social morality, however, is not homogeneous. It is produced through overlapping familial, community, caste, religious, and sexual ideas. 

In various cases, courts had to intervene to affirm an adult woman’s right to marry a person of her choice. For instance, in the Lata Singh versus State of Uttar Pradesh (2006) case, the Supreme Court affirmed an adult woman’s right to marry a person of her choice. Similarly, in the Shakti Vahini versus Union of India (2018), the apex court ruled that when two consenting adults decide to get married, family, caste, or community assemblies like khap panchayats become irrelevant. 

Such cases illustrate a continuing tension between what is regarded as constitutionally legitimate and what society or community finds acceptable. Despite its limitations, the judiciary has continuously intervened to make women’s lives better. And the new guidelines are therefore a welcome intervention. But their transformative potential will hinge on how effectively they are implemented in practice. 

Post read questions

1. How has the Indian judiciary expanded the constitutional understanding of women’s autonomy, dignity and decisional freedom? Discuss with suitable case laws.

2. Gender-sensitive judicial language is necessary but is it sufficient for achieving gender justice? Explain.

3. Family and community can act both as sources of social support and as institutions regulating women’s autonomy. Illustrate with examples.

4. The notion of the “perfect victim” reflects deeper societal expectations about femininity, sexuality and trauma. Discuss its implications for access to justice.

5. How do caste, class, religion and gender intersect to shape women’s experiences of law and justice in India? Illustrate with suitable examples.

(Rituparna Patgiri is an Assistant Professor at the Indian Institute of Technology (IIT), Guwahati.) 

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