Psychology Contribute to Gender Bias Against Women
ABSTRACT
This essay examines the key question: how far do Indian court judges’ stereotypes and interpretative traditions generate an ‘illusion of justice’ for women, even in the face of progressive law? Despite the apparently strong framework for women’s rights under India’s constitutional protections under Articles 14, 15, and 21, as well as legislative reforms including the Criminal Law (Amendment) Act, 2013, the Protection of Children from Sexual Offences Act, 2012, and the POSH Act, 2013, these are often undercut through interpretative discrimination. Judicial stereotyping—exhibited in presumptions regarding women’s morality, believability, or domestic role—undermines these safeguards and generates patriarchal hierarchies in the courtroom. Recalling the lessons of legal realism, the study places judicial decision-making in its wider social and cultural context, revealing how “law in action” differs from “law in books.” This article argues that legal reform is bound to fail if it does not tackle judicial attitudes via gender-sensitivity training, institutional accountability, and wider cultural change. Without these actions, women’s rights are a dream, and justice is likely to be an illusion instead of a lived experience.
KEYWORDS
Gender justice; Judicial stereotyping; Women’s rights; Indian judiciary; Feminist jurisprudence; Legal reform; Patriarchy.
INTRODUCTION
In 2008, Marie Adler (pseudonym), a young woman in Washington, reported being raped at knifepoint. Instead of protection, she was disbelieved by police, family, and friends. Minor inconsistencies in her testimony—typical for trauma survivors—were treated as lies, leading her to retract her statement and face charges of false reporting. Years after, the actual culprit was arrested, exonerating her.¹Adler’s experience, subsequently chronicled in the Pulitzer Prize-winning An Unbelievable Story of Rape, represents how justice mechanisms often try survivors while villains go unpunished. Marie Adler’s experience in the United States is not a lone outlier; it reflects trends seen in jurisdictions, including India.
The Indian Constitution provides for equality, dignity, and freedom under Articles 14, 15, and 21. In order to achieve these rights, Parliament has introduced progressive legislation: the Criminal Law (Amendment) Act, 2013, broadening definitions of sexual assault; the POCSO Act, 2012, to protect children; and the POSH Act, 2013, to counter workplace harassment. Taken together, they form a robust legal architecture.
However, their utility is commonly undermined by judicial interpretation and ingrained stereotypes. In Tukaram v. State of Maharashtra (1979), policemen charged with custodial rape were acquitted by the Supreme Court, assuming that the survivor’s “habituation to sex” indicated consent. In State v. Mohd. Farooqi (2017), the Delhi High Court downplayed allegations of marital rape as “normal conjugal expectations.” These judgments perpetuate patriarchal norms that deny women autonomy.
There are progressive judgments too. In X v. State of Maharashtra (2019), the Court upheld reproductive autonomy, and in X v. Principal Secretary, Health and Family Welfare Department, Delhi NCT (2022), rights around abortion were granted to unmarried women. These demonstrate the judiciary’s capability to move towards gender justice, but such advancement is still unequal.
This paper contends that law alone cannot ensure substantive justice. Short of gender-sensitivity training of judges, trauma-informed court proceedings, accessible legal aid, and breaking down social barriers, rights remain symbolic. Judicial stereotyping maintains an “illusion of justice”—a system safeguarding in appearance but prejudiced in reality. Radical Reform must extend beyond legislation to transform institutional culture so that women’s constitutional promise of equality is really attained.
LITERATURE REVIEW
Scholarship regarding gender and law in India repeatedly critiques the judiciary as not a dispassionate mediator but as one whose interpretations serve to reinforce patriarchal norms. Flavia Agnes, in Law and Gender Inequality: The Politics of Women’s Rights in India (1999), illustrates through divorce and maintenance cases that judges habitually enforce patriarchal values. She demonstrates how judicial analysis tends to mirror cultural assumptions regarding what women owe in marriage, thus constraining the possibility of transformation posed by progressive legislation. In the same vein, Indira Jaising, in her classic treatise Gender and Human Rights (2004), points to the way constitutional assurances under Articles 14, 15, and 21 have been narrowly interpreted. Jaising contends that rather than promoting equality, courts tend to reinforce prevailing hierarchies, demonstrating how rights on paper can be compromised through limiting judicial interpretation.
Ratna Kapur and Brenda Cossman, in Subversive Sites: Feminist Engagements with Law in India (1996), take this criticism further by demonstrating how family law inscribes women into positions of dependency in the guise of “protection.” Their work demonstrates how protective provisions are themselves oppressive when run through patriarchal judicial mindsets, reinforcing stereotypes like the “obedient wife” or “sacrificial mother.”
Global feminist theory, especially Catharine MacKinnon in Toward a Feminist Theory of the State (1989), places this issue within a worldwide trend. MacKinnon contends law is not neutral but a tool of male supremacy, which constructs norms regarding sexuality and family. Transposed to India, this model accounts for judicial hesitation to criminalize rape within marriage and minimization of domestic violence, which exposes the ways cultural and legal power hierarchies align to snuff out women’s agency.
Mrinal Satish, in Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (2016), presents empirical evidence of rape case stereotyping. He demonstrates how courts minimize credibility to women’s sexual past, attire, or small inconsistencies in testimony—common consequences of trauma read as falsehood. His research displays how judicial discretion, when based on patriarchal “common sense,” generates discriminatory results.
Together, these five pieces—Agnes, Jaising, Kapur and Cossman, MacKinnon, and Satish—note a paradox at the heart of Indian legal conversation: while law has emancipatory promise, its fulfillment is contingent on altering interpretive practices. Left unchecked, judicial stereotyping through the courts may lead to only an appearance of justice.
METHODOLOGY
.This study employs a qualitative research method. It examines constitutional provisions and landmark cases. The chosen cases are contrasted in terms of judicial language, ubiquitous stereotypes, and recognizable patterns in handling women litigants. This methodology was preferable because one is able to employ it in an effort to integrate legal analysis and socio-legal contexts, thereby making total understanding a possibility. However, the drawbacks include qualitative interpretation subjectivity and inability to access internal judicial opinion. Additionally, while the sample of case law and interviews is not representative of all of the judiciary, they nevertheless indicate significant trends that are critical for legal and policy reform.
JUDICI STEREOTYPING OF WOMEN
The efficacy of constitutional and legislative protections for women in India is frequently undermined by judicial bias and patriarchal stereotypes.Judges do not serve as objective conduit for conveying legislative meaning but as “active builders” of law, screening rights through prevailing cultural norms. True to the Realist tradition in jurisprudence, this implies that judicial decision-making is informed as much by extra-legal factors—morality, gender roles, cultural expectations—albeit statutory text. Such bias produces what can only be termed an illusion of justice, a system defensive in appearance but discriminatory in effect. The gap is especially visible in the disconnect between increasing crimes against women—445,256 committed in 2022, as per NCRB—and flat conviction rates for rape at 27–28%.This chapter explores judicial bias in constitutional law, criminal law, family law, and evidence law.
- Constitutional Guarantees and Gender Bias
The Indian Constitution institutionalizes equality before law (Article 14), forbids discrimination (Article 15), and safeguards life and dignity (Article 21). But judicial stereotyping has consistently undermined these assurances. The Bhanwari Devi case is representative. A lower-caste grassroots worker was gang-raped when she refused to allow child marriage, but the trial court acquitted the accused on the grounds that men of their caste “would never” do such a thing. Although the Supreme Court later reacted with Vishaka v State of Rajasthan (1997), which cast binding workplace harassment guidelines, the initial acquittal illustrated how cultural presumptions could efface constitutional protections. Likewise, in Tukaram v State of Maharashtra (1979)—the Mathura rape case —the Court acquitted police constables charged with custodial rape on the basis that the survivor’s failure to offer violent resistance was an assent to intercourse. In attributing submission to assent, the Court took away the survivor’s dignity under Article 21. There were legislative responses to public outcry, but the judgment remains a paradigm example of how patriarchal presumption seeps into constitutional decision-making. These cases demonstrate how ideals of the “chaste woman” or “obedient wife” stand in for constitutional equality, undermining India’s Constitution’s promise of transformation.
II.Consent and the “Ideal Victim”
In Raja v State of Karnataka (2016), the High Court acquitted the accused of rape on the basis that the survivor had not acted like an “ordinary victim,” as she had not uttered a cry for help and had no major injuries. Similarly, in Rakesh B v State of Karnataka (2020), delay in reporting was used as evidence of fabrication. Similarly in Sudhansu Sekhar Sahoo v State of Orissa (2002), the Orissa High Court highlighted lack of injuries and inconsistency in the survivor’s testimony to acquit the accused.Such reasoning exhibits the stereotype of the “ideal victim”—the one who resists forcefully, reports at once, and exhibits visible injuries—disregarding the psychological facts of trauma, where silence, delay, and hesitation are the norms.The Delhi High Court’s decision in Mahmood Farooqui v NCT of Delhi (2017) embodied this bias by advising that “a feeble no may not always mean no,” thereby diminishing the survivor’s autonomy and reinforcing the fallacy that refusal has to be loud, forceful, and sustained.
III.Marriage, Honour, and Sexual Violence
Stereotypes about family honour and marital obligation also inform judicial thinking. In Mohit Subhash Chavan v State of Maharashtra (2021), bail was granted subject to the condition that the survivor agreed to marry the accused, perpetuating the patriarchal notion that marriage would wipe out the trauma of rape.Judicial stereotyping can sometimes take symbolic forms. In Vikram v State of Madhya Pradesh (2020), bail was granted on the condition that the accused permit the survivor to put a Rakhi on his wrist.It reduced sexual violence to something insignificant by redefining it as a family tie, disregarding the trauma of the survivor. It took public backlash for the Supreme Court to issue guidelines discouraging such humiliating conditions
Marital rape is still the most glaring instance of judicial reluctance. In Independent Thought v Union of India (2017), the Supreme Court invalidated the marital rape exception for wives between 15 and 18 years but did not extend protection to adult women, invoking legislative prerogative. In RIT Foundation v Union of India (2022), the Delhi High Court rendered a divided verdict, with one judge affirming the marital rape exception on cultural grounds. By treating marriage as a protection against sexual assault, courts legitimize the stereotype of women’s continuous sexual availability to husbands.
IV. Family Law and Patriarchal Norms
Family law rulings further reveal how stereotypes of the “ideal wife” and “dependent woman” pervade judicial thought.
1.Residence and depedency
In S.R. Batra v Taruna Batra (2007), the Supreme Court decided that a wife had no right to reside in in-laws’ property, limiting the scope of “shared household” under the Domestic Violence Act. The ruling favored ownership over women’s right to shelter, as well as perpetuating the stereotype that women’s residence rights stem solely from marriage.
2.The “Ideal Wife”
Courts have always commended submissive wifehood models. The Bombay High Court in one judgement equated the ideal wife to “Goddess Sita, obeying even forests,” thereby equating obedience and sacrifice as requirements of law. The Delhi High Court has, in various cases, held that failure to maintain rituals such as the Karwa Chauth fast as cruelty and cause for divorce. Along with this, insistence by a wife on living apart from in-laws was labeled cruelty, unless justified by abuse, maintaining patriarchal standards of joint family habitation. The Jharkhand High Court denied maintenance to a woman who didn’t want to share a home with her aging mother-in-law, invoking scripture and “fundamental duty” toward serving the elderly.
In this instance, the court effectively enshrined patriarchal expectations into legal mandates.Judges have also idealized obedient wifehood.In Vishwanath Agrawal v Sarla Vishwanath Agrawal (2012), the Supreme Court ruled that the wife’s insistence on autonomy and complaints against her husband were cruelty, and so strengthened the stereotype that obedience, submissiveness are what is expected of a wife, and assertiveness is a failure in marriage.
3.Custody and Identity
Custody disputes often replicate these biases. Section 6(a) Hindu Minority and Guardianship Act reserves the position of “natural guardian” to the father and relegates mothers to second place. While courts occasionally override this presumption, the statute law and hence the legal position mirrors institutionalised patriarchy. The Kerala High Court recently had to reverse a Family Court order refusing custody to a mother on account of loose moral “ because she identified herself on a dating app, highlighting the continuation of sexist assumptions in family law determination.
IV. Judicial Bias in Evidence Law
Evidence law has long been stereotyped. Until reforms, Sections 146 and 155 of the Indian Evidence Act provided for cross-examination of survivors of rape regarding their sexual history in an attempt to impeach credibility. Although amendments restricted such interrogation, courts would continue to routinely allow probing questions. In State of Punjab v Gurmit Singh (1996), the Supreme Court ruled that the evidence of a survivor is not required to be corroborated and her character cannot be put on record. Trial courts, however, have routinely disregarded this instruction and permitted defence attorneys to ask for the inference that prior sexual experience ruins one’s credibility. Statutory presumptions also have been diluted. Section 113A, intended to encompass abetment of suicide of wives, has been strictly interpreted. Section 113B, dealing with dowry deaths, has also been stifled by judicial insistence on proximate and contemporaneous proof of harassment, effectively negating the legislature’s attempt to address systemic abuse.
These cases highlight an uncomfortable fact: in spite of constitutional protections and legislative changes, institutional obstacles—judicial stereotypes, insensitive police, and procedural delays—persist in withholding substantive justice from women.
Reason for Judicial stereotyping
Judicial stereotyping continues to be a strong hindrance to the equality of women before the law in India. This examination notes the prime determinants of stereotyping—victim-blaming precedents, gender disbalance in the judiciary, economic disparity, social stigma, obstacles to justice and legal illiteracy,
1.Victim-Blaming Precedents
Two representative cases illustrate the consolidation of victim-blaming in Indian courts. In Tukaram v State of Maharashtra (1979), police officers raped Mathura, a 16-year-old tribal girl, while in custody. The Supreme Court acquitted the accused, arguing that since there were no injuries and “lack of resistance,” this means consent. Public outcry prompted the Criminal Law (Second Amendment) Act, 1983, which toughened custodial rape laws. Likewise, in Smt Bhanwari Devi v State of Rajasthan (1996), a Dalit social activist was gang-raped for resisting child marriage. The High Court rejected the case on the grounds that upper-caste men would not have raped a lower-caste woman. The denial of justice led to the Vishaka Guidelines (1997) and then the Sexual Harassment of Women at Workplace Act, 2013. The above cases explain how courts replaced stereotypes with credibility and entrenched the myth of the “ideal victim.”
2.Underrepresentation of Women in the Judiciary
India’s higher judiciary continues to be dominated by males. To date, in 2024, women made up just 6% of the Supreme Court bench and 14.1% of High Court judges. Just eleven women have ever been on the Supreme Court—4% of all appointees in 75 years. Women judges serve an average of just 4.5 years, compared with longer tenures for men. Domestic duties, absence of institutional support, and priorities of the male-dominated Collegium limit women’s progress even further. This underrepresentation curtails interpretive diversity and sustains unconscious bias in sectors such as sexual violence and workplace discrimination, furthering patriarchal logic in the culture of the judiciary.
3.Economic Determinants
Economic inequality also curtails women’s access to justice. India has only closed 36.7% of its economic participation gap, as per the Global Gender Gap Report 2023. The Periodic Labour Force Survey (2022-23) documents female labour force participation at 37%, against a rate of 79.5% for males, leaving women financially reliant on male family members in many cases. This discourages litigation, especially in long or expensive cases like domestic violence or property. Judges, in these realities, tend to trivialise economic abuse or grant token settlements, thereby reinforcing images of women as dependent, not autonomous rights-holders.
4.Social Stigma
Social stigma of women’s sexuality and autonomy underlies reporting and adjudication of offenses. Dishonour, exclusion by community, or family disintegration all deter survivors from making complaints. Even when they are reported, patriarchal norms have been upheld by courts, making refusal to carry out rituals such as Karwa Chauth or hesitance to cohabit with in-laws “cruelty.” Statistics by the National Judicial Data Grid (2021) reveal that women accounted for only 8.6% of total filed cases and a mere 6.07% of criminal cases, demonstrating systemic impediments caused by stigma and social conditioning.
5.Barriers to Legal Access
Geographical and procedural hurdles widen exclusion. Courts are clustered in metropolitan areas, posing insurmountable travel and safety issues to rural women. Male-structured and intimidating courtrooms discourage attendance, and procedural formalities—affidavits, adjournments, technical submissions—also distance survivors.Despite the Legal Services Authorities Act 1987, providing free legal aid, awareness and accessibility are low. Judges tend to urge compromise in family conflicts, addressing violence as a personal issue and not a constitutional violation, reinforcing reconciliation stereotypes over redress.
6.Lack of Knowledge of Rights Illiteracy
Lack of Knowledge of Rights Illiteracy in law in law is ubiquitous, especially among oppressed women. Most are not even aware of protective laws like the Domestic Violence Act 2005 or the POSH Act 2013. Technical legal jargon and language hindrances limit understanding, coupled with women’s silence being taken as assent. While there are legal literacy campaigns, their reach is limited, and structural ignorance ensures that women cannot claim constitutional rights.
7. Adversarial Procedure and Judicial Common Sense
Above these structural and social obstacles, the adversarial dynamics of Indian litigation
perpetuate stereotypes. Women typically find themselves facing better-equipped male
relatives or institutions, and their claims are constructed as exaggerations or strategies.
Judges, who have not had institutional gender-sensitivity training, frequently accept these
characterizations. Without structured contact with feminist jurisprudence, judges fall back
upon “common sense” based on patriarchal socialisation. Relying upon inherited cultural
assumptions in place of constitutional norms reproduces stereotypes in legal arguments.
Efforts to Improve Judicial Attitudes
As much as these structural deficits exist, the judiciary has continued to evidence positive interventions towards stereotyping. In Joseph Shine v Union of India (2018), the Supreme Court invalidated laws on adultery for objectifying women as property. In State of Chhattisgarh v Shailendra Kumar Rai (2022), the Court prohibited the degrading “two-finger test.” Likewise, State of Punjab v Gurmit Singh (1996) emphasized that women’s testimony cannot be presumptively suspect, whereas State of UP v Chhotey Lal (2011) made it clear that lack of injury is not disproving of assault. The Handbook on Countering Gender Stereotypes (2023) codified language change, using such words as “homemaker” instead of “housewife.” The Supreme Court has also made observations about delay in filing reports of sexual violence. In State of Himachal Pradesh v. Gian Chand (2001)[ State of Himachal Pradesh v Gian Chand AIR 2001 SC 2075], the Court acknowledged that victims don’t report forthwith as they are afraid to report FIRs in case of societal pressure, fear of losing honor, or complexities in the family. Therefore, delay in reporting won’t preclude the testimony of the victim automatically but must be judged in reference to their actual life. In taking such decisions, the judiciary is actually intervening constructively against difficult judicial stereotyping. Evolving of legal language and judicial attitudes regarding gender roles, sexual violence, and women’s autonomy signals progress toward a more just and equitable legal system striving to make the legal system fairer and more equitable.
REFORMS TO IMPROVE ACCESSIBILITY AND AWARENESS
Securing women’s effective access to justice in India requires extensive reforms in several areas. Although significant gains have been made, persisting issues require specifically crafted interventions to address knowledge gaps.
- IMPROVING POLICE RESPONSIVENESS AND GENDER SENSITIVITY
Despite constitutional guarantees of equality, the deep-seated cultural prejudices continue to influence women’s interactions with police. Obligatory, periodic gender sensitivity and trauma training of judges, court staff, and police personnel is imperative.This training must be standardized and include simulated role-playing to effectively handle gender-based cases. In addition, building up the chain of women-exclusive police stations and ensuring that every key district has a special help desk handled by trained women police officers would be a welcoming spot for women to report crime and receive aid.
- REVAMPING JUDICIAL PROCESS
Establishing Fast-Track Special Courts (FTSCs) was to hasten trials in sex crimes. This notwithstanding, only 752 FTSCs were operational as of August 2023, falling short of the initial target of 1,023 by March 2021. This shortfall is brought about mainly due to lack of state government-appointed judges. To address these issues, there has to be an overall scheme to increase the number of specialized judges and judicial personnel trained in gender issues, hold separate funds for technological upgradation, and enforce stringent timelines for case disposal with an oversight by an autonomous body.
- LEGAL AID AND AWARENESS
Legal aid remains a significant hindrance for the majority of women, especially in rural and disadvantaged areas. Mobile legal clinics and outreach schemes can bridge this gap, providing free legal consultation, filing of complaints, and education about legal rights. For such efforts to be sustainable, they need an alliance among the government, NGOs, and legal agencies. In addition, developing digital and multilingual legal platforms with accessible resources, AI-based chatbots for legal matters, and online filing systems with security can empower women to access the legal system effectively.
- OVERCOMING SOCIETAL AND CULTURAL BARRIERS
Societal attitudes rooted in traditions continue to act as obstacles to women’s access to justice. Designing integrated one-stop centers combining legal aid and counseling, medical services, and vocational training can provide comprehensive support to survivors. These centers must be equipped with in-house legal counselors, medical and psychological services, and economic rehabilitation support. Furthermore, applying restorative justice and mediation models for gender-based cases can reduce the adversarial burden for survivors, but only if strict protection for their rights and dignity is instituted. Financial aid and incentive schemes, such as compensation of legal expenses and financial support for survivors during legal processes, would lower economic barriers to justice.
CONCLUSION
Even with India’s robust legal system for safeguarding women’s rights, access to justice for women is fraught with challenges. The procedure-bound and patriarchal-normed judicial system often compromises on gender-sensitive justice. The Realist School of jurisprudence provides a window into how the laws, while being neutral in tone, are implemented by actors whose own biases influence the outcomes. The cases discussed—spanning from Mathura to Tarun Tejpal—highlight the victim-blaming culture, judicial stereotyping, and the under-representation of women in decision-making positions. Women from marginalized groups—rural, Dalit, Adivasi, and economically weaker sections—are suffering from several handicaps in the shape of unawareness, economic subjugation, and territorial remoteness.Even progressive orders show a shift in the judicial thinking, such as that of Joseph Shine and Independent Thought, but institutional adjustments are needed.Institutional responsibility, gender sensitization training modules, proper implementation of free legal aid, and induction of greater numbers of women into judiciary are the need of the hour. Marital rape is a prime example of inaction within legislative and judicial mechanisms because cultural attitudes towards marriage often undermine women’s autonomy. Legal procedure problems, low legal literacy, and the absence of conducive legal environments are continually hindering the pursuit of justice.Briefly, the realization of gender justice is not simply more and improved law but a fundamental transformation in the judiciary’s understanding and approach towards women’s issues. Unless and until this is done, the law machinery will continue to ignore the very persons who are owed a duty of protection by it.