By Sahil Malhotra
Abstract
Male and female offenders are not treated equally in India. Judges often go beyond the law and apply social and cultural biases in determining whether a female suspect is liable, and in sentencing her if convicted. This article discusses various such biases and the consequences of their application in the judicial process. It ultimately argues that there is a dire need for rectifying this biased outlook, to take into account the social realities of a female offender, and judge her accordingly.
The criminal law “is dominated … by a preoccupation with men and male perspectives … [it]is – and has been for centuries – a system of rules conceived and enforced by men, for men and against men.”
In such a world of crime, it becomes important to understand the manner in which a female offender is treated by the Indian criminal justice system. The Supreme Court of India has opined that, though gender is not a mitigating factor in many countries of the world, however, as far as the Indian judiciary is concerned, gender is a relevant circumstance taken into consideration while deciding the quantum of the sentence to be given to a female criminal.
Insofar as the sentencing of convicted female offenders is concerned, there is a complex dilemma to be considered. On one hand, in terms of the wide discretionary powers given to judges for sentencing of offenders, if the judiciary takes into account certain mitigating factors from the female offender’s life, then there is a high possibility that it is portraying a misogynistic mentality which is based on outdated and archaic assumptions about a woman in that situation, and about the ‘weaker’ sex in general. This is evident from the cases of Satni Bai v. State of Madhya Pradesh (Now Chhattisgarh) and Lichhamadevi v. State of Rajasthan. In the former, the accused-appellant was found standing near the dead body of her son with a bloodstained axe in her hand. The Court observed that any mother’s normal reaction would be to go hysterical and clutch the body of her son. Therefore, the unusual reaction of the appellant was used as a ground to determine her involvement in the crime, and she was thus convicted. In the latter case, the accused-appellant was convicted for the murder of her daughter-in-law, because she had harassed the deceased for dowry, had an ‘overbearing’, ‘barbaric’ attitude, and was the ‘master of the house’. On this basis, the Court held her guilty.
Therefore, we see that a court’s discretionary sentencing power can at times become discriminatory. In such situations, the certainty of the criminal law is destroyed, as there is no uniformity in sentencing patterns across cases.
The other side of this dilemma is that there must be a consideration of the many circumstances which cause women, specifically, to commit crimes, and the several negative effects of incarcerating women (especially mothers) on their families. The problem with this second view is that it becomes a very subjective standard of judging criminal liability and determining sentences, as compared to the objective standard of judging the seriousness of the crime and the prior record of the accused.
Whilst considering issues of sentencing and the overall treatment of female offenders, it becomes important to not focus on only the person-centred and person-mediated approaches to understanding the social phenomenon of crime. According to the first approach, the reasons that an individual commits a crime are directly linked with the individual himself/herself, i.e. the problem arises from within the wrongdoer. In the context of female offending, this essentially implies that the female herself is deviant, and that it is her abnormal way of thinking, feeling and behaving that leads her to commit an offence. According to the second approach, it is not only the individual characteristics of a female, but also the circumstances which have developed as a result of the proximal contexts of the particular female, which lead to offending. This basically implies that offending results from the social, historical and developmental context of a woman’s life. Such contexts include childhood maltreatment, family dysfunction, low income, substance use, etc.
The problem with the above two approaches is that they adopt an essentially victim-blaming ideology. Both find the cause for criminal activity within the woman herself. Furthermore, these approaches serve to cause ‘othering’ of female offenders, drawing a distinction between offenders and other segments of the population. Certain scholars suggest that female offenders are treated more leniently by the criminal justice system. Therefore, a question arises as to whether it is gender per se or the social implications attached to a particular gender status that affect any observed gender-related punishment patterns?
It is clear from an analysis of Supreme Court cases that the court takes into account various gendered circumstances in deciding the culpability of female accused in a particular case. Very often, the court’s decision-making is guided by its conceptualisation of gender roles in society. Interestingly, this conceptualisation has been used by the court to ascertain the liability of the woman, to defend the woman from being held liable, as well as to reduce or mitigate the woman’s liability. The reason for this can be one of three – either the system is too ‘chivalrous’ with females, because it deems them in need of protection (considered dysfunctional, not capable of forming the mental requirements of a crime, especially heinous ones); or the system is more punitive since it deems female offenders too ‘masculine’; or the system propagates a stereotypical image of women in society.
The principle of judicial chivalry is clearly depicted in those cases where the court defends a woman in order to pronounce a judgement of acquittal. According to this principle, women are treated as less responsible for their actions, and therefore less culpable. Thus, women are treated as being less criminally dangerous than men and posing a lesser threat to society. Daly suggests that the emphasis of chivalry is not so much on the female offender herself, but on the husband and children of the offender. This is clearly evident in the case of Shantabai and Ors. v. State of Maharashtra, where the court went to great lengths to hold that there was no illicit relation between the prime accused and the deceased. It did so by noting that she was happily married and living with her husband and children. Therefore, what emerges is that the focus is not on the woman, but on the need to preserve the fabric of society.
Closely tied in with chivalry is the familial paternalism theory. According to this theory, the concept of chivalry is aimed at ‘good parents, and therefore, towards ‘good women’. A woman who does not perform her duties as a parent, or one who breaks accepted social and cultural norms, is not considered to be a ‘good woman’. For example, females convicted of child abandonment received significantly longer sentences as compared to their male counterparts, because such females were viewed as ‘bad’ mothers.
Female offenders who commit gruesome, brutal crimes such as murder, are often considered to be more masculine. The masculinity of the offence committed by a woman thereafter plays a role in the decision-making process of the judiciary. This happens in two ways. The gruesome nature of the crime can either require the establishment of a very strong motive to attach culpability, or it can lead to harsher punishment. The former is evident through the case of Chinnamma v. State of Kerala, where the court required a strong motive to be proved in order to justify killing by administering a blow on the back of the head and then burning the body. As far as the latter situation is concerned, female offenders convicted of serious crimes have received similar treatment to male offenders convicted for similar offences. This is because the women have committed a grave offence, and therefore displayed characteristics that are predominantly male in nature. Therefore, they have acted contrary to accepted gender norms, and are liable for stringent punishment.
Very often, judges resort to employing sex-role stereotypes, which are driven by ancient socio-cultural norms and biases. Women are commonly considered to be the foundation stone of the family in particular and society in general. In India, especially, the woman, be it the mother, the daughter, or the wife, is seen as the preserver of social norms, morality, customs, traditions and family cohesiveness. The woman is supposed to be submissive, passive, compassionate and ready to compromise in order to maintain the family. She is supposed to serve her family and her husband dutifully and faithfully. Also, the woman is supposed to be the primary caretaker and provider of emotional support for the child.
The fact that some of the judges with this bias in mind are trying to find some sort of relation between biological identity and criminality also plays a minor role here. In the case of Smt. Paniben v. State of Gujarat, where a woman burned her daughter in law alive by throwing kerosene on her and lighting it, the court spoke about her saying that even the mother in her didn’t prevent her from committing this act, that it was quite unfortunate that a female should kill another female in this manner.
One reason for which gender roles are taken into consideration by the judiciary is that there can potentially be severe consequences of incarcerating female offenders with children. Extensive studies have been carried out on the effects of imprisoning a woman with children on the children themselves. The effects are especially pronounced on those children who accompany the mother to prison. One of the consequences is that the child becomes an ‘innocent victim’ who is punished by the incarceration of a parent who is probably the only caregiver to the child.
The case of State through S.P., CBI/SIT v. Nalini and Ors. is different from the above-mentioned examples because, in it, the court uses gendered stereotypes as mitigating circumstances. The dissenting judge with regard to the death sentence, Justice Thomas, noted that because she belonged to the ‘weaker sex’, she was unable to escape from the conspiracy of the co-accused men. Further, her execution would lead to the orphaning of her girl child, who had been born in prison.
The above analysis depicts that the present manner in which culpability is determined is incapable of accommodating the various experiences in a woman’s life. This leads to judgements on the culpability of a woman which are highly inconsistent, and, at times, unfair.
This does not mean that gender should not be a factor at all. Instead, this means that, while taking gender into account, judges should attempt to apply a more or less uniform standard in attempting to decide the culpability of female offenders. Again, this must be further qualified by the fact that the particular circumstances of each case must be taken into account since the criminal law prescribes an essentially subjective standard for the determination of culpability.
Therefore, what emerges is that there is a need for rectification of the gendered outlook. Judges should not apply their own understanding of a woman’s role in society. Instead of applying and enforcing gender-based stereotypes in order to defend and acquit women, gendered circumstances and factors which drive women to commit crimes, in the specific context of a case, as well as in a broader social context, must be taken into consideration.
An argument can be made that such specific gendered circumstances should not be taken into account since it is unfair to male offenders committing similar offences. However, it is impractical to have unvarying standards for male and female offenders, because this will only lead to superficial fairness, which would be restrictive and misleading. The best interests of society will not be served by a policy which attempts to create a uniform system of justice for all offenders. In the words of Tina Freiburger, ‘fairness that is applied at a global level could potentially fail at achieving fairness at the individual level’.
Defendants who hold familial responsibilities must be shown some concern and must be given some concessions, otherwise, their family will also suffer. Therefore, more than uniform sentences, judicial discretion in sentencing could be beneficial to society as a whole. However, such discretion must be regulated to the extent that it does not degrade into discrimination.
[The author is a 2nd-year student at National Law University, Delhi, pursuing a B.A. LL.B. (Hons.) degree.]
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