Kerala High Court, in a judgment delivered on Teachers’ Day, on 5th September, while deciding the legal question of whether a person watching a pornographic video in his private time constitutes an offence, launched into a lecture on good parenting in the following words:“9. But before parting with this case, I must remind the parents of minor children in our country. Watching pornography...
Kerala High Court, in a judgment delivered on Teachers’ Day, on 5th September, while deciding the legal question of whether a person watching a pornographic video in his private time constitutes an offence, launched into a lecture on good parenting in the following words:
“9. But before parting with this case, I must remind the parents of minor children in our country. Watching pornography may not be an offence. But if minor children start to watch porn videos, which are now accessible in all mobile phones, there will be far reaching consequences. The innocent parents will give mobile phones to their minor children to make them happy. Instead of delicious food made by the mother and a cake cutting ceremony on birthdays of children, parents are giving mobile phones with internet access to their minor children as a gift on such occasions to make them happy. The parents should be aware of the danger behind it. Let the children watch informative news and videos from the mobile phones of their parents in their presence. Parents should never hand over mobile phones to minor children to make them happy and thereafter complete their daily routine works in their house allowing unsupervised use of mobile phones by children. Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future. Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society.” (Aneesh v. State of Kerala, Crl.MC No. 7421 OF 2022)(emphasis supplied)
This judicial discourse reflecting primitive and antiquated ideas about women and parenting comes not even a month after the Hon’ble Chief Justice of India released the Handbook on Combating Gender Stereotypes-Supreme Court of India. For a Judge to harbour a notion that only a mother can cook food for her child is affirming a gender stereotype that is seriously prejudicial to the family as an institution and women as a class, and even disenfranchises fathers with culinary skills!
The Judge’s uncalled for advice which according to him is “necessary for a healthy young generation who are to become the beacons of hope of our nation in future” sets back the clock for women who have chosen to stay away from the Great Indian Kitchen and pegs healthy development of the child inter alia with the ability of the mother to make delicious food (it’s also curious why the focus is on delicious and not healthy and wholesome). What such a statement takes away is the autonomy of a woman (or a man) for that matter to choose what gives them satisfaction and fulfilment without being hemmed in by stereotypes and societal expectation. Having the ability to make delicious food is indeed a talent to be celebrated without being made the exclusive domain of any one sex.
Should one just ignore this ‘well-meaning’ tirade by trying to read ‘mother’ as including ‘father’ or ‘cook’ or anyone else capable of producing delicious and mesmerizing food? The answer is a firm ‘No’. The mention of mother alone is problematic given our social context where it would be taken to mean mother alone to the exclusion of all others. As Chief Justice Chandrachud stated in his preface to the Handbook on Gender Stereotypes, “Where the language of judicial discourse reflects antiquated or incorrect ideas about women, it inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender.” Observations reinforcing patriarchy has no space in judicial discourse, where Judges of today are duty bound to actively “recognize deep rooted effects of gender stereotypes and actively work to dismantle them.”
To this end, the Supreme Court’s Handbook on Gender Stereotypes has detailed out types of gender stereotypes based on (i) inherent characteristics, (ii) gender roles, and (iii) related to sex, sexuality and sexual violence. The comparison of stereotype and reality in context of gender roles is worth reproducing to aid in our present discussion.
Women are more nurturing and better suited to care for others.
People of all genders are equally suited to the task of caring for others. Women are often socially conditioned to care for others from a young age. Many women are also forced to abandon their careers to care for children and the elderly.
Women should do all the household chores.
People of all genders are equally capable of doing house chores. Men are often conditioned to believe that only women do household chores.
Wives should take care of their husband’s parents.
The responsibility of taking care of elderly individuals in the family falls equally on individuals of all genders. This is not the sole remit of women.
Women who work outside of the home do not care about their children.
Working outside of the home has no correlation with a woman’s love or concern for her children. Parents of all genders may work outside of the home while also caring for their children.
Women who are also mothers are less competent in the office because they are distracted by childcare.
Women who have “double duty”, i.e., work outside the home and raise children are not less competent in the workplace.
Women who do not work outside the home do not contribute to the household or contribute very little in comparison to their husbands.
Women who are homemakers perform unpaid domestic labour (such as cooking, cleaning, washing, household management and accounts) and care work (such as caring for the elderly and for children, helping children with their homework and extracurriculars). The unpaid labour performed by women not only contributes to the household’s quality of life but also results in monetary savings. Women who are homemakers contribute to the household to an equal (or greater) extent. Their contributions are often overlooked because men are conditioned to believe that such work is of limited value.
The Supreme Court Handbook in a clear and accessible manner, along with relevant case law, explains how language plays an important role in perpetuating gender stereotypes and thereby hinders gender equality. The Handbook is also replete with examples of gender tropes that have peppered legal pleadings and judgments for generations and provides a toolkit on how to avoid stereotypes that reinforce debilitating gender assumptions. While the Supreme Court is prioritising the sensitising of the entire legal fraternity on this issue and the Handbook has been widely disseminated, it does not behoove a Constitutional Court to have made observations reaffirming gender sterotypes. The said observation has necessarily to be expunged from the Court’s judgment. Not only was the same not necessary for the decision in the case, and infact is in breach of judicial discipline, such needless pontification goes against the Constitutional goal of equality of sexes.
Personally, as a mother with neither the skill, the inclination nor the time to cook regularly for my children, a comment like this did momentarily add to my mental pressure before I drew on my reserves of self-worth to brush it off. Iam confident in my belief that cooking does not have a bearing on how good a mother I am.
The said judgement also contains the observation that “God designed sexuality as something for a man and a woman within marriage”. The Hon’ble Court appears to have missed the march of law - of Section 377, IPC having being declared unconstitutional as well as a Constitution Bench reserving the judgment on same sex marriage after having heard arguments for many days.
It would not be out of place to reflect on the key impact the High Courts have on day to day justice dispensation in the lower courts. High Courts exercise supervisory jurisdiction over the subordinate courts in their States. The lower judiciary is appointed by the High Court. A High Court's utterance, even as an out of place, obiter dicta, provides direction to its subordinate courts as they hear and dispose matrimonial cases, sexual assault cases and other cases in which gender-based roles and conduct are considered, whether expressly or impliedly. Thus the dangers of a remark perpetuating gender stereotypes uttered by a High Court cannot be understated.
It is, however, heartening that, on 6th September, the very day after the Kerala High Court judgment, the Bombay High Court, in a Division Bench Judgement penned by Justice Sharmila U Deshmukh, held that expecting the wife to do all the household work reflects a regressive mindset and that in a modern society the burden of household responsibilities has to be borne by both husband and wife equally.
One hopes that the relevant comments of the Kerala High Court are expunged, and all Courts and the legal community at large collectively tread the path to greater gender equality. The societal transformation sought to be achieved through 33% reservation of women in legislative bodies will materialize only with discarding of stereotypical thinking and ungendered roles of men and women percolating to all levels of decision making.
(With inputs from my friend, lawyer and fellow infuriated mother Radhika Kolluru)
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