Combating Gender Stereotypes In Sexual Offences : How Supreme Court's 2026 Guidelines Differ From 2023 Handbook

Pursuant to the Supreme Court's directions, an Expert Committee constituted by the National Judicial Academy (NJA) recently released certain guidelines for adoption of gender-sensitive, survivor-centric and compassionate court practices by judges.

The guidelines were prepared by a committee headed by former Supreme Court judge Justice Aniruddha Bose, after a bench led by Chief Justice of India Surya Kant opined that the top Court's 2023 Handbook on Combatting Gender Stereotypes, an initiative of former CJI Dr DY Chandrachud, was "too technical" and "Harvard-oriented" for layperson understanding. In February this year, CJI Kant called for "fine-tuning" of the Handbook, ordering the NJA to draft comprehensive guidelines for judicial handling of sensitive cases.

The primary concern of the CJI was that the suggested norms must reflect India's social fabric, not be borrowed from foreign jurisdictions, and the same be worded in simple words for ease of understanding. Considering a case before him where a bench of the Allahabad High Court exhibited an insensitive attitude towards a sexual offense, the CJI lamented that various steps on the judicial and administrative side had not yielded the expected results on judicial sensitivity.

In this backdrop, the NJA-constituted Expert Committee recently gave its report 'Judgments and Gender' (hereinafter, '2026 report'). Perhaps in an attempt to base the recommendations in Indian ethos, the same was formalized after a review of 125 Trial Court judgments and the Committee's interactions with members of State Judicial Academies.

Broadly, the 2026 report underlines the importance of language in shaping justice, offers an extensive glossary of problematic expressions common to orders/judgments and their legally appropriate alternatives, urges judges to avoid victim-blaming and focus on evidence/facts, cautions against adverse inferences based on post-occurrence victim behavior and calls for an emphasis on bodily autonomy, dignity and personal integrity (as opposed to chastity, modesty, prestige, honor).   

More particularly, the report recommends that judges do not speculate on victim's clothing or lifestyle or make comments on a complainant's sexual history. The decisions should use legally precise expressions instead of moralistic or sensational language, it says.

This article attempts to contrast the 2026 report with the 2023 handbook.

Scope

The most crucial distinction perhaps is in the scope of the two documents. While the 2023 handbook provides a broad and sophisticated look at the stereotypes that might creep into judicial reasoning in gender-specific cases, the 2026 report outlines a more practical way of tackling insensitivity in judicial decisions related to sexual offenses.

The 2026 report primarily addresses concerns around sexual offenses, while the 2023 handbook deals with a broader range of stereotypes affecting cases, which may or may not involve women or a sexual offense.

For instance, the 2023 handbook discusses the stereotype that people from low-income backgrounds are more likely to commit crimes. It posits that a judge in seisin of bail pleas of two separate accused, reeling under such a stereotype, may be inclined to direct a higher bail bond for the accused from low-income background. That way, the stereotype enters judicial decision-making and gets further perpetuated if the person from low-income background cannot eventually secure bail due to the condition set.

The 2023 handbook therefore analyzes how stereotypical thinking on the part of a judge can harm the cause of justice by leading them to decide a matter based on prejudices about a particular group. It underlines that this group of persons does not have to be gender-specific; rather, the stereotypical views can be held about persons of a particular caste, race, physical appearance, or even disability.

Contrarily, the 2026 report stresses more on the style of judicial writing. While it does provide 9 broad principles for decision-writing, it mostly cautions against the use of stereotypical language in decisions or inside courtrooms. Being heavily focused on sexual violence cases, it flags a concern that insensitive language in decisions may discourage reporting of sexual offenses and retraumatize survivors.

Glossary

Both documents contain a glossary of words/phrases that would be better to avoid and offer alternatives. There is no marked difference in the glossaries. However, the 2023 handbook seems to focus more on how a victim/survivor is referred to, while the 2026 report cautions against victim-blaming and calls for a more evidence-based approach (as opposed to speculation and moral policing).

The 2023 handbook recognizes the words "fallen woman", "seductress", "adulteress", "chaste woman" and "career woman" as promoting stereotype. As opposed to these, it suggests that simply the word "woman" be used, without addition of any adjective. With regard to the words "hooker" and "prostitute", it suggests "sex worker" as an alternative, although it adds that the word "prostitute" may be used in the context of some statutes, such as the Immoral Traffic (Prevention) Act.

This handbook also questions the stereotypical attitudes that lead to the usage of the words "ladylike", "breadwinner", "faggot", "housewife" and "bastard". It suggests that "ladylike" be replaced by a more gender neutral term describing a behavior (like amusing), "breadwinner" be replaced with "earning/employed", "faggot" be replaced with homosexual, bisexual or any other word that aptly describes a person's sexual orientation, "housewife" be replaced with "homemaker" and "bastard" with "non-marital child".

On similar lines, the 2026 report finds fault with words/phrases that blame the victim, indicate speculation or invoke concepts of "honor" or "chastity". It suggests use of a neutral language which does not link a woman's worth to sexual purity or family reputation. For instance, on the use of phrases like "fueled by lust" or "inability to control emotions", it says that judges must avoid attributing crimes to lust or rationalize or trivialize them. They must address the acts as they are - acts of "sexual violence/sexual assault". As opposed to phrases like "destroys the very soul of a helpless woman", "poor helpless minor girl", "haunt throughout her life", the report suggests saying that the victim/survivor may face challenges and focus on support.

Even though the phrase "outraging modesty" forms part of penal laws, the report says that it may be used cautiously, as it may indicate patriarchal notions. With regard to members of LGBTQIA+ community, the report gives a preference for the word "gay" or "lesbian" over "homosexual". It further adds that "intersex person" is a more dignified and acceptable term to refer to the third gender.

A closer look would indicate that the 2023 handbook suggests use of a more inclusive language to break harmful patterns of thinking. The 2026 report on the other hand calls for avoidance of words/phrases that indicate traditional attitudes and shift focus away from violation of victim's rights and evidence.

Institutional practices

Another aspect that sets the 2026 report apart are the recommendations contained therein for reform of courtroom practices. It advises trial judges to verify if victims of serious offenses have been provided legal assistance from the FIR stage itself, to facilitate access to victim compensation schemes and to ensure victim/witness protection without requirement of formal applications.

The report also urges the judges to proactively protect victims/survivors from irrelevant or humiliating questioning during cross-examination (such as, about sexual history). It reiterates the need for strict confidentiality of survivors' identities, trauma-informed courtroom management, use of screens for vulnerable witness, etc.

The report further reminds the trial judges of the obligation to hold in-camera trials in sexual offenses and sensitive cases. It also highlights the importance of pre-trial victim counselling (to reduce anxiety and instill confidence) and calls for better treatment of witnesses so that they are not discouraged from testifying.

The 2023 handbook is silent on courtroom management and and the duty of a judge to provide a safe environment for victims/witnesses. But logically so. The goal of the handbook was to identify gender stereotypes and contrast them with the correct manner of thinking, which it achieved.

Closing remarks

The titles of the two documents precisely indicate the difference between them. While the 2023 handbook captures ways of "combating gender stereotypes", the 2026 report deals with "judgments and gender". The handbook should help judges arrive at better decisions by recognizing and avoiding gender stereotypes, while the 2026 report can guide them on how to write better-worded decisions as well as trauma-informed courtroom management.

Neither one is better than the other. Instead, together, they offer a deeper understanding of stereotypes that exhibit themselves in the form of "judicial insensitivity" (in decisions or otherwise). This understanding, the handbook supplements with a jurisprudential explanation of why the stereotypes need to be junked, and the report, with an illustration of how they can be weeded out.

Although, as opined by CJI Kant, judicial and administrative efforts towards judicial sensitization have not borne the expected results so far. It therefore remains to be seen how the new report will fare, given in particular the fact that it has been made part of the Supreme Court's order on judicial side and directed to be widely publicized.