Gender in judicial discourse: Behind legal language

On February 12, 2025, the Supreme Court of India strongly criticised a Bombay High Court judgment for using misogynistic language in a case concerning alimony. In Sukhdev Singh v Sukhbir Kaur, the court observed that addressing the wife in a void marriage using certain gendered terms violated her dignity and identity, especially when the husband was not addressed with similar adjectives. The bench, consisting of Justices Abhay S Oka, Ahsanuddin Amanullah and Augustine George Masih, went on to adjudge that using derogatory terms for the woman was violative of Article 21 (Right to Life and Liberty), and against the ethos and ideals of the Constitution. As the apex court emphasised, there is a need for the use of gender sensitive language by the judiciary. 

It becomes pertinent to look at the steps taken by the judiciary in the last few years towards adopting gender-neutral language. We can consider several examples — prominent cases where the use of biased language by judges either deepened or challenged existing gender stereotypes.

The case mentioned above is unfortunately, not the only instance of courts employing gender-biased language, which perpetuates discrimination, exclusion and the inaccurate application of law. The Bombay High Court also came under criticism again for its judgment in Bhausaheb v Leelabai. This was condemned by the Supreme Court in February for its use of misogynistic language. 

In July 2020, deciding on a bail application in a rape case, the Karnataka High Court observed that the prosecutrix falling asleep after being raped was “not the way Indian women behave after being ravished.” 

On similar lines, in April this year, the Allahabad High Court granted bail to a rape accused on the grounds that the victim had consumed alcohol and had gone to the accused’s house for rest, whereby she “invited trouble” and understood the “morality of her act”. 

The sessions court, Kozhikode, in a 2022 case, noted that the complainant was “wearing a sexually provocative and exposing dress” during the incident, and so, de facto, a charge of harassment would not stand against the accused. 

Judgments such as these further perpetuate gender stereotypes, setting back women’s fight for equality and dignity. 

However, there have also been corrective judgments that strictly advised judges to eliminate stereotypical language in their orders.

In January 2024, the apex court set aside the Calcutta High Court decision in Probhat Purkait v State of WB, wherein the high court had held that “adolescent girls should control their sexual urges” or else society calls them “losers”. The SC overruled the said verdict and advised courts to refrain from using stereotypical and derogatory language. 

In Aparna Bhat v State of Madhya Pradesh (2021), the SC noted that the survivor having consented in the past to similar acts, dressing or behaving in a certain manner are not considerations that should alter judicial decision-making in cases of sexual offences. The court also mandated that gender sensitivity training be a compulsory part of the modules of the National and State Judicial Academies, Judicial Services Examination and the All-India Bar Examination.

In late 2023, the Supreme Court of India, under the leadership of the then Chief Justice D Y Chandrachud, released a manual for judges, aimed at guiding them to eliminate gender stereotypes in judicial language and replace often used gender-biased terms with gender-neutral terms. In the foreword of the manual, Justice Chandrachud observed that relying on pre-determined stereotypes in judicial decision-making undermines the duty of judges to decide each case independently on its merits. Reliance on stereotypes about women is likely to distort the application of the law to women in harmful ways. 

The Handbook explains at length the prevalent gender stereotypes and demonstrates how inaccurate they are while instructing the judges as to how to identify their personal gender bias and correct the same. It also summarises the Supreme Court’s position and current doctrine on key legal issues concerning sexual violence, family law matters, etc. 

It advocates for replacing terms such as ‘adulteress’ with ‘woman engaged in sexual relations outside marriage’, ‘concubine/keep’ with ‘woman with whom man has sexual relations outside of marriage’, ‘ravished’ with ‘sexually harassed/assaulted or raped’. The manual also stresses upon eliminating the use of misogynistic terminology and homophobic vocabulary. It is undoubtedly an important step towards gender sensitivity in the language of judgments and pleadings, but whether the ethos of the manual is followed through by the legal and judicial community remains to be seen.

Language is an integral part of the law and most legal conflicts are centred around the lingual interpretation of certain clauses. The use of the right vocabulary is extremely crucial in identifying and remedying the plight of women and gender minorities in cases of sexual violence, family disputes and harassment. Or else, judgments just become another site for embedded patriarchy. As society evolves, the legal language needs to evolve in a progressive fashion with it. Justice Chandrachud noted in the handbook that words are the vehicles through which the values of the law are communicated. Language is critical to the life of the law. 

As long as the language of judicial discourse is not free from biased notions, misogynistic words, archaic patriarchal undertones and gender-unjust terms, the ethos of transformative constitutionalism, social justice and substantive equality will not be realised. This is why there is an urgent need to incorporate gender-sensitive and neutral language in legal pleadings, judgments and orders. 

Way forward 

In 2004, a collective of female lawyers in Canada set up a project called ‘Women’s Court of Canada’, where they rewrote “shadow judgments”, as a critique on equality jurisprudence. Following in its footsteps, the Indian Feminist Judgment Project of 2021 is a collaborative movement of feminist scholars who have rewritten landmark judgments with a feminist lens. Both these projects highlight that if gender stereotypes and biased language were eliminated from these judgments, the appreciation of evidence could have been different, in turn leading to a more empathetic verdict for women and gender minorities. 

The pragmatic gender-just guidelines issued by the Supreme Court need to be incorporated in statutory language and judicial discourse as well, in order to bring about effective change. For instance, up until 1976, the Civil Procedure Code of India used the term “pauper” to define a person without financial means. However, the word “pauper” was rightly noted to be an insensitive and derogatory term mocking one’s poverty. As a result, in 1976, by way of an amendment, the said word was replaced in the law with the term “indigent person”. Although this amendment did not serve a strictly legal purpose, it highlighted the humanity of the people it referred to, and was thus an important amendment. 

A similar course of action needs to be followed in our penal laws, personal laws and most importantly, judicial pronouncements. The language used to refer to a person can either recognise or diminish their dignity, and thus, the right terminology is crucial for gender justice. 

(Varsha Singh is a judge posted in Rajasthan. She writes on gender studies, human rights and law.)