A Study into the Gender Bias System in the Indian Legal System

Author: Saumya Rawat

Introduction

The criminal justice system in India operates within a complex web of legal frameworks, social expectations, and institutional practices that often reflect deeply embedded gender biases. While the Indian Constitution guarantees equality before the law under Article 14 and prohibits discrimination on the basis of sex under Article 15, the practical implementation of these constitutional principles reveals significant disparities in the treatment of male and female offenders.

This chapter examines the multifaceted nature of gender bias as it manifests through institutional attitudes and procedural mechanisms, with a particular emphasis on how these biases affect women offenders.

The intersection of gender and criminal justice presents a paradoxical landscape where women experience both protective paternalism and discriminatory treatment.

Traditional gender stereotypes influence the perceptions of law enforcement, prosecutors, and judicial officers regarding female criminality. These perceptions often result in differential treatment that may be either more lenient or more punitive, depending on how a woman’s behavior aligns with societal expectations of femininity and traditional gender roles.

Understanding gender bias in the criminal justice system requires examining both overt discrimination and subtle differential treatment that may appear neutral but have disparate impacts on women. The challenge lies in distinguishing between legitimate considerations of gender-specific needs and discriminatory practices that perpetuate inequality—especially for women offenders, a growing but still marginalized segment of the justice system.

Judicial Attitudes and Gender Bias

The judiciary represents the final institutional checkpoint where gender bias can influence criminal justice outcomes. Judicial attitudes toward female criminality are shaped by legal training, personal experiences, societal norms, and institutional culture.

Despite constitutional mandates and legal reforms promoting gender justice, judicial decision-making often reflects subtle and overt forms of gender bias.

Sentencing Disparities

Studies show that women generally receive more lenient sentences than men for similar offenses. This leniency is often based on assumptions that women are less culpable, less dangerous, and more amenable to rehabilitation. While this may appear beneficial, it reflects paternalistic attitudes and undermines equal treatment under the law.

Courts often consider gender-specific mitigating factors, such as:

• Pregnancy

• Childcare responsibilities

• History of domestic violence

• Family circumstances

These considerations, though valid in individual cases, may not always be extended to male defendants, raising equality concerns.

Although gender sensitization programs for judges have been implemented (e.g., by the National Judicial Academy), their effectiveness remains limited due to institutional resistance and deep-rooted cultural attitudes.

Sentencing Disparities

Although statutory criminal laws in India are gender-neutral, sentencing outcomes reveal gendered patterns in:

• Punishment severity

• Use of mitigating factors

• Access to alternative sentencing

Mitigating and Aggravating Factors

The application of mitigating and aggravating factors in women's cases reveals a gendered framework for evaluating culpability.

Mitigating Factors

• Pregnancy and motherhood are frequently cited as grounds for reduced sentencing.

  • The Supreme Court’s ruling in Shatrughan Chauhan v. Union of India barred the execution of pregnant women, recognizing their reproductive roles in sentencing decisions.

• Impact on dependent children: Courts often view the incarceration of mothers as particularly disruptive to families.

Aggravating Factors

• Women defying traditional roles (e.g., abandoning children, engaging in extramarital affairs) may face harsher penalties.

• Mental health defenses are accepted more readily for women but often through stereotypical lenses (e.g., hysteria, emotional instability).

This dual application shows how moral judgments about feminine behavior can shape legal outcomes, offering leniency in some cases while reinforcing gender-based expectations in others.

Conclusion

The examination of gender bias in India’s criminal justice system reveals a paradox: while women offenders may benefit from leniency in some instances, such treatment often stems from paternalistic assumptions rather than genuine commitment to equality.

Bias manifests at every stage—investigation, arrest, prosecution, bail, trial, and sentencing—and reflects societal views on women’s roles rather than objective legal standards.

Reforms aimed at training, policy change, and institutional accountability are essential to dismantle this embedded bias. Yet, superficial interventions are insufficient. Deep-rooted change requires:

• Gender-sensitization across institutions

• Gender-responsive legal procedures

• Acknowledgment of women’s specific needs and vulnerabilities

The current system often rewards conformity to maternal or domestic roles, while punishing deviation from them. In doing so, it reinforces stereotypes and compromises the principles of justice and equality.

To build a truly gender-just criminal justice system, India must commit to systematic reforms, including:

• Improved judicial training

• Inclusive data collection on women offenders

• Gender-responsive incarceration and rehabilitation programs

Only then can the law ensure equal protection and dignity for all, regardless of gender.