Open Access Research Article
White Black Legal – International Law Journal · ISSN 2581-8503
A critical analysis on gender bias in the criminal justice system
Read the Full Research Paper
Access the complete open-access article in PDF format. No login is required.
Abstract
A CRITICAL ANALYSIS
ON GENDER BIAS IN THE CRIMINAL JUSTICE
SYSTEM
AUTHORED
BY - VIJAY SRIRAM KS
Doctrinal and Analytical Study
The publication examines gender
bias across the criminal justice process, including reporting, investigation, prosecution, trial, sentencing, imprisonment and rehabilitation. It also considers the position of women, men, transgender persons and other
individuals whose experiences do not fit traditional gender assumptions.[1]
The criminal justice system is
expected to treat every person fairly, regardless of their gender or social
background. In reality, however, gender can influence how a person is treated
when they approach the police, courts or other legal institutions. Gender bias
does not always appear as an obvious act of discrimination; sometimes it exists
in the form of assumptions, attitudes and stereotypes. Women who report crimes
may face questions about their character, behaviour, clothing, relationships or
personal choices instead of receiving immediate support. Such attitudes can
discourage victims from reporting offences and can make an already difficult
experience even more painful. At the same time, men can also experience
gender-based difficulties, particularly when they become victims of violence or
are accused of offences involving women. Social expectations about masculinity
may make it difficult for male victims
to speak openly about their
experiences or seek legal protection.
Transgender persons and other gender minorities may face even greater barriers
because the traditional criminal
justice system is often built around fixed ideas of gender. Gender bias can
therefore affect different people in different ways at different stages
of the criminal justice process.
It may begin with the registration of a complaint and continue through investigation, prosecution, trial, sentencing and imprisonment. The problem
is not necessarily that the
law itself is always discriminatory, but that the people applying the law may
carry social attitudes into their professional decisions. A victim may be
judged according to stereotypes, while an accused person may sometimes be viewed
through assumptions about their gender rather than the evidence available against them. This creates a difficult balance between protecting genuine victims and
preserving the fundamental rights of accused persons. Gender-specific laws are
important where particular forms of violence arise from existing social
inequalities and require special legal protection. However, such protection
should not remove the principles of fairness, equality, presumption of
innocence and fair trial. Gender justice should therefore not mean
automatically favoring one gender over another. It should mean recognizing
genuine disadvantages while ensuring that every person is treated with dignity and according to law. The Indian Constitution provides
an important foundation for this approach through the principles of equality,
non-discrimination, dignity and personal liberty. This study therefore examines
how gender bias enters different stages of the Indian criminal justice system
and how it affects victims, accused persons and other participants. Ultimately,
the study seeks to understand whether India can build a criminal
justice system that is sensitive to gender-based inequality while remaining fair, balanced
and accessible to everyone.
ABSTRACT AND KEYWORDS
ABSTRACT
Gender bias in the criminal justice
system is often discussed only in terms of discrimination against women. The
issue is broader. A person may enter the system as a victim, accused, witness
or offender, and gender-based assumptions may affect how that person is
treated. This study therefore examines whether the Indian criminal justice
system provides meaningful and equal justice while responding to different
forms of gendered disadvantage.
The study follows the process from
complaint and police investigation to prosecution, trial, sentencing,
imprisonment and rehabilitation. It examines victim-blaming, stereotyping,
credibility assessments, institutional discretion, delay and
access to justice. It also considers male victims, male accused persons and transgender persons, while
recognizing that women continue to face serious structural barriers in relation
to sexual violence, domestic violence and other offences.
The research uses a doctrinal and
analytical methodology based on constitutional provisions, legislation, judicial decisions, committee
reports, academic literature and selected empirical studies. Particular
attention is given to equality, dignity, personal liberty, fair procedure, the
presumption of innocence and the contemporary criminal-law framework under the
Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 and
Bharatiya Sakshya Adhiniyam, 2023.
The study argues that gender
justice cannot be reduced to a choice between complete gender neutrality and
unrestricted gender-specific protection. Specific protection may be justified
where structural inequality is established, but such protection must not become
a presumption of credibility or guilt. A gender-responsive system should
therefore protect genuine victims while preserving due process and equal
treatment before law.
KEYWORDS:
Gender Bias;
Criminal Justice System; Gender Justice; Substantive Equality; Feminist
Jurisprudence; Gender Stereotyping; Gender Neutrality; Victim Rights; Accused
Rights; Criminal Law.[2]
TABLE OF CASES TABLE OF CASES – 7 IMPORTANT CASES
|
These seven decisions are used selectively in the discussion because
they directly support
the publication’s themes of equality, dignity, autonomy, stereotyping
and victim protection.[3]
CHAPTER I – INTRODUCTION AND RESEARCH FRAMEWORK
1.1
Background and Significance of the Study
The criminal justice system is
expected to give every person a fair opportunity to report an offence, receive
a proper investigation, participate in proceedings and be judged according to
law and evidence. In practice, social attitudes may influence how institutions
understand victims, accused persons and witnesses. Gender bias therefore cannot
be examined only by reading statutory language; it must also be examined through the way legal rules
operate in real institutions.
Women have historically faced
under-reporting, victim-blaming, insensitive investigation, social pressure and delays in cases involving
sexual violence, domestic violence and harassment. The Justice
J.S. Verma Committee highlighted
institutional problems in policing, investigation and prosecution after the
2012 Delhi gang-rape case. These concerns show that legal protection is only
one part of justice; institutional response is equally important.
At the same time, a complete study
of gender bias cannot stop with women as victims. Men may face social
expectations concerning masculinity, male victims may hesitate to report
certain offences, and accused persons may face stigma and serious consequences
before a final decision. Transgender persons
and other gender-minority persons may also experience gaps where legal
categories do not reflect their lived realities.
The significance of this study lies
in balancing two concerns that are often discussed separately: protection of
persons who face structural gender disadvantage and protection of
constitutional due process. Articles 14, 15 and 21 provide a framework of equality,
non-discrimination, dignity and personal liberty. The research therefore treats gender justice as
a question of institutional fairness rather than a simple comparison
between men and women.[4]
1.2
REVIEW
OF LITERATURE
1.2
REVIEW OF LITERATURE
– FIVE SELECTED WORKS
1.
Feminist Jurisprudence and Substantive Equality
The work of Shampa Dev and related
feminist-jurisprudential scholarship helps explain why formal equality may not always produce equal outcomes. Feminist jurisprudence questions whether apparently neutral
legal rules operate neutrally in a society where social and institutional
inequalities already exist. This approach is useful for criminal justice
because identical treatment at the surface level may fail to address unequal
barriers faced by different groups.
The same literature also warns
against paternalism. A law designed to protect women may become problematic if
women are treated as inherently weak or lacking agency. The present study
therefore uses substantive equality as a framework that recognises
structural disadvantage without
turning gender into an
automatic basis for credibility, responsibility or legal entitlement.
2.
Feminist Criminology and Gendered Perceptions of Crime
Frances Heidensohn and Carol Smart
challenged criminological approaches that treated male experience as the
standard and gave insufficient attention to women’s experiences of crime and
punishment. Their work shows that assumptions about masculinity and femininity
can influence how victimhood, offending and punishment are understood. This
provides a foundation for studying the practical operation of gender
assumptions within criminal justice institutions.
Indian discussions of female
offending also show that gender bias can work through paternalism and moral
judgment. Women may be treated as vulnerable in some settings but judged more
harshly when their behaviour conflicts with traditional expectations of
femininity. The literature therefore supports a broader understanding of bias
as stereotyping rather than merely preference for one gender.[5]
1.2 REVIEW
OF LITERATURE – CONTINUED
3.
Gender Stereotyping in Courts
Tannvi and S Narayana examine
gender stereotyping in Indian
courts and draw attention to cultural and patriarchal expectations concerning
respectable behaviour, compromise,
sexual conduct and credibility. Such expectations may
shift attention away from the alleged conduct and toward the character of the
complainant. The literature is therefore relevant to the treatment of victims
during adjudication.
The significance of this
scholarship extends beyond sexual offences. A trial should assess evidence and
law rather than decide whether a complainant behaves like an expected “good
woman” or whether an accused person fits an expected image of masculinity.
Gender-sensitive adjudication therefore requires both protection from
stereotypes and fidelity to the evidentiary burden.
4.
Gender Bias at the Police and Investigation Stage
Nirvikar Jassal’s research connects
police complaints with court records and examines how victim gender relates to
justice delivery. The study is important because it treats justice as a chain
of institutional decisions rather than a single courtroom event. The related
research on all-women police stations also questions whether specialised
institutions automatically improve outcomes in every setting.
The findings are relevant to the
present study because institutional design must be assessed through actual
consequences. A specialised unit may increase confidence for some complainants
but may also create practical barriers or encourage counselling and reconciliation instead of
prosecution in particular circumstances. The literature therefore supports
outcome-based evaluation of reforms.
5.
Gender Neutrality, Criminal-Law Reform and Unrecognised Victims
Recent discussions on the Bharatiya
Nyaya Sanhita, together with the Justice J.S. Verma Committee’s reform
framework, show the continuing need to connect substantive protection with
institutional accountability. Scholarship also notes that male, transgender and
other gender-minority victims may fall
outside traditional legal assumptions. At the same time, gender-neutral reform
cannot ignore structural violence faced by women.
The five selected bodies of
literature together reveal a common issue: gender bias appears at multiple
institutional stages and does not always operate in one direction. The present
study builds on this literature by connecting theory, law and institutional
practice within one five-chapter analysis of the criminal justice process.[6]
1.2
RESEARCH GAP, OBJECTIVES AND
QUESTIONS
1.3
Research Gap
Existing literature is divided
across particular stages and categories. Some studies focus on women’s access
to justice, others on gender stereotyping, female offending, police
institutions or gender neutrality. Fewer studies connect reporting, investigation,
prosecution, trial, sentencing and rehabilitation as one continuous
criminal-justice chain. This publication addresses that fragmentation through a
system-wide approach.
A second gap concerns victims and
accused persons. Studies of violence against women focus mainly on
under-protection and victim-blaming, while discussions of neutrality often
focus on male or transgender victims and accused persons. The present analysis
places both concerns within the same constitutional framework while recognising
that their experiences are not identical. Intersectional factors such as caste,
class and economic dependence are also treated as relevant to access.
1.4
Research Objectives
·
To understand the concept and forms of gender bias within the Indian criminal
justice system.
·
To examine
gender bias at reporting, investigation, prosecution, trial, sentencing, imprisonment and
rehabilitation stages.
·
To analyse the constitutional and statutory framework
relating to equality
and gender justice.
·
To examine
the position of women, men, transgender persons and other individuals as victims,
witnesses and accused persons.
·
To identify
institutional gaps and suggest reforms
consistent with substantive equality and fair procedure.
Research Questions
The study asks where gender
assumptions enter the criminal process, how they influence institutional
decisions, whether current law sufficiently protects equality and dignity, and
how the system can protect genuine
victims while preserving the presumption of innocence and fair trial rights.[7]
1.5
METHODOLOGY AND LIMITATIONS
1.5
Research Methodology
The study adopts a doctrinal and
analytical methodology. It examines constitutional provisions, criminal statutes, judicial decisions,
committee reports, academic literature and relevant empirical research. No
independent field survey, questionnaire or personal interview is undertaken.
Primary materials include the
Constitution of India, the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik
Suraksha Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023, the Protection
of Women from Domestic Violence Act, 2005, prison-related rules and policies,
Supreme Court and High Court decisions, and recognised committee reports.
Secondary materials include books, journal articles, legal commentaries and
empirical studies.
The materials are analysed to
identify the relationship between formal legal rules and their practical
operation. Particular attention is given to equality, dignity, victim
protection, evidence, fair procedure and the position of accused persons.
International human-rights materials are treated only as supplementary
benchmarks.
1.6
Limitations of the Study
·
The study is
doctrinal and analytical and does not contain
independent field data.
·
The principal focus is the Indian criminal justice system.
·
Gendered experiences vary by offence,
institution and social circumstances; the study does not treat all members of a gender as having
identical experiences.
·
Discussion of false or exaggerated allegations concerns legal and institutional implications and does not assume
that complaints by women are generally false.
CHAPTER II – CONCEPTUAL, CONSTITUTIONAL AND LEGAL FRAMEWORK
2.1
Meaning and Nature
of Gender Bias
Gender bias refers to assumptions,
practices or institutional responses that treat a person differently because of
gender, whether openly or indirectly. In criminal justice, bias can arise in
reporting, credibility assessments, investigation, prosecution, adjudication,
sentencing or prison administration. It may be favourable, unfavourable, protective, paternalistic or
exclusionary, but in each form it can affect equal access to justice.
2.2
Formal Equality and Substantive Equality
Formal equality asks whether the
same legal rule is applied to people in the same way. Substantive equality asks
whether the legal and institutional structure actually responds to existing
disadvantage. This distinction matters because identical procedures may not
remove barriers produced by poverty, dependence, social stigma, violence or
institutional insensitivity.
The study therefore does not treat
“same treatment” as the only measure of fairness. Specific protection may be
justified where a group faces recognised structural disadvantage. At the same
time, protection should not become a permanent assumption of weakness or
credibility. Substantive equality requires both responsive protection and
individualised legal decision-making.
2.3
Gender Stereotyping
Stereotyping occurs when
institutions rely on assumed characteristics of men or women rather than the
evidence and circumstances of the individual case. Examples include assumptions
that women should behave modestly, that men should be physically dominant, or
that a complainant’s conduct determines whether an allegation deserves belief.
Such assumptions can distort investigation and adjudication.[9]
2.4
FEMINIST JURISPRUDENCE, CRIMINOLOGY AND INTERSECTIONALITY
2.4
Feminist Jurisprudence
Feminist jurisprudence asks how legal rules are shaped by social power and
whether supposedly neutral rules reproduce existing
inequality. In criminal justice, this perspective directs attention to
under-reporting, victim-blaming, credibility assumptions and the institutional
conditions that may prevent women from receiving equal protection. It also
cautions against treating protective laws as sufficient without examining
implementation.
2.5
Feminist Criminology
Feminist criminology expands the
study of crime by examining gendered patterns of victimisation, offending and
punishment. It challenges accounts that treat men as the default offenders and
women as exceptional subjects. The approach is useful because it examines not
only why crime occurs but also how institutions define, process and punish
crime.
2.6
Intersectionality
Gender rarely operates
alone. Caste, class, economic dependence, disability, age and social position
can influence the ability to report an offence, obtain legal assistance
and continue with proceedings. Two people of the same gender may therefore
experience the criminal justice system differently because they occupy different social and economic
positions.
2.7
Protective Discrimination and Paternalism
Protective measures may be
necessary where evidence of structural disadvantage exists. However, protection can become paternalistic when institutions
assume that women need control
rather than equal agency. The challenge is to design
protection that increases safety and access without restricting autonomy or
creating automatic presumptions.
2.8
Gender-Responsive and Gender-Neutral Justice
Gender-responsive justice
recognises that different groups may face different forms of disadvantage.
Gender-neutral justice emphasises equal legal recognition regardless of gender.
The study treats these as
complementary goals rather than mutually exclusive choices: responsiveness
addresses unequal starting conditions, while neutrality protects against
arbitrary treatment of individuals.[10]
2.9
CONSTITUTIONAL GUARANTEES
2.9
Article 14 – Equality Before
Law
Article 14 provides the central
constitutional commitment to equality before law and equal protection of the
laws. In the context of gender bias,
the principle requires that distinctions based on gender
have a legitimate legal basis and do not become arbitrary assumptions
about individuals. The key question is therefore whether a distinction responds
to a genuine constitutional objective or merely reflects stereotype.
2.10
Articles 15 and 16 – Non-Discrimination and Equality of
Opportunity
Article 15 addresses discrimination
on specified grounds and also permits constitutionally recognised protective measures. Article 16 concerns equality of opportunity in public employment. Together, these
provisions reinforce the principle that gender cannot be used as an arbitrary
ground of exclusion. They also explain why substantive equality may require
appropriately designed measures to address structural
disadvantage.
2.11
Article 21 – Dignity, Liberty
and Fair Procedure
Article 21 protects life and
personal liberty and has been interpreted through a wider framework of dignity
and fair procedure. Criminal justice decisions affect liberty, reputation,
bodily integrity and personal autonomy. Gender-sensitive justice must therefore
ensure that victims are treated with dignity while accused persons receive a
lawful and fair process.
2.12
Constitutional Balance
The constitutional framework does
not require the legal system to choose between victims and accused persons. It
requires justice to be administered through equality, dignity and fair
procedure. The present study uses these principles as the common standard for
evaluating gender-specific protection, neutrality,
institutional discretion and evidentiary decision-making.[11]
2.13
CONTEMPORARY CRIMINAL-LAW FRAMEWORK
2.13
Bharatiya Nyaya Sanhita,
2023
The Bharatiya Nyaya Sanhita,
2023 forms the present substantive criminal-law framework that replaced
the earlier Indian Penal Code structure. For gender justice, the relevant
inquiry is how offences, defences, punishments and gender-specific protections
are defined and interpreted within the new framework. The transition also
creates a need to revisit assumptions developed under the earlier code.
2.14
Bharatiya Nagarik Suraksha
Sanhita, 2023
The Bharatiya Nagarik Suraksha
Sanhita, 2023 provides the contemporary procedural framework for criminal investigations and trials. Gender bias may
therefore appear not only in substantive offences
but in registration, investigation, arrest, bail, prosecution and
procedural compliance. The practical operation of procedural safeguards is as
important as the formal wording of the statute.
2.15
Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam,
2023 governs evidentiary principles in the contemporary framework. Evidence is
central to the gender-bias debate because credibility may be influenced by
stereotypes about sexual history, conduct, masculinity or femininity. Evidence
law must therefore be applied through relevance, reliability and lawful
procedure rather than social expectation.
2.16
Gender-Specific Protective Laws
India also has special laws
designed to address particular forms of gendered harm, including domestic
violence and other offences affecting women. Such laws respond to structural
problems, but their operation must remain consistent with constitutional principles.
Protection is meaningful when it improves safety and access to remedies without
displacing the requirement that individual allegations be examined on evidence.[12]
2.17
IMPORTANT JUDICIAL
DEVELOPMENTS
Air India v.
Nargesh Meerza
The decision is an important early
example of judicial scrutiny of gender-based employment conditions. Its continuing relevance to the present topic is the
recognition that institutional rules cannot be justified merely by traditional
assumptions about women’s roles.
Vishaka v. State of Rajasthan
The case is a landmark
constitutional response to workplace sexual harassment. It linked gender
justice with dignity, equality and institutional duties, showing that courts
may require protective norms where existing law is inadequate.
Anuj Garg v. Hotel Association of India
The Court examined a protective
restriction on women’s employment and rejected the idea that protection can
rest on stereotypes about women’s vulnerability. The decision is relevant to
the distinction between genuine protective discrimination and paternalism.
Independent Thought
v. Union of India
The judgment reflects the
constitutional importance of protecting bodily integrity and dignity in the
context of sexual offences and marriage. It is relevant to the study because
criminal-law categories must remain
consistent with constitutional rights.
Nipun Saxena v.
Union of India
The case is significant for
protection of survivors of sexual offences and the treatment of information
that may identify them. It demonstrates that procedural justice includes
dignity and privacy, not only punishment of offenders.
Aparna Bhat v. State of Madhya
Pradesh
The decision addressed gender
stereotypes in judicial reasoning and cautioned against approaches that treat
women through social assumptions about compromise or expected conduct. It is
directly relevant to the problem of stereotyping in adjudication.
Joseph Shine
v. Union of India
The case is significant for
personal autonomy and equality within marriage. It rejects legal assumptions that treat women as subordinate or as
the property of men, and therefore strengthens the constitutional foundation
for gender-equal criminal law.[13]
CHAPTER III – GENDER BIAS IN POLICE,
INVESTIGATION AND PROSECUTION
3.1
Complaint Registration and FIRs
The first institutional contact
often shapes the rest of a criminal case. A complaint that is not promptly
recorded, or is treated as a private family dispute, may delay evidence
collection and discourage the complainant from pursuing the matter. Gender bias
may enter through assumptions about sexual morality, domestic roles, family
honour or the expected behaviour of men and women.
For women complainants, barriers
may arise from fear, social pressure, economic dependence and insensitive
treatment. For male or transgender complainants, the difficulty may arise from
the belief that certain forms of
violence cannot happen to them or should not be reported. The common
requirement is institutional responsiveness to the facts rather than a pre-set
view of who can be a victim.
3.2
Police Discretion and Investigation
Police officers exercise discretion
in recording information, interviewing witnesses, collecting evidence, selecting investigative
priorities and communicating with victims. Discretion is unavoidable, but
unchecked discretion can reproduce social stereotypes. Investigation should
therefore focus on relevant facts, preserve evidence, document reasons for
procedural decisions and avoid conclusions based on gendered assumptions.
Insensitive investigation can also
create secondary victimisation. Repeated questioning, intrusive comments or
unnecessary publicity may make complainants feel that the system itself is
another source of harm. At the same time, an investigation must not become
one-sided. Evidence concerning the accused must be collected and tested
objectively so that the procedure remains fair.[14]
3.3
STEREOTYPING, SPECIALISED INSTITUTIONS AND ACCESS
TO JUSTICE
3.3
Victim Credibility and Gender Stereotypes
Police credibility assessments may
be affected by assumptions about how a “real” victim should behave. Delay in
reporting, continued contact with an accused person, emotional responses or
lack of visible injury may be interpreted through stereotype rather than
circumstance. Such indicators are not substitutes for evidence. The same principle applies to male victims whose masculinity
may wrongly be treated as inconsistent with vulnerability.
3.4
Women Police Stations
and Help Desks
Specialised police stations and
help desks are intended to make reporting more accessible. Their value depends
on how they function in practice. Jassal’s research on all-women police
stations indicates that institutional specialisation does not automatically
produce better justice outcomes. In some situations, additional travel burdens
or a preference for counselling and reconciliation may create unintended effects.
3.5
Counselling, Mediation and Reconciliation
Counselling can be helpful
where the complainant freely
seeks it and where reconciliation is legally and factually
appropriate. It becomes problematic when it is used to discourage a victim from
pursuing a lawful complaint or when social expectations of maintaining family
relationships override safety and autonomy. The decision to continue criminal
proceedings must remain tied to law and the circumstances of the case.
3.6
Intersectionality and Institutional Access
Economic dependence, caste,
location and access to transport or legal assistance can affect whether a
person is able to approach a police station and continue with the case.
Gender-responsive administration
therefore requires attention to practical barriers, not merely formal equality.[15]
3.7
PROSECUTION AND INSTITUTIONAL ACCOUNTABILITY
3.7
Prosecutorial Discretion
Prosecutors influence how a case is
presented, which evidence is relied upon and how legal issues are framed.
Gender bias can arise when prosecutors dismiss a complainant as unreliable
because of stereotype, or when they treat an allegation as sufficient without
carefully testing the evidence. The proper approach is to protect the public
interest through a fair and reasoned assessment of the case.
3.8
Witness Handling and Case
Preparation
Witnesses should receive clear
information, respectful communication and adequate protection from unnecessary
pressure. Poor case preparation may increase delays, repeated adjournments and
inconsistencies that are then unfairly attributed to the victim. The system
should distinguish between genuine contradictions
and the ordinary effects of trauma,
fear or passage of time, while still preserving
evidentiary scrutiny.
3.9
Institutional Accountability
Gender-sensitive policies are
meaningful only when institutions are accountable for implementation.
Record-keeping, supervision, complaint mechanisms and reasoned decision-making
help reduce the space for arbitrary treatment. Training should not simply teach
officers to “believe women” or “doubt allegations”; it should teach them to
identify relevant facts, avoid stereotypes and comply with law.
3.10
Fairness to Accused
Persons
The accused person is also part of
the justice process. Arrest, public disclosure, social stigma and loss of employment or family relationships may
occur before guilt is established. Investigation and prosecution must therefore
remain independent of gender-based assumptions and must not replace proof with moral judgment.[16]
3.11
CRITICAL ASSESSMENT OF THE POLICE
AND PROSECUTION STAGE
The police and prosecution stages
reveal why legal reform cannot be assessed only by counting protective
statutes. The practical question is whether a person can enter the system, be
heard respectfully, receive an impartial investigation and have relevant
evidence preserved. A system may have strong laws and still produce weak
justice if institutional practices discourage reporting or fail to investigate
properly.
Gender bias can also arise from
institutional efficiency concerns. Officers may prefer quick compromise,
classify matters according to familiar social categories or give greater
attention to cases they regard as serious. These practices can produce unequal
outcomes when gendered expectations influence which complaints are treated as
credible or urgent.
The solution is not to remove all
specialised mechanisms. Specialised assistance may be necessary where a group
faces known barriers. The stronger approach is to combine special access with
transparent standards: prompt registration, documented investigative steps,
evidence-based decision-making, protection from intimidation and meaningful
supervision.
A balanced framework must also
recognise the position of the accused. Safeguards against unlawful arrest,
coercion, fabricated evidence and prejudicial publicity are not obstacles to
victim protection. They are part of the constitutional structure within which
criminal justice must operate. Institutional fairness is therefore the
connecting principle between victim rights and accused rights.[17]
CHAPTER IV – GENDER BIAS IN TRIAL,
SENTENCING, IMPRISONMENT AND REHABILITATION
4.1
Evidence and Credibility
The trial stage requires the court
to decide whether the prosecution has proved the case according to law. Gender
bias may enter when credibility is assessed through social stereotypes. A
complainant’s clothing, previous relationships, marital status or manner of
speaking should not become substitutes for legal analysis. At the same time,
protection of a complainant does not remove the accused’s right to challenge
evidence through lawful procedure.
4.2
Rape Myths and Victim-Blaming
Rape myths are common social
beliefs about how a genuine victim should behave. Courts and lawyers must avoid
reasoning based on these myths. Delay in reporting, silence, fear, continued
association or lack of physical resistance cannot by themselves determine
truth. The proper focus is the totality of the admissible evidence and the
applicable law.
4.3
Cross-Examination and Secondary
Victimisation
Cross-examination is necessary to
test evidence, but the process should not become a source of humiliation.
Irrelevant attacks on character or dignity may discourage reporting and distort
the fact-finding process. The challenge is to preserve an accused person’s
right to test the prosecution case while
preventing questions that rest only on gender stereotypes or irrelevant moral
judgment.[18]
4.4
JUDICIAL STEREOTYPING AND DELAY
4.4
Judicial Stereotyping
Judicial reasoning should be based
on law, facts and evidence, not assumptions concerning gender roles.
Inappropriate comments about marriage, compromise, modesty or expected
behaviour may weaken confidence in the justice system.
The importance of Aparna Bhat lies
in its emphasis that courts
should avoid stereotypes while dealing with women and sexual-offence
allegations.
4.5
Delay in Criminal Proceedings
Delay affects victims and accused
persons differently but seriously. A victim may face repeated appearances,
social pressure and emotional strain, while an
accused person may live for years
under the uncertainty of proceedings. Delays can also weaken evidence and
reduce confidence in outcomes. Gender-sensitive justice therefore includes
timely procedure, not merely stronger substantive offences.
4.6
Presumption of Innocence and Fair Trial
The presumption of innocence
remains central to criminal adjudication. A serious allegation deserves a
serious investigation, but seriousness does not eliminate the requirement of
proof. The court must protect complainants from humiliation and also ensure
that the accused is not convicted because of moral condemnation or social
pressure.
4.7
False, Exaggerated and Strategically
Motivated Allegations
The legal system may encounter
allegations that are false, exaggerated or strategically motivated, but such possibilities should be handled through evidence rather than generalisations
about any gender. The appropriate
institutional response is careful investigation, reasoned prosecution and a
trial that tests competing accounts. The existence of some false complaints
cannot justify treating genuine complaints as inherently doubtful.[19]
4.8
SENTENCING AND IMPRISONMENT
4.8
Gender and Sentencing
Sentencing decisions may be
influenced by social assumptions concerning motherhood, dependency,
masculinity, family responsibility, or vulnerability. Some consideration of
individual circumstances is legitimate when law permits it, but the decision
should not rest on a stereotyped idea that women are naturally less blameworthy
or men are naturally more dangerous.
4.9
Female and Male Offenders
Female offenders may be judged
through the lens of expected femininity, while male offenders may encounter
assumptions that aggression is natural to men. Both forms of stereotyping can
affect perceptions of culpability and rehabilitation. A fair system should
focus on the offence, evidence, statutory framework and relevant individual
circumstances.
4.10
Women Prisoners and Prison Conditions
Women
prisoners may have specific needs relating to health, safety, pregnancy,
childcare and social dependence. These needs require institutional
accommodation, but the objective should be dignity and lawful treatment rather
than paternalistic control. The same principle extends to prisoners whose
gender identity or social circumstances place them at particular risk.
4.11
Transgender Persons in
Prisons
Transgender prisoners may face safety,
placement and access-to-services concerns when prison systems
are organized around a rigid male-female model. The focus should be individual
safety, dignity and lawful treatment. Institutional policies should avoid
automatic placement based solely on stereotype
and should provide mechanisms to address particular risks.[20]
4.12
LEGAL AID, MOTHERHOOD, ECONOMIC
DEPENDENCE AND REHABILITATION
4.12
Legal Aid and Access to Justice
Access to justice depends on more
than the existence of courts. Legal representation, information, transport,
language, documentation and financial capacity can determine whether a person
can pursue a case effectively.
Gender bias becomes more severe when
institutions assume that a person
can continue litigation without considering practical constraints.
4.13
Motherhood and Economic
Dependence
Motherhood and economic dependence
may affect the ability of a victim to leave a violent environment or participate in repeated proceedings.
These factors should not be used to pressure a person into reconciliation, but
they may be relevant to the design of support, shelter, legal assistance and rehabilitation.
4.14
Rehabilitation and Reintegration
Criminal justice should not end at
conviction. Rehabilitation and reintegration help reduce repeated offending and
restore lawful social participation. Gender-responsive rehabilitation may
include education, counselling, family support, employment assistance and
protection from violence. The programme should be based on individual needs
rather than assumptions about gender.
The trial, sentencing and prison
stages therefore demonstrate that equality is an ongoing institutional
obligation. Gender bias may appear in the language of judgments, the treatment of witnesses, the
length of proceedings, conditions of imprisonment or the opportunities
available after release.[21]
CHAPTER V – GENDER
NEUTRALITY, FINDINGS AND RECOMMENDATIONS
5.1
Male Victims and Unrecognized Victims
A
gender-just criminal justice
system should recognize that men can experience violence and that social expectations may discourage them
from reporting it. Male victims of sexual or domestic violence may face
disbelief because masculinity is associated with physical strength or
self-protection. The problem is not
solved by assuming that men and women experience violence in the same way; it
is addressed by ensuring that victimhood is determined by facts rather than
stereotype.
5.2
Transgender and Gender-Minority Victims
Transgender persons and others who
do not fit traditional categories may experience gaps in reporting,
documentation, protection and support. Legal institutions need procedures that
recognise dignity and identity while retaining clear standards for evidence and
proof. Inclusion is therefore both a substantive equality concern and an
administrative design issue.
5.3
Limits of Complete
Gender Neutrality
Complete neutrality may appear
attractive because it promises identical rules for everyone, but it may leave
structural disadvantages unaddressed. Women continue to face particular forms
of gender-based violence and institutional barriers. The stronger constitutional
approach is differentiated protection where justified, combined with equal
procedural safeguards for every individual accused or victim.
5.4
Alleged Misuse of Protective Laws
Claims of misuse should be
analysed case by case. A legal
system can recognise the possibility of false, exaggerated or strategic allegations without turning
that possibility into a general assumption about women complainants. The proper
safeguard is evidentiary scrutiny, reasoned investigation and fair trial, not a presumption that one class
of complainants is unreliable.[22]
5.5
MAJOR FINDINGS
AND RECOMMENDATIONS
5.5
Major Findings
·
Gender bias can
enter at every
stage of criminal
justice rather than at a single point.
·
Women may face victim-blaming, under-reporting, institutional insensitivity and delays.
·
Men, transgender persons and other groups may face legal gaps, social stereotypes or recognition
problems as victims.
·
Accused persons
may be affected by pre-trial
stigma and gendered assumptions before
guilt is established.
·
Specialised institutions can help, but their effectiveness depends on implementation and outcomes.
·
Substantive equality
provides a more balanced framework than absolute neutrality or absolute gender
specificity.
5.6
Recommendations
·
Ensure prompt and respectful registration of complaints and document reasons
for significant investigative
decisions.
·
Provide regular
training on gender
stereotyping, evidence-based investigation and victim dignity.
·
Strengthen supervision, complaint mechanisms and accountability for police and prosecutorial
decisions.
·
Protect the privacy and dignity of victims while preserving lawful defense rights and fair cross-examination.
·
Improve legal aid, witness
support, timely hearings
and practical assistance for persons facing economic or social barriers.
·
Develop inclusive procedures for male,
transgender and other
victims without weakening protections addressing
structural violence against women.
·
Review prison
and rehabilitation systems
through individual needs,
dignity, safety and reintegration
rather than gender stereotypes.[23]
5.7
CONCLUSION AND SELECTED REFERENCES
5.7 Conclusion
Gender bias in the criminal justice system is not limited to one
law, one institution or one gender. It can appear when a complaint is
first received, when evidence is collected, when credibility is assessed, when
cases are prosecuted, when courts reason about conduct, and when prisoners are
treated after conviction. The problem is therefore institutional as well as
doctrinal.
The analysis also shows
why the debate should not be framed as women
versus men. Women may need specific protection because of structural
forms of violence and inequality, while men, transgender persons and other
individuals may face legal or social barriers that remain under-recognised. The
constitutional objective is to combine protection from structural disadvantage
with equal dignity, evidence-based decision-making and fair procedure.
A gender-responsive criminal
justice system should therefore avoid two extremes: ignoring structural gender
inequality and allowing gender stereotypes to replace individualised legal
analysis. Substantive equality provides a useful framework because it permits
justified protection while preserving the presumption of innocence, procedural
fairness and equal respect for every person.
The continuing development of the
BNS, BNSS and BSA creates an opportunity to apply these principles across
contemporary criminal justice. The final measure of reform should not be only
the number of protective provisions enacted, but whether people can enter the
system safely, receive impartial investigation, participate with dignity and
obtain decisions based on law and evidence.
Selected References
Constitution of India. Bharatiya
Nyaya Sanhita, 2023. Bharatiya Nagarik Suraksha Sanhita, 2023. Bharatiya Sakshya
Adhiniyam, 2023. Protection
of Women from Domestic Violence
Act, 2005. Justice
J.S. Verma Committee, Report of the
Committee on Amendments to Criminal Law (2013). Frances Heidensohn, Women and
Crime (2nd edn, Macmillan 1996). Carol Smart, Women, Crime and Criminology: A
Feminist Critique (Routledge & Kegan Paul 1976). Nirvikar Jassal, selected
studies on victim gender, justice delivery and all-women police stations.
Tannvi and S Narayana, “The Challenge of Gender Stereotyping in Indian Courts”
(2022). Devakumar Jacob, “Re-Imagining Gender Justice Under the Bharatiya Nyaya
Sanhita” (2024).[24]
[1] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (Government of India, 2013).
[2] Bharatiya Nyaya Sanhita,
No. 45 of 2023; Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023; Bharatiya Sakshya Adhiniyam,
No. 47 of 2023.
[3] The seven
cases below are selected from the
case list contained in the supplied
publication.
[4] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (Government of India, 2013).
[5] Frances Heidensohn, Women and Crime (2nd edn, Macmillan 1996);
Carol Smart, Women,
Crime and Criminology: A Feminist Critique
(Routledge & Kegan Paul 1976).
[6] Nirvikar Jassal,
“Does Victim Gender Matter for Justice Delivery? Police and Judicial Responses
to Women’s Cases in India” (2023) 117 American
Political Science Review;
Nirvikar Jassal, “Gender, Law Enforcement, and Access
to Justice: Evidence
from All-Women Police Stations in India” (2020) 114 American Political
Science Review.
[7] The research-gap formulation consolidates the gaps identified in the supplied publication: institutional
fragmentation, separate treatment of victims and accused persons, limited
intersectional integration,
outcome gaps in reforms and the need to reassess the contemporary criminal-law framework.
[8] Bharatiya Nyaya Sanhita,
No. 45 of 2023; Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023; Bharatiya Sakshya Adhiniyam,
No. 47 of 2023.
[9] Constitution of India, arts 14, 15 and 21,
as the basic constitutional
framework for equality, non-discrimination, dignity and personal liberty.
[10] Frances Heidensohn, Women and Crime
(2nd edn, Macmillan 1996); Carol Smart,
Women, Crime and Criminology: A Feminist Critique (Routledge &
Kegan Paul 1976).
[11] Constitution of India,
arts 14, 15 and
21.
[12] Bharatiya Nyaya Sanhita,
No. 45 of 2023; Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023; Bharatiya Sakshya Adhiniyam, No. 47 of 2023; Protection of Women from
Domestic Violence Act, 2005.
[13] The seven decisions listed here are selected
for their relevance to equality, dignity, stereotyping,
victim protection and autonomy in
the supplied publication.
[14] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (Government of India, 2013).
[15] Nirvikar Jassal, “Gender, Law Enforcement, and Access to Justice:
Evidence from All-Women
Police Stations in India” (2020) 114 American Political Science
Review.
[16] Constitution of India, arts 14 and 21; Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal
Law (Government of India, 2013).
[17] Nirvikar Jassal, “Does Victim Gender Matter for Justice Delivery? Police and Judicial Responses to Women’s Cases in India” (2023) 117 American Political Science Review.
[18] Nipun Saxena
v. Union of India,
(2018), on protection of survivors and limits concerning disclosure of identifying inform ation, as
selected in the supplied publication.
[19] Aparna Bhat v. State of Madhya Pradesh
(2021), as discussed in the
supplied publication for the issue
of gender stereotyping in judicial reasoning.
[20] The supplied
publication identifies prison
conditions, legal aid, rehabilitation and the position
of transgender persons as areas requiring gender-sensitive analysis.
[21] The supplied
publication identifies legal aid,
motherhood, economic dependence, prison conditions and rehabilitation as l inked components of access to justice.
[22] Joseph Shine v. Union of
India (2018), on autonomy,
equality and rejection of legal assumptions that treat women as
subordinate within marriage.
[23] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (Government of India, 2013); the recommendations also synthesise the gaps identified in the
supplied publication.
[24] The references are drawn from the
source publication supplied for editing
and retained in condensed form.
How to Cite This Article
VIJAY SRIRAM KS, A critical analysis on gender bias in the criminal justice system., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 833-856. Available at: https://www.whiteblacklegal.co.in/details/a-critical-analysis-on-gender-bias-in-the-criminal-justice-system
Author & Publication Record
Authors: VIJAY
SRIRAM KS
Registration ID: 107178 | Published Paper ID: WBL7178
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 833-856
Full Text Preview
Open in New Tab
Copied