In a plea challenging the Madhya Pradesh High Court order of getting a Rakhi band tied on the sexual abuser’s wrist by the survivor, the petitioners have sought directions from Supreme Court against this order which is a gross trivialisation of the trauma suffered by women and children.
The plea by nine lawyers including senior advocate Aparna Bhat contended that such judgments from High Courts would end up trivialising such heinous offences and that “there is a strong likelihood that such observations and directions may result in normalising what is essentially a crime and has been recognised to be so by the law.”
According to LiveLaw, the petitioners have stated that “no observation/condition should be made which initiates and encourages compromise that normalises an otherwise heinous crime thus indicating a mindset, which accepts such offences. It is further submitted that no observation/condition should be made which notes that the best option for the victim is to marry the accused.”
The petitioners also listed a series of cases where the courts have imposed strange conditions during grant of bail trivialising the offence. In Ravi Jatav vs The State of Madhya Pradesh (MCRC-13734-2020), Justice Sheel Nagu granted bail to an accused for a crime under Sections 376-D (sexual intercourse by hospital staff against women), 366 (kidnapping), 506 (criminal intimidation), 34 (act done by people in furtherance of common intention) of the Indian Penal Code with one of the conditions being that the petitioner shall register themselves with the District Magistrate, Datia as “Covid-19 Warriors” by entering his name in a Register named as Covid-19 Warrior Register.
The High Court in Rakesh B. V. State of Karnataka (Crl Pet. No. 2427 of 2020), granted bail to an accused with certain observations about the victims conduct like not approaching the court at the earliest point of time, meeting the accused late night, agreeing to consume alcohol with him, etc.
In Vikas Garg v. State of Haryana (2017 4 RCR CRL 924), the Punjab & Haryana High Court had granted bail to three accused persons in a crime under Sections 376D (sexual intercourse by hospital staff against women), 376 (punishment for rape), 292 (sale of obscene books etc), 120-B (criminal conspiracy), 506(criminal intimidation) of the Indian Penal Code and Section 67 (transmitting obscene material) of the Information Technology Act, 2000 by making observations regarding the victim’s ‘casual relationships’, ‘promiscuous attitude’ and ‘voyeuristic mind’.
The plea reads that, “It is submitted that no observation/condition should be made which grants bail on the ground that the victim is of ‘loose character’ or is ‘habituated to sexual intercourse’.
LiveLaw reported that in this background the petitioners have sought directions for high courts, sessions courts or the courts of Metropolitan Magistrates or any special court ensuring that in every order that they pass in relation to cases of sexual violence against women and children, there should be no observation made, conditions imposed or directions passed which are extraneous to the facts and circumstances of the case, including any such observation, condition or direction:
1. “Which trivialises/tends to trivialise the seriousness of the offence.
2. Which reflects bias and affects the dignity of a woman.
3. Which affects the conduct of the trial in a fair and unbiased manner.
4. Which permits the accused to meet/have access to the victim and her family members.
5. Which initiates and encourages compromise that normalizes an otherwise heinous crime thus indicating a mindset, which accepts such offences.
6. Which takes note of the fact that the victim has attained majority (in POCSO cases) and that the accused has offered to marry her.
7. Which notes that that the best option for the victim is to marry the accused
8. Which allows bail in favour of an accused for the purpose of solemnizing marriage with the victim.
9. Which grants bail on the ground that the victim is of ‘loose character’ or is ‘habituated to sexual intercourse’
10. Which directs marriage of the accused with the complainant/victim on an assumption to grant “legitimacy” to a child born as a consequence of the violence.
11. And any other condition which is extraneous to the offence and the requirement of the bail.”
The Supreme Court Bench headed by Justice A M Khanwilkar and also including Justice B.R. Gavai, on October 16 had issued a notice to the Attorney General K K Venugopal’s office to assist in this plea.
In the written submissions submitted to the court by the Attorney General, he suggested that increasing women judges in the judiciary could help in correcting the non-empathetic approach of judges in cases of sexual violence, according to Bar and Bench.
“Improving the representation of women in the judiciary could also go a long way towards a more balanced and empathetic approach in cases involving sexual violence. For instance, this Court (SC) only has 2 women judges, as against a sanctioned strength of 34 judges. There has never been a female Chief Justice of India”, said the AG in his submissions filed on December 1.
The AG suggested the following measures to improve the strength of women in judiciary:
a) Direct collection of data to determine the number of women judges in the lower judiciary
b) Direct collection of data to determine the number of women judges in tribunals
c) Direct collection of data to determine number of seniors designates by all High Courts, year wise.
d) Ensure greater representation of women at all levels of the judiciary, including the Supreme Court.
On July 30, 2020, Justice Rohit Arya (Indore Bench) of the Madhya Pradesh High Court released the accused, arrested for sexual assault, on bail under an outrageous condition – that he visits the home of the complainant and requests her to tie a Rakhi around his wrist and that he “promise to protect her to the best of his ability for all times to come!”
Justice Rohit Arya also directed the accused to furnish a personal bond in the sum of Rs.50,000.
The accused was also directed to pay Rs.11,000 to the complainant “as a customary ritual usually offered by the brothers to sisters on such occasions and shall also seek her blessings.” The court also directed the accused to tender “Rs.5,000 to the son of the complainant for purchase of clothes and sweets.”
On September 20, 2020 nine lawyers including senior advocate Aparna Bhat challenged the bail order of July 30 in the Supreme Court through Advocate on Record, Pukhrambam Ramesh Kumar asking for a stay on the condition for bail imposed. They said that, “The Hon’ble High Court ought to have been cognisant and sensitive to the fact that in a case involving a sexual offence having been committed against a woman, it is immeasurably difficult for the survivor to lodge an FIR and pursue a criminal case against the accused at the threshold.”
The matter is expected to be heard today, December 3.