The Supreme Court has set aside bail conditions set out by Madhya Pradesh High Court requiring the accused to get a rakhi tied by the complainant in a case of sexual assault. In the process, the bench comprising Justices AM Khanwilkar and Ravindra Bhat referred to the many such orders passed by high courts and trial courts displaying paternalistic and misogynistic attitudes and addressed this by giving specific directions to the regard.
The petitioners had sought directions that all the High Courts and trial Courts be directed to refrain from making observations and imposing conditions in rape and sexual assault cases, at any stage of judicial proceedings, that trivialise the trauma undergone by survivors and adversely affect their dignity. They further submitted that no observation/condition should be made which permits the accused to meet/have access to the survivor and her family members
The court wished to address a wider canvas of entrenched paternalistic and misogynistic attitudes reflected in judicial orders and judgements. The court noted that under Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, the court has discretionary power to impose conditions while granting bail but they have to be in consonance with the other conditions in the provisions. The petitioners urged that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman’s honour and dignity.
Some recent instances, from the past year, cited of unacceptable bail conditions in sexual offences include:
· Ravi Jatav v. State of M.P: the accused was assigned work of Covid-19 disaster management
· Rakesh B. v. State of Karnataka: the High Court cast aspersions on the behavior of the complainant
· Mohan v. State & Samuvel v. Inspector of Police: Madras High Court had referred the case of rape of a minor to mediation
· Sopikul Sk. @ Safikul Islam v. State: High Court of Calcutta granted bail in POCSO case as prosecutrix had attained majority and the accused intended to marry her
· Gyanaranjan Behera v. State of Odisha: Orissa High Court in a POCSO case granted interim bail to the accused for the purpose of marrying the prosecutrix.
· Suraj Kushwah v. State of M.P: High Court granted temporary bail in a rape case so accused can marry prosecutrix
· Vikas Garg v. State of Haryana: High Court granted bail to 3 persons commenting on prosecutrix’s “casual relationships”, “promiscuous attitude”, “voyeuristic mind”
Courts and law enforcement as neutral authorities
The court observed that the role of courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding.
Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court.
The court said that women face a lot of challenges such as misogynistic society with entrenched cultural values and beliefs, bias, stereotypes and so on and reinforcement of the same in court utterances or orders impact fairness. The court also pointed out that while giving out orders, the judge is not only communicating with the parties before him but is also addressing the broader legal community.
The impugned order
The court then addressed the impugned bail order and opined, that using rakhi as a bial condition transforms molester into a brother by a judicial mandate and it dilutes and erodes the offence of sexual harassment. “The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be,” the court said.
The court said that furthering of rape myths and stereotypes by the judiciary, limits the emancipatory potential of the law. According to the bench, judicial stereotyping refers to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings. The court cited a ruling by the CEDAW committee whereby it held that ‘stereotyping affects women’s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence’.
The court deemed some factors to be irrelevant in a sexual offences case and as illustrations of an attitude which should never enter judicial verdicts:
· the survivor had in the past consented to such or similar act
· she behaved promiscuously
· by her acts or clothing, provoked the alleged action of the accused
· she behaved in a manner unbecoming of chaste or “Indian” women
· she had called upon the situation by her behavior
The court said that the instances spelt out in the above cited judgements are only illustrations and the whole idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning and Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system.
In the light of the several instances cited and to prevent any such instances in the future, the top court issued the following directions to all courts:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim.
(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. Discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises (such as marriage or mediation)
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
The bench also directed that Courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that
(i) women are physically weak and need protection;
(ii) women are incapable of or cannot take decisions on their own;
(iii) men are the “head” of the household and should take all the decisions relating to family;
(iv) women should be submissive and obedient according to our culture;
(v) “good” women are sexually chaste;
(vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
(vii) women should be the ones in charge of their children, their upbringing and care;
(viii) being alone at night or wearing certain clothes make women responsible for being attacked;
(ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;
(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and
(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman
The court further mandated and requested National Judicial Academy to devise a module on gender sensitization be included, as part of the foundational training of every judge, aimed at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny as also use of appropriate words and phrases. The court stated that the courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months and the training should also be given to Public Prosecutors and Standing Counsel.
The court also directed the Bar Council of India to discuss with universities on the courses to be taught at undergraduate level and to include topics on sexual offences and gender sensitization in the All India Bar Examination.
The court also set aside para 3 of the impugned order of Madhya Pradesh High Court. As a conclusion, the court once again emphasized the vital role of judges and stated that if they falter in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors.
The complete judgment may be read here:
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