On July 30, 2020 a Single – judge Indore Bench of the Madhya Pradesh High Court released Vikram Bagri, arrested for sexual assault, on bail in connection with a sexual assault case 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-Vishal for purchase of clothes and sweets.” Shri Vishal Patidar represented the accused whereas Shri Sudhanshu Vyas appeared for the respondent-State.
Bagri, who was in custody since June 2 in connection with an FIR against him at the Bhatpachlana Police Station in Ujjain district for offences including sexual harassment, assault of criminal force to woman with intent to outrage her modesty and criminal intimidation, is accused of entering the 30-year-old woman’s house in Ujjain on April 20 and molesting her.
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. The petitioners have 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.”
They add that the bail conditions is a “gross trivialization of the trauma suffered by the Complainant in the present case” and that this present case “is of particular concern since it has taken years to undo the damaging approach followed by Courts whereby cases involving sexual offences committed against women are attempted to be compromised by way of marriage or mediation between the accused and the survivor.”
This challenge was heard at the Supreme Court on October 16 before the Bench headed by Justice A M Khanwilkar and also including Justice B.R. Gavai who have agreed to hold a detailed hearing in the matter after senior advocate Sanjay Parekh, representing the 9 petitioners said the high court’s bail order had trivialized the offence of molestation.
The petitioners – Aparna Bhat, G.S. Veena, Kanaka Latha Olavatth, Susan Verita D’Silva, Lakshmi N.B, Lalita Sivaraman Iyer, Rama Ramachandra Iyer, Susmita Durg and Meenakshi K.C. have described themselves as “women who have confronted being objectified as young girls and women who have raised their voices against their own and others’ abuse at various times”. Six out of the nine petitioners have also put forward personal anecdotes of their daughters about misconduct by numerous men in the course of their academic and professional lives.
Since legally, only an aggrieved person can approach the court against an order, the petitioners requested the court to look into the larger issue of regressive directions issued by the Madhya Pradesh Court that tend to further infantilize women and trivialize sexual offences rather than question their locus standi. The petitioners also claimed that most cases of sexual assault end up in acquittal because the survivors turn hostile, either due to intimidation or inducement by families of the accused. They also fear that this order, which appears to move to a direction of a compromise, could make the complainant turn hostile during the trial.
The Bench issued a notice to the Attorney General K K Venugopal’s office to assist in this plea and slated the further hearing for November 2, 2020.
Similar shocking orders by Judges
Many judges have a poor a track record when it comes to delivering justice in sexual assault cases. Some have questioned the veracity of survivor’s claims resulting in fewer women to come forward and file complaints against their perpetrators. Justice Krishna S Dixit of the Karnataka High Court in Sri Rakesh v. State of Karnataka (Cri. App No. 2427 of 2020) on June 22, granted anticipatory bail to the alleged violator and remarked that “Nothing is mentioned by the complainant as to why she went to her office at night that is, 11.00 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; The explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman; that is not the way our women react when they are ravished.”
In another display of insensitivity, on July 10 one Chief Judicial Magistrate Mustafa Shahi in Araria District, Bihar held a rape survivor and two social activists in contempt and sent them to jail when she disagreed to sign the papers after having being disallowed to bring in the activists by her side while recording the witness statement under section 164 of the Code of Criminal Procedure. The woman was allegedly gang raped on July 6 and had approached the two activists to help in the legal fight. After the arrest, several lawyers addressed a letter to the Chief Justice and other judges of the Patna High Court signed by Indira Jaisingh, Prashant Bhushan, Rebecca John among others, seeking an “urgent and systemic changes in the treatment of survivors of the violent sexual crimes”.
The Wire reported that the lawyers claimed that “The remand into judicial custody is excessive and harsh given the circumstance. The survivor’s emotional state is extremely fragile and we feat that separation from her caregivers and incarceration will have an adverse effect on her health.” The survivor was released on July 17, but the bail plea for the two activists were rejected even though all of them were remanded in custody for the similar ‘crime’.
In Ashiq NA vs State of Kerala (2019 SCC OnLine Ker 1731) the Kerala High Court had quashed criminal proceedings against the accused in a rape case on grounds of larger interest of the victim when the accused entered into a matrimonial relationship with the victim. The history of courts burdening women to establish their rape claims as genuine and giving orders to resolve disputes with their perpetrators or dropping charges in order to maintain harmony in the marital lives of the victim and her violator is failing women in adjudication of sexual offences. Insinuating a compromise in such cases is absurd and spectacularly erroneous.