The Supreme Court on Thursday set aside and expunged portions of the Madhya Pradesh High Court order directing a man accused of outraging modesty to get a Rakhi tied to him by the victim as a condition for bail.
The top court's verdict came on a plea filed by advocate Aparna Bhat and eight other women who had challenged the July 2020 high court order arguing that "there is a strong likelihood that such observations and directions may result in normalizing what is essentially a crime and has been recognized to be so by the law."
In its order, the top court not only issued guidelines courts must follow while granting bail in sexual assault cases but also mandated the introduction of gender sensitization as a course module for those studying law.
"Using Rakhi tying as a condition for bail transforms a molester into a brother by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment," the verdict rendered by Justices AM Khanwilkar and S Ravindra Bhat read.
The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behaviour that is a serious offence, it observed.
"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 judgement further read.
"The law criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes," the top court observed while setting aside the high court order.
Furthering of rape myths and stereotypes by the judiciary limits the emancipatory potential of the law
"Judges play—at all levels—a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender-related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors," the top court said.
Furthering of rape myths and stereotypes by the judiciary limits the emancipatory potential of the law. As such, the top court observed that courts should "desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order.
Illustrating examples, the top court directed courts to refrain from making the following observations: (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.
Sexual assault victim re-victimised through denial of redress and informal trials
Women often experience obstacles in gaining access to mechanisms of redress, including legal aid, counselling services and shelters. They are re-victimized and exposed to further risk of violence through the denial of redress in the context of informal trials or negotiations between families and community leaders," the top court said.
The SC also observed an Indian woman's challenges are formidable which include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social & political structures that are heavily male-centric, most often legal enforcement structures that either cannot cope with or are unwilling to take strict and timely measures.
Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping.
The Supreme Court has framed guidelines courts must follow while granting bail in sexual assault matters:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
(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 a 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. In other words, discussion about the dress, behaviour, 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 between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(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, and
(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.
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