THE Supreme Court Thursday set aside the bail condition imposed by the Madhya Pradesh High Court requiring a person accused of "outraging the modesty" of his woman neighbour, to visit the house of the victim with a box of sweets and request her to tie a rakhi band on him with the promise to protect her always.
A bench of Justices AM Khanwilkar and Ravindra Bhat pronounced the order disapproving the approach of the high court.
It said "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".
"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 bench said.
It issued a slew of direction to protect the complainant from any further harassment by the accused-
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 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, 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 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.
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.
As far as the training and sensitization of judges and lawyers, including public prosecutors goes, the Court ordered that module on gender sensitization be included, as part of the foundational training of every judge.
"This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training", the Court said.
It also asked the Bar Council of India (BCI) to consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program.
The BCI should also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination, it said.
The top court was ruling on a plea filed by a group of women lawyers led by advocate Aparna Bhat.
Attorney General for India, KK Venugopal, also expressed his displeasure at a Madya Pradesh High Court order.
"Orders in sexual assault cases asking the accused to get the victim to tie a 'rakhi' on him is drama," Venugopal submitted before the Supreme Court while stressing the need to gender-sensitize and educate judges on the necessity of focusing on the facts, particularly when imposing bail conditions.
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