The apex court was hearing a case where the MP HC had granted bail in a sexual assault case on the condition that the survivor tie a rakhi to the accused.

Stylized image of men stalking a woman Image for representation
news Gender Thursday, March 18, 2021 - 19:34

The Supreme Court on Thursday set aside Madhya Pradesh High Court's order granting bail to a man accused in a molestation case on a condition that he should get a 'rakhi' tied to him by the survivor. A bench headed by Justice AM Khanwilkar issued a slew of directions, which included training modules for sensitisation of judges and emphasised that judges should avoid any kind of stereotyping.

The Attorney General (AG) KK Venugopal had also opposed the bail condition. The plea was filed by advocate Aparna Bhat and eight other women lawyers against the July 30 order by the Madhya Pradesh High Court, where an accused of sexual assault was asked to get a 'rakhi' tied on him by the victim as a condition for bail.

"The bail condition in question amounts to further victimisation of the survivor in her own house. In the context of 'Raksha Bandhan' being a festival of guardianship between brothers and sisters, the said bail condition amounts to gross trivialisation of the trauma suffered by the complainant in the present case," said the plea.

The petitioners had argued that the bail condition by the High Court should be set aside. Advocate Aparna had contended in the plea that the order has been passed by a constitutional court such as a High Court of a state and 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."

The plea said: "It is highly objectionable for the High Court in the present case to put the complainant in a position where she is forced to accept the sum of Rs 11,000 as part of the customary ritual of Raksha Bandhan. Moreover, the said bail condition also goes a step further by stating that Respondent No. 2 (the accused) tender Rs 5,000 to the son the complainant."

The apex court, while setting aside the MP High Court’s order, noted that tying a rakhi as a bail condition 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 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 maybe,” the court said.

It also said that certain conducts or acts should be irrelevant for adjudication such as consent given in the past of saying that she behaved promiscuously, or by the way she dresses. Such attitudes should "never enter judicial verdicts or orders" and shouldn’t be taken into account while making a judicial decision.

Gender stereotypes should also be avoided by courts when they express opinion, or during proceedings, or during a judicial order. These include examples such as women being weak and needing protection, women being incapable of making their own decisions, women should be submissive and obedient, assuming men being “head” of the family, among others.   

The Supreme Court also issued guidelines on granting bail and sensitivity in judgments.

- Bail conditions cannot mandate, require or allow contact between accused and the survivor. Such conditions should aim to protect the complainant from any further harassment by the accused.

- In cases where potential threat is seen to exist for the survivor, and when an apprehension is expressed, after calling for police reports, the way of protection should be separately considered and an appropriate order should be made. This is in addition to directing the accused to not contact the survivor.

- In all cases where accused is granted bail, complainant should be informed immediately and a copy of the bail order should be given to him/her within two days.

- Bail conditions and orders should refrain from including stereotypical and patriarchal notions about women and their place in the society, and should strictly be in accordance with the CrPC. “In other words, discussion about the dress, behaviour, or past ‘conduct’ or ‘morals’ of the prosecutrix, should not enter the verdict granting bail,” the court said.

- In gender related crimes, the court should not suggest, entertain or encourage steps towards a compromise between a prosecutrix and the accused to marry, or suggest or require mediation between them.

- Judges should display sensitivity at all times, and ensure that the prosecutrix is not traumatised during proceedings, or with anything said in the arguments.

- Judges especially should not speak or write any words that would undermine or shake the confidence of the survivor in the fairness and impartiality of the court. 

Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.