Sexual Assault Case: SC Sets Aside HC’s Rakhi-For-Bail Condition

The SC noted that judges should “avoid making remarks that create stereotypes”.

The Supreme Court on Thursday, 18 March, set aside an order passed by the Madhya Pradesh High Court, which had ordered the accused in a sexual harassment case to get a rakhi tied by his victim as a condition for bail in sexual offenses, reported Bar and Bench.

The apex-court bench, led by Justices AM Khanwilkar and S Ravindra Bhat, ruled on a petition filed by SC lawyer, Aparna Bhat and eight other women who challenged the order of the MP High Court, added the report.

The apex court passed the order noting that judges should “avoid making remarks that create stereotypes”, and issued directions on gender sensitisation of the judicial body, including judges and lawyers, reported News18.

WHAT WAS THE PLEA?

The report added Bhat’s plea contended, “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.”

Citing orders from other High Courts, the plea noted the de-sensitised approach of judges in cases of sexual violence which would end up trivialising such heinous offences, stated the report.

WHAT WAS THE MP HC’S ORDER?

The Indore bench of the Madhya Pradesh High Court had granted bail to an accused in the July 2020 sexual harassment case, on the condition that he would visit her on Raksha Bandhan with a box of sweets and request her to tie a rakhi on him.

The court ordered that he would promise to “protect her” and gift her Rs 11,000 as a part of the custom, and pay Rs 5,000 to the son of the complainant to purchase clothes and sweets.

According to NDTV, Justice Rohit Arya had stated, “The applicant, along with his wife shall visit the house of the complainant with a Rakhi thread on 3 August 2020 at 11 am with a box of sweets and request the complainant to tie the Rakhi on him with the promise to protect her to the best of his abilities for all times to come.”

WHAT GUIDELINES DID THE COURT SET FORTH?

In the judgement, the apex court passed seven key directions, which need to be adhered to while passing bail orders in sexual offences cases.

Noting that gender violence is most often unseen and is shrouded in a culture of silence, the bench said: "The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc."

The top court said 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,” it noted, according to IANS.

The bench also added that the judges should identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. "Stereotyping might compromise the impartiality of a judge's decision," it observed.

Men, perhaps more than women, have a duty and role to play in averting and combating violence against women, it said.

Attorney General K K Venugopal had suggested steps that should be taken to sensitise all stakeholders, especially courts, while dealing with offences against women, the bench said: "On gender equality and gender sensitisation, the Attorney General argued that to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar are made aware of gender prejudices that hinder justice."

The top court said if judges falter, especially in gender-related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors as it passed a slew of direction on the aspect of gender sensitisation in the legal fraternity, IANS reported.

“As far as the training and sensitisation of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitisation be included, as part of the foundational training of every judge,” it said.

The bench asked the National Judicial Academy to prepare a module for training of young judges with respect to gender sensitisation. It also asked the Bar Council of India to consider topics on sexual offences and gender sensitisation to be mandatorily included in the syllabus for the All-India Bar Examination.

(With inputs from Bar and Bench, IANS, NDTV and News18)