"There has never been a female CJI:" AG KK Venugopal suggests steps to combat non-empathetic approach of judges in sexual violence cases

Attorney General (AG) KK Venugopal told the Supreme Court that increasing women judges in judiciary could help in correcting the non-empathetic approach of judges in cases of sexual violence.

Venugopal was replying to a plea questioning the bail conditions imposed by the Madhya Pradesh (MP) High Court wherein an accused was asked to get a Rakhi tied by the victim as a condition for enlargement on bail.

"Improving the representation of women in the judiciary could also go a long way towards a more balanced and empathetic approach in cases involving sexual violence. For instance, this Court (SC) only has 2 women judges, as against a sanctioned strength of 34 judges. There has never been a female Chief Justice of India," the AG said in his written submissions filed on Tuesday.

The petition filed by nine women lawyers led by Supreme Court advocate Aparna Bhat had cited orders from other High Courts to highlight the non-empathetic approach of judges while dealing with cases of sexual violence.

The plea by Bhat contended that such judgments from High Courts would end up trivializing such heinous offence and 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."

A Justice AM Khanwilkar led bench had noted that the MP High Court order was complied with but the question remained as to how such orders in general could be avoided. In this regard, notice was issued to Attorney General KK Venugopal to elicit his suggestions.

The AG suggested the following measures to improve the strength of women in judiciary:

i. Direct collection of data to determine the number of women judges in the lower judiciary

ii. Direct collection of data to determine the number of women judges in tribunals

iii. Direct collection of data to determine number of senior designates by all High Courts, year wise.

iv. Ensure greater representation of women at all levels of the judiciary, including the Supreme Court.

He also stated that gender sensitization of bar and bench with regard to creating a sense of judicial empathy for the victim with judges placing themselves in victim's shoes will help avoid non-empathetic attitude by judges.

The two broad areas, as per the AG, where the Court could intervene are:

1. Guidelines on bail and anticipatory bail, in line with already settled jurisprudential principles, to ensure that the Court only imposes conditions that are permissible and in line with the statutes;

2. Gender sensitization of the bar and the bench – particularly with regard to creating a sense of judicial empathy with the victim, with the judges placing themselves in the victims shoes, and secondly conceptualizing their response to the crime in terms of the same having been committed upon a member of their own family.

The Supreme Court, he said, could consider highlighting the following in cases of crimes against women:

i. Bail conditions should not mandate contact between the accused and the victim.

ii. Bail conditions must seek to protect the complainant from any harassment by the accused.

iii. Where considered necessary, the complainant may be heard on whether there is any peculiar circumstance which may require additional conditions for her protection.

iv. Wherever bail is granted, the complainant may immediately be informed that the accused has been granted bail.

v. Bail conditions must be free from stereotypical or parental notions of women and their place in society,and must strictly be in accordance with the requirements of the CrPC.

Importantly, Venugopal suggested that courts should avoid suggesting a compromise between the accused and victim.

The AG further suggested that training of judges at all levels of the judicial hierarchy in aspects of gender sensitization can be conducted at regular intervals by the National Judicial Academy and the State Judicial Academies mandatorily.

Moreover, top law officer pointed out that there is no course on gender that is taught in law schools compulsorily and that some law schools have the subject either as a specialization or as an elective.

"Equally, the All India Bar Examination does not contain even a single question or section relating to gender sensitization. The Bar Council of India may take necessary steps in this regard," the AG submitted.