Rakhi as bail condition turns "molester into brother" by judicial mandate: Supreme Court gives directions to avoid "women asked for it" orders

Court directing a person accused of sexual assault to get Rakhi tied on him by the victim as a condition for grant of bail, effectively turns molester into brother by judicial mandate and is an example of "judicial stereotyping", the Supreme Court of India said on Thursday (Aparna Bhat v. State of Madhya Pradesh)..A Bench of Justices AM Khanwilkar and Ravindra Bhat made certain pertinent observations in this regard while setting aside a July 2020 order of the Madhya Pradesh High Court which had directed a man accused of sexual assault to get Rakhi tied on his wrist by the victim as a condition for bail..The judgment was delivered in a plea filed by nine woman lawyers who had challenged the MP High Court order contending such bail orders have the effect of trivializing sexual offences..Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate.Supreme Court .The Court in its judgment passed seven key directions which needs to be adhered to by courts while passing bail orders in cases of sexual offences:.1. 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;2. 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.3. 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 days4. 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 bail5. 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 jurisdiction6. 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 arguments7. 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 two-judge bench while setting aside the MP High Court order noted that "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 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," reads the judgment.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 survivorSupreme Court .The top court further 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..Madhya Pradesh High Court order directing accused to get Rakhi tied by victim as a condition for bail set aside by Supreme Court.The Bench went on to note that 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 verdict said..It further noted that gender violence is most often unseen and is shrouded in a culture of silence."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 Court said..On ‘Judicial stereotyping’ the Court said that it is the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women)."It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings," the judgment elaborated. .Nine women lawyers challenge Madhya Pradesh HC bail condition directing man accused of sexual assault to get Rakhi tied by victim.With regard to training and sensitization of judges and lawyers, including public prosecutors goes, Supreme Court mandated that a 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 court underscored.."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 judgment said..The MP High Court had directed the man accused of having outraged the modesty of a woman to present himself before the complainant so that she may tie a "rakhi" on his wrist to be eligible for bail.As per the order passed by Justice Rohit Arya, the bail applicant and his wife were directed to visit the complainant's house on Raksha Bandhan day with a Rakhi thread and a box of sweets.Apart from requesting the complainant to tie the Rakhi, which customarily denotes a brother-sister relationship, the applicant was also ordered by the High Court to make a promise that he would protect the complainant to the best of his ability for all times to come.Added to this, the bail applicant was ordered to give Rs. 11,000 to the complainant, as "usually offered by brothers to sisters" during Raksha Bandhan and to seek her blessings. Moreover, he was also directed to give an additional Rs. 5,000 to the complainant's son for the "purchase of clothes and sweets.".The plea before the Supreme Court 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."The petition cited orders from other High Courts as well to highlight the non-empathetic approach of judges while dealing with cases of sexual violence..The Court had issued notice to the Attorney General KK Venugopal on October 16, 2020 to elicit his views and suggestions on the issue.The AG had then filed detailed written submissions on the steps that could be considered to correct the non-empathetic approach of judges in cases of sexual violence.He submitted that judges, who are "old school" and "patriarchal" in their outlook, need to be sensitised so that they do not pass orders objectifying women in cases of sexual violence.He also suggested increasing women judges in judiciary as a measure that will address the non-empathetic approach adopted by judges..[Read Judgment]