The Supreme Court yesterday set aside a judgement of Madhya Pradesh High Court which required the accused to ask the victim to tie a rakhi around his wrist as a precondition to obtain bail. The instant case pertained to the accused outraging the modesty of his female neighbour.
The bench of Justices AM Khanwilkar and S. Ravindra Bhat further opined that such orders effectively turn a molester into a brother via judicial mandate which is ‘wholly unacceptable’.
The bench further requested the National Judicial Academy to develop modules for imparting ‘gender sensitization’ training to young judges, public prosecutors and standing counsels. It also directed the Bar Council of India to make such subjects as part of the curriculum of LLB and AIBE syllabus.
The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided.
The Bar Council of India (BCI) should also 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 shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.
Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.
Further, the court also issued a set of guidelines while handling sexual crimes cases:
(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.
Further, 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.
The judgement can be seen to have references to the 19th century author, Henrik Ibsen on this subject.
Justice Ravindra Bhat begins the judgement with Ibsen’s quote,
“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”
The judgement also quoted certain excerpts from the Canadian Commentaries on Judicial Conduct:
“The wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”
Read the judgement here: