New Delhi: While setting aside a Madhya Pradesh high court judgment which had asked a man accused of sexual assault to get a “rakhi” tied by the victim as a condition of bail, the Supreme Court on Thursday issued a set of guidelines aimed at ensuring subordinate courts avoid passing insensitive bail orders in cases involving sexual violence.
The apex court bench of Justices A.M. Khanwilkar and Ravidnra Bhat was acting on a petition by Supreme Court advocate Aparna Bhat and eight other women lawyers challenging a July 2020 order of the Madhya Pradesh high court. Bhat had contended that “such judgments from high courts would end up trivialising such heinous offence and that 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”.
Apart from getting a “rakhi” tied by the victim, the high court had asked the 26-year-old man, accused of molesting the woman, to give Rs 11,000 to the woman as part of a customary offering made by brothers to sisters on the occasion of Raksha Bandhan. It had also asked the accused to give Rs 5,000 to the son of the victim for purchase of clothes and sweets.
The high court order was passed by the single bench of Justice Rohit Arya on July 30, 2020.
According to LiveLaw, the Supreme Court spelt out seven guidelines for lower courts to follow:
(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.
The Supreme Court had sought the attorney general’s assistance on this matter. Terming the bail order as “drama”, attorney general K.K. Venugopal had told the bench that such orders need to be condemned and that judges must get training in gender sensitisation too.