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Wednesday, April 14, 2021

SC scraps MP High Court’s ‘rakhi’ order; issues guidelines for bail in sexual assault cases

In its plea before the Supreme Court, advocate Aparna Bhat had contended that “such judgments from High Courts would end up trivializing such heinous offences".

By: Express Web Desk | New Delhi |
Updated: March 18, 2021 11:15:18 pm
Supreme CourtThe ruling came on a plea by Advocate Aparna Bhat and eight other women lawyers against the high court order.

The Supreme Court Thursday set aside a judgment of the Madhya Pradesh High Court wherein it had asked a man, who was accused of sexual assault, to get a “rakhi” tied on his wrist by the victim as a prerequisite condition of bail.

The judgment comes after Supreme Court advocate Aparna Bhat and eight other women had challenged the July 2020 order of the Madhya Pradesh High Court, Bar and Bench reported. The 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.

While setting aside the order, the bench of Justices AM Khanwilkar and Ravindra Bhat issued seven directions to be followed by lower courts while dealing with bail petitions in matters relating to crimes against women.

– 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;

– 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.

– 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

– 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 CrPC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail

– 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

– 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

– 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.

Besides this direction, the bench also stated that the lower courts should “desist from expressing any stereotype opinion such as women are physically weak, should be submissive and obedient, good women are sexually chaste, among others.

In her plea before the Supreme Court, Aparna had 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 recognised to be so by the law”.

The top court had also issued a notice to Attorney General K K Venugopal on October 16, 2020, to elicit his views and suggestions on the issue. The AG had then filed written submissions on the steps that could be considered to correct the non-empathetic approach of judges in cases of sexual violence. Venugopal had suggested 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.

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