This is an archive article published on March 19, 2021
Courts shouldn’t suggest compromise in gender-related crimes, rules Supreme Court
The court said this while setting aside the bail condition imposed by the Madhya Pradesh High Court in a July 2020 order asking the accused in a case of attempt to outrage the modesty of a woman to visit her with his wife and request her to tie a rakhi on him.
The ruling came on a plea by Advocate Aparna Bhat and eight other women lawyers against the high court order.
Calling upon judges to the more sensitive while dealing with gender-related crimes and “avoid stereotypical or patriarchal notions about women and their place in society” in their orders, the Supreme Court on Thursday asked courts not to encourage or even suggest marriage or any such compromise between the prosecutrix and the accused while dealing with such cases.
“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,” ruled a bench of Justices A M Khanwilkar and S Ravindra Bhat.
The court said this while setting aside the bail condition imposed by the Madhya Pradesh High Court in a July 2020 order asking the accused in a case of attempt to outrage the modesty of a woman to visit her with his wife and request her to tie a rakhi on him. The ruling came on a plea by Advocate Aparna Bhat and eight other women lawyers against the high court order.
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Writing for the bench, Justice Bhat reminded that “the role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party” and that “even an indirect undermining of this responsibility cast upon the court… could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court”.
The “bail conditions and orders… must strictly be in accordance with the requirements of the Cr. PC”, the bench said. “In other words, discussion about the dress, behavior, or past ‘conduct’ or ‘morals’ of the prosecutrix, should not enter the verdict granting bail.” The conditions should also “not mandate, require or permit” contact between the accused and the victim, it said.
Asking judges to show sensitivity in their orders, the court said even a single instance of an order to the contrary “reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence”.
It asked courts to “desist from expressing any stereotype opinion… to the effect that… women are physically weak and need protection… are incapable of or cannot take decisions on their own… men are the ‘head’ of the household and should take all the decisions relating to family… women should be submissive and obedient according to our culture… ‘good’ women are sexually chaste… a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or ‘has asked for it’…”
Taking a grim view of the high court order, the bench said “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”.
“The law criminalises outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes,” it said.
“Gender violence is most often unseen and is shrouded in a culture of silence,” the bench said, adding “this silence needs to be broken” and that “in doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women”.
The court also called for introducing programmes for gender sensitisation of judges and law students.
Ananthakrishnan G. is a Senior Assistant Editor with The Indian Express. He has been in the field for over 23 years, kicking off his journalism career as a freelancer in the late nineties with bylines in The Hindu. A graduate in law, he practised in the District judiciary in Kerala for about two years before switching to journalism. His first permanent assignment was with The Press Trust of India in Delhi where he was assigned to cover the lower courts and various commissions of inquiry.
He reported from the Delhi High Court and the Supreme Court of India during his first stint with The Indian Express in 2005-2006. Currently, in his second stint with The Indian Express, he reports from the Supreme Court and writes on topics related to law and the administration of justice. Legal reporting is his forte though he has extensive experience in political and community reporting too, having spent a decade as Kerala state correspondent, The Times of India and The Telegraph. He is a stickler for facts and has several impactful stories to his credit. ... Read More