Some of the reasons on the basis of which persons accused of rape are granted bail are interesting. These reasons shock the conscience of any sane person. For want of any solid legal grounds to grant bail to the accused, some courts attempt to paint the victim in dark colours by questioning their choices. In an order granting bail to the rape accused, the Karnataka High Court made remarks on the victim’s conduct by doubting her choice to “go to office at night”, “consuming drinks”, going to the extent of saying that it was “unbecoming of an Indian woman” to claim that she had slept after being “ravished”. In another case, the Gauhati High Court granted bail to the accused citing that “the informant/victim girl and the accused are the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati” and that detention of the accused is not necessary. The Punjab and Haryana High Court, in an order granting bail to three rape accused, made observations about the victim’s “casual relationships”, “promiscuous attitude”, “voyeuristic mind”, etc.
The latest bail order to shock our conscience is the order of Sessions Court, Kozhikode, which granted bail to the accused holding that the offence of sexual harassment is not prima facie attracted if the woman was wearing “sexually provocative dresses”. In another order granting bail to the same accused in a sexual harassment case against a Dalit writer, the same court virtually exonerated him from the offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act by holding that “it is highly unbelievable that he will touch the body of the victim fully knowing that she is member of Scheduled Caste”.
Some courts do not stop there. They also impose ridiculous conditions for the bail. In one order by the Madhya Pradesh High Court, the accused was directed to visit the house of the victim with a rakhi and a box of sweets and request the victim to tie the rakhi to him with the “promise to protect her to the best of his ability for all time to come”. As strange as it sounds, bail conditions often go from bad to worse. The Madhya Pradesh High Court directed the rape accused to perform community service and “register himself as COVID-19 warrior” to secure bail.
Even though Kerala is hailed as a progressive state, sexual offences against women and the attitude of the courts while considering such cases have come under great criticism. The judgment acquitting Bishop Franco Mulakkal was criticised not just for its legal weaknesses but also for the inherent anti-women undertones.
These instances only point at how courts in India lack gender-sensitivity. The Supreme Court has time and again emphasised that courts should not use language and provide reasons that diminish the offence and trivialise the victim’s experience. In Aparna Bhat v. State of Madhya Pradesh (2021), the SC has held that the conduct of the victim is irrelevant and that the courts should not tread in that direction. It does not matter whether the victim had in the past consented or whether she behaved promiscuously, or whether she “behaved in a manner unbecoming of chaste Indian women”. The Supreme Court has also held that imposing conditions that implicitly tend to condone or diminish the harm caused by the accused have the effect of potentially exposing the survivor to secondary trauma, and are expressly forbidden.
The judiciary must be circumspect and ensure that it does not fall into gender stereotyping. Making express remarks about the dress worn by the victim at the time of rape or sexual harassment by marking it as “provocative” directly infringes on the fundamental right to gender equality guaranteed by the Constitution under Article 15. The right of the victim to a fair trial under Article 21 of the Constitution is also impacted owing to coloured opinions about a victim’s character in a bail order. Even internationally, the harbouring of prejudices by courts while considering cases involving violence against women is held to be abhorrent. The Committee on the Elimination of Discrimination against Women (CEDAW) in R P B v. The Philippines, held that stereotyping affects women’s right to a fair trial and urged the State Party “to ensure that all criminal proceedings involving rape and other sexual offences are conducted in an impartial and fair manner and free from prejudices or stereotypical notions regarding the victim’s gender, age and disability”.
Despite the law being clear on this aspect, courts in India continue to put the victim and her character on trial. Merely training and imparting gender sensitisation to judges is insufficient in a system that is inherently unfriendly to women. Gender sensitisation has to be wide enough to become entrenched in institutions like the police, public prosecutors, members of the Bar, etc. Our Constitution advances the philosophy of empathy. In a system that puts the victim on trial, justice will be an alien concept.
The writer is an advocate at the Supreme Court of India
