Updated: March 23, 2021 8:13:12 am
Last year, the Madhya Pradesh High Court set a disturbing precedent when it asked a man accused of sexual assault to tie a rakhi on the victim as a condition for granting him bail. The Supreme Court has not only struck down the order as invalid, arguing that it “transforms a molester into a brother by a judicial mandate” but also laid down a set of comprehensive guidelines that discourage the judiciary from orders that trivialise sexual crimes against women and language that regurgitates demeaning stereotypes about women.
This rulebook against patriarchal bias is immensely welcome — and a landmark attempt to nudge the judiciary to recognise the everyday, in-built sexism that manifests in orders that ask victims of sexual crime to marry their assailants and evaluates women victims by notions of chastity and “good” conduct. “The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately,” the court said. The SC counselled lower courts against bail conditions that involve any contact with the victim and the accused; orders that perpetuate “stereotypical or patriarchal notions about women and their place in society” or comment on the woman’s attire, behaviour or “morals”. It warned against attempts by the judiciary to “suggest or entertain” any compromises between the complainant and the accused. It asked judges to desist from opinions that suggest “good” women are chaste, or obedient, or natural mothers, and those that express doubt about the intentions of a sexually active woman’s intent. The court has also mandated a module of gender sensitisation in the training of judges.
The Supreme Court had stepped in when several SC lawyers moved the court against the egregious rakhi ruling. In their submission, the lawyers pointed to a pattern of such retrograde orders, from asking the accused in cases of sexual crime to render community service in COVID-19 hospitals, to planting trees and contributing to charities; from an order that commented disapprovingly on a woman who fell asleep after rape “as this is not the way our women react when they are ravished”; to orders granting bail in POCSO cases on the promise to marry the underage victim. The Supreme Court also sought the advice of the attorney-general, who assented to the need for sensitisation . The Court has done well for using this opportunity to push judicial common sense into a less patriarchal terrain of constitutional rights and violations. It must also be vigilant that this code of gender equity is followed in letter and spirit.
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