Courts Should Avoid Patriarchal & Stereotypical Notions About Women: Supreme Court Issues Guidelines For Dealing With Sexual Crimes

While setting aside the "rakhi-for-bail" order of the Madhya Pradesh High Court, the Supreme Court issued a set of guidelines to be followed by Courts while dealing with sexual crimes."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 maybe. The law criminalizes outraging the modesty of a woman", observed the judgment delivered by a bench comprising Justices S Ravindra Bhat and AM Khanwilkar.The Court held that the "use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances".The judgment illustrated certain conduct and actions as irrelevant for adjudication - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or "Indian" women, or that she had called upon the situation by her behavior, etc.The Court stated that such attitudes should "never enter judicial verdicts or orders" or be "considered relevant while making a judicial decision". They cannot be reasons for granting bail or other such reliefs.Imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. "The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence", the judgment authored by Justice Ravindra Bhat said.Greatest extent of sensitivity is to be displayed in the judicial approach,language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, 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.The Court issued the following guidelines.(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. Courts should avoid gender stereotypes such as examples given belowFurther, courts should desist from expressing any stereotype opinion,...

Courts Should Avoid Patriarchal & Stereotypical Notions About Women: Supreme Court Issues Guidelines For Dealing With Sexual Crimes

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