Supreme Court asks National Judicial Academy to constitute committee to draft guidelines for judges' approach

New Delhi: Observing that there is a need to inculcate sensitivity in the judicial approach, the Supreme Court has asked the National Judicial Academy to constitute a committee of experts to draft guidelines for approach of judges when dealing with cases of sexual offences.

The top court asked the Bhopal-based academy through its Director, Justice (retired) Aniruddha Bose to prepare a comprehensive report on the matter of 'Developing Guidelines to Inculcate Sensitivity and Compassion into Judges and Judicial Processes in the Context of Sexual Offences and other Vulnerable Cases'.

A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and N V Anjaria in an order passed on February 10 said various steps have been taken by constitutional courts but efforts thus far have not borne the fruit.

"That being so, we are hesitant to undertake, at this stage, a fresh and unguided attempt to lay down any guidelines, without the benefit of a comprehensive understanding of the past endeavours of such nature undertaken by the different constitutional and statutory bodies, the on-ground results of such efforts, and the varying scope of problems faced by victims and complainants in similarly sensitive cases.

"An attempt of this kind also should not be undertaken without the valuable opinions and suggestions of different domain experts, which in our judicial experience, does not intuitively emerge out of litigative proceedings," the bench said in the order uploaded on Tuesday.

The top court said the committee shall consider the previous measures undertaken, whether on the judicial side or the administrative side.

"Further, after taking into account such previous endeavours and the variety of on-ground experiences faced by different stakeholders across the judicial system, prepare comprehensive recommendations.

"These recommendations shall be in the form of 'Draft Guidelines for the Approach of Judges and the Judicial System When Dealing with Cases of Sexual Offences and other Similarly Sensitive Occurrences Involving Vulnerable Victims, Complainants, and/or Witnesses'," the bench said.

The apex court said the committee shall, while preparing the report, bear in mind the linguistic diversity of the country.

"There are various examples of offensive words and expressions, the use of which would ordinarily constitute an offence under our penal laws, but they are openly spoken by members of our society in local dialects, ostensibly because of the absence of a clear understanding of the offensive nature of such saying.

"It shall be highly appreciated if the Committee, as a part of its report, is able to identify and compile such words/expressions, from different languages, so that they do not go unnoticed, and the complainants/victims are empowered to give a better and fuller narrative of the trauma undergone by them," the bench said.

The top court said the committee must remind itself that the primary beneficiaries of these guidelines are the victims/complainants, majority of whom are children, women of tender age, and members of vulnerable sections of society.

"As such, the Committee shall ensure that the draft guidelines are devised in a manner so that they may be understood and utilized easily by such persons, irrespective of their background and means.

"To this end, we recommend that the Committee of Experts prepare, preferably the entire report, and in any case at least the draft guidelines, in simple language comprehensible to laypersons, whose interests the guidelines seek to protect. The guidelines, we expect, will not be loaded with heavy, complicated expressions borne from foreign languages and jurisdictions," the bench said.

The committee of experts shall be at liberty to seek the assistance of other experts on this matter, such as linguistics academicians, prosecutors, litigators, social scientists, and counsellors, as it deems necessary, it said.

The directions came while disposing of a suo motu plea in which it had taken cognisance of an order of the Allahabad High Court which said mere grabbing of the breast and pulling the string of a 'pyjama' do not amount to offence of rape.

The apex court set aside the high court order and said, "The facts alleged being so, we cannot agree with the finding of the high court that the allegations only amount to preparation, but not an attempt, towards the commission of the offence of rape.

"The attempt made by the accused persons appears clearly and inevitably leads us to conclude that, prima facie, a case for invoking the provisions of attempt to commit rape has been made out by the complainant and the prosecution. The impugned judgment, thus, is liable to be set aside on account of the patently erroneous application of the settled principles of criminal jurisprudence," the bench said.

No judge or judgment of any court can be expected to do complete justice when it is inconsiderate towards the factual realities of a litigant and the vulnerabilities which they may be facing in approaching a court of law, it said.

"Our decisions as participants in the legal process, from laying down the procedure that shall have to be faced by common citizens to the final judgment passed in any given case, must reflect the ethos of compassion, humanity, and understanding, which are essential for creating a fair and effective justice system," the bench added.