SC quashes Madhya Pradesh HC's order for molestation accused to get Rakhi tied by victim for bail

In an important ruling, the Supreme Court on Thursday laid down guiding principles for the courts to deal with sexual offences with a direction to judges to "avoid reflecting stereotypical or patriarchal notions about women".

A bench of Justices A M Khanwilkar and S Ravindra Bhat held that the use of reasoning or language which diminishes the offence and tends to trivialise the survivor, should especially be avoided under all circumstances.

The top court noted that gender violence is most often unseen and is shrouded in a culture of silence.

So, notions such as the survivor had in the past consented to 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 of an Indian women, should be avoided, it said.

"The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning. 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 bench said.

The court set aside a Madhya Pradesh High Court's order of July 30, 2020 for molestation accused to get Rakhi tied from the victim as a condition for bail, by terming it as "wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment".

"The act 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," the court added.

Acting on a petition by advocate Aparna Bhat and eight others, the court said using Rakhi tying as a condition for bail, cannot transform a molester into a brother, by a judicial mandate.

It ordered for developing a training module on gender sensitisation as part of the foundational training of every judge, who played a vital role as teachers and thought leaders. It also directed the Bar Council of India to include the topic as part of syllabus for LL B programme and All India Bar Examination.

Justice Bhat, who authored the judgement, said that the courts should ensure that bail conditions should not mandate, require or permit contact between the accused and the victim.

"The courts 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, or any form of compromise as it is beyond their powers and jurisdiction," the bench said.

Among others, the top court said discussion about dress, behaviour, or past “conduct” or “morals” of the survivor, should not enter the verdict granting bail.

"Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatisation of the prosecutrix... 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," the bench said.

The court should not render itself susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes, the bench added.