In the case of Aparna Bhat vs. State of Madhya Pradesh, the Hon’ble Supreme Court gave directions to the Madhya Pradesh High Court, with a view to sensitize the outlook of the Indian Judicial system towards women while dealing with matters pertaining to sexual offences against them. The Supreme Court remarked that sexual offences against women cannot be mitigated or compounded in any sense and shall be dealt with sternly by the subordinate courts.
The accused in this case was a neighbor of the complainant and had tried to sexually harass her by breaking and entering into her house, following which an FIR was lodged against the accused under Section 323, 354A, 452 and 506 of the Indian Penal Code, 1860. The accused filed an application for Anticipatory Bail under section 438 of the Code of Criminal Procedure, 1973.
The Madhya Pradesh High Court, while granting bail to the accused imposed a condition that the accused shall, along with his wife, visit the victim’s house on Raksha Bandhan and request the victim to tie a Rakhi on his wrist, as reparation for his offence. Along with the visit, the accused was also directed to pay Rs. 11,000 (Rupees Eleven Thousand Only) as a customary gift presented by brothers to their sisters on the occasion of Raksha Bandhan. Aggrieved by the impugned judgment of the High Court, the petitioner, on behalf of the complainant, filed a plea with the Supreme Court.
The Supreme Court appreciated the initiative of the petitioner for raising voice against the gross injustices being subjected to the women in the society and directed the courts to refrain from giving such perverse directions that might further undermine the dignity of the accused women. The petition incentivized the Supreme Court to pass certain guidelines against such offenders:
- 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.
- 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.
- 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.
- 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 Code of Criminal Procedure, 1973. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail.
- 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.
- 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.
- 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.
Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that
(a) women are physically weak and need protection;
(b) women are incapable of or cannot take decisions on their own;
(c) men are the “head” of the household and should take all the decisions relating to family;
(d) women should be submissive and obedient according to our culture;
(e) “good” women are sexually chaste;
(f) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
(g) women should be the ones in charge of their children, their upbringing and care;
(h) being alone at night or wearing certain clothes make women responsible for being attacked;
(i) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;
(j) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
(k) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and
(l) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
The court observed the importance of gender sensitisation and mandated that a module on gender sensitisation shall be included as part of the foundation training of every judge.
The central theme of the judgment was to prevent the courts from overstepping their authority and passing such judgments which might lead to miscarriage of justice and a climate of arbitrariness in the society. Such judicial stereotyping reveal the inherent misogynistic mindset of our country’s male-dominated society. Women already face much discrimination in the society at almost all the levels, and judicial stereotyping does the work of adding insult to injury thus. The Courts have a diligent role to play in empathizing with the victims of sexual harassment, and not subjecting them further agony.