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SC Scraps MP High Court’S ‘RAKHI’ Order; Issues Guidelines For Bail in Sexual Assault Cases

Drawing a line for judges hearing sexual assault and molestation cases, SC also warned them against setting bail conditions reflecting stereotypical or patriarchal notions about women & their place in society.

By: Priya Kumari, B.A.LL.B., Maharashtra National Law University Aurangabad.

The Supreme Court set aside and expunged portions of the Madhya Pradesh High Court order that directed the man accused of having outraged the modesty of a woman to present himself before the complainant so that she may tie a “rakhi” on his wrist to be eligible for bail.

The top court’s verdict came on a plea filed by advocate Aparna Bhat and eight other women who had challenged the July 2020 High Court order arguing that “there is a strong likelihood that such observations and directions may result in normalizing what is essentially a crime and has been recognized to be so by the law.”

A bench of Justices A M Khanwilkar and S Ravindra Bhat said that Judges can play a significant role in society in getting over the harmful stereotypes and they have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. The bench further asked the National Judicial Academy (NJA) and the Bar Council of India (BCI) to create training modules on gender sensitisation for judges and lawyers.

The court said, “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 may be.” 

While setting aside the order, the bench issued seven directions to be followed by lower courts while dealing with bail petitions in matters relating to crimes against women.

The following are the guidelines that have now been issued for all courts:

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 a 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 CrPC. In other words, discussion about the dress, behaviour, 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; and
  • 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.

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