Law Web: Supreme court guidelines to Judges about Judgments writing in sexual offences

Having regard to the foregoing discussion, it is hereby directed that henceforth:

(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;

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 mandatemediation 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. {Para 44}

45. 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 (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children,

their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases;and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

46. As far as the training and sensitization of judges and lawyers, including public

prosecutors goes, this court hereby mandates that a module on gender sensitization be

included, as part of the foundational training of every judge. This module must aim at

imparting techniques for judges to be more sensitive in hearing and deciding cases of

sexual assault, and eliminating entrenched social bias, especially misogyny. The

module should also emphasize the prominent role that judges are expected to play in

society, as role models and thought leaders, in promoting equality and ensuring

fairness, safety and security to all women who allege the perpetration of sexual

offences against them. Equally, the use of language and appropriate words and

phrases should be emphasized as part of this training.

REPORTABLE

IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 329 OF 2021

[@ SPECIAL LEAVE PETITION (CRL.) NO. 2531 OF 2021]

(ARISING OUT OF S.L.P. (CRL.) DIARY NO. 20318 OF 2020)

APARNA BHAT & ORS. Vs STATE OF MADHYA PRADESH

Author: S. RAVINDRA BHAT, J.

Dated:March 18, 2021.

Citation: 2021 SCC OnLine SC 230,2021 ALL SCR (Cri) 732

A woman cannot be herself in the society of the present day, which is an

exclusively masculine society, with laws framed by men and with a judicial system

that judges feminine conduct from a masculine point of view.”

– Henrik Ibsen

1. Leave granted. The appellants are public-spirited individuals, concerned about

the adverse precedent set by the imposition of certain bail conditions in a case

involving a sexual offence against a woman; they impugn a part of the judgment of

the Madhya Pradesh High Court1 that imposed these bail conditions. With the consent

of counsel for the parties, the appeal was heard finally. The appellants also filed an

1 In Vikram v. The State of Madhya Pradeshin MCRC 23350/ 2020, dated 30.7.2020

application2, seeking directions that all the High Courts and trial Courts be directed to

refrain from making observations and imposing conditions in rape and sexual assault

cases, at any stage of judicial proceedings, that trivialize the trauma undergone by

survivors and adversely affect their dignity. Certain intervenors also preferred an

application in support of the appeal, seeking clear directions to all Courts to refrain

from imposing “irrelevant, freaky or illegal bail conditions”.

2. Ibsen, the prescient nineteenth century author, made a powerful statement

(quoted as the epigram at the beginning of this judgment); sadly, even today, in the

twenty first century, after 70 years as a republic with the goal of equality for all,

many courts seem to be oblivious of the problem. In a sense, this judgment is not as

much about only the merits of the impugned conditions of the bail order, but is meant

to address a wider canvas of (what appears to be) entrenched paternalistic and

misogynistic attitudes that are regrettably reflected at times in judicial orders and

judgments.

3. The brief facts of the case are that on 20.04.2020 at about 2.30 a.m., the

accused-applicant, a neighbour of the complainant, entered her house and caught hold

of the complainant’s hand, and allegedly attempted to harass her sexually.

Accordingly, Crime No. 133/2020 was registered at Police Station, Bhatpachlana,

District-Ujjain for the offences punishable under sections 452, 354A3, 323 and 506 of

the Indian Penal Code (IPC). The case was investigated and a charge sheet was filed.

The accused filed an application under Section 438 of Code of Criminal Procedure,

1973 (hereafter “CrPC”) seeking pre-arrest bail. The High Court, by the impugned

2Crl. M.P No. 102226/2020

3Section 354A reads as follows:

“354A. Sexual harassment and punishment for sexual harassment.—

(1) A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall

be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with

imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

order, even while granting bail to the applicant imposed the following condition

which is under challenge in this petition.

(i) “The applicant along with his wife shall visit the house of the

complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00

a.m. with a box of sweets and request the complainant -Sarda Bai to

tie the Rakhi band to him with the promise to protect her to the best of

his ability for all times to come. He shall also tender Rs. 11,000/- to

the complainant as a customary ritual usually offered by the brothers

to sisters on such occasion and shall also seek her blessings. The

applicant shall also tender Rs. 5,000/- to the son of the complainant –

Vishal for purchase of clothes and sweets. The applicant shall obtain

photographs and receipts of payment made to the complainant and

her son, and the same shall be filed through the counsel for placing

the same on record of this case before this Registry. The aforesaid

deposit of amount shall not influence the pending trial, but is only for

enlargement of the applicant on bail.”

4. The appellants submit that the expressions “in the interest of justice”, “such

other conditions court considers necessary” and “as it may think fit” as provided in

the bare text of the Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, give

discretion to the Courts to impose such other conditions as may be required in the

facts of a particular case, but those conditions have to be in consonance with the other

conditions in the provisions, the purpose of granting bail and no other consideration.

5. The appellants cite Kunal Kumar Tiwari v. State of Bihar4 and Sumit Mehta v.

State (NCT of Delhi)5 and argue that this court’s observations in those decisions must

be followed by every court while considering and dealing with bail applications. They

also rely on the observations made in para 18 of State of M.P v. Madanlal,6 and urge

that in cases of sexual offences, the idea of compromise, especially in the form of

marriage between the accused and the prosecutrix is abhorrent, and should not be

considered a judicial remedy, as it would be antithetical to the woman’s honour and

dignity. Likewise, reliance was placed on Ramphal v. State of Haryana7, where the

4 (2018) 16 SCC 74

5 (2013) 15 SCC 570

6 (2015) 7 SCC 681

7Crl. A. No. 438/2011decided on 27.11.2019

court took note of the compromise between the survivor and accused, but found that

such compromise is of no relevance when deciding on cases of rape and sexual

assault.

6. The appellants brought to the notice of this Court, various decisions and orders

where the observations made by the judges in offences against women including

cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO)

were extraneous. The appellants submitted that the courts, in many cases, especially

under the POCSO Act, granted bail on the plea that an agreement to marry had been

reached between the accused and prosecutrix. Additionally, they also submitted that

while adjudicating matters of sexual harassment and rape, judges have made

shocking remarks on the character of the prosecutrix.

7. Reference is made to Ravi Jatav v. State of M.P8, where the High Court of

Madhya Pradesh, while granting bail (to an accused of committing offences under

Sections 376-D, 366, 506, 34 IPC) imposed conditions that the accused “shall

disaster management at the discretion of the District Magistrate. In Rakesh B. v. State

of Karnataka9, the Karnataka High Court granted bail to an accused alleged to have

committed offences under Sections 376, 420, 506 IPC and Section 66-B of the

Information Technology Act, 2000 (“IT Act”), and made remarks on the survivor’s

conduct. The relevant extract is produced below:

“c) nothing is mentioned by the complainant as to why she went to her

office at night, that is, at 11 PM; she has also not objected to

consuming drinks with the petitioner and allowing him to stay with

her till morning; the explanation offered by the complainant that after

the perpetration of the act she was tired and fell asleep, is

unbecoming of an Indian woman; that is not the way our women react

when they are ravished;”

8. The appellants submit that no observation/condition should be made in any

judgment, or orders which reflects bias of the judge or affects the dignity of a woman

8 MCRC No. 13734/2020 order dated 19.05.2020 passed by Madhya Pradesh High Court.

9Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka.

or affects the conduct of the trial in a fair and unbiased manner. They highlight that

the impugned order, while granting bail, imposed a condition that the applicant shall

visit the house of the complainant. The appellants submit that this is unacceptable and

no observation/condition should be made which permits the accused to meet/have

access to the survivor and her family members.

9. The appellants also cite Mohan v. State10, where the Madras High Court had

referred the case of rape of a minor to mediation and observed that the case was fit

for attempting a compromise between the parties. Likewise, Samuvel v. Inspector of

Police11is cited, where the High Court of Madras referred to mediation, a case of rape

where the prosecutrix was a minor and had become a mother of a child as a

consequence of rape, because the accused agreed to marry her. It is urged that no

observation/condition should be made which initiates or encourages compromise that

disparages and downgrades an otherwise heinous crime thus indicating that such

offences are remediable by way of a compromise/ by marriage.

10. Sopikul Sk. @ Safikul Islam v. State,12 an order of the High Court of Calcutta in

a POCSO case granting bail is cited; here, relief was given to the accused since the

prosecutrix had attained majority and the accused intended to marry her. Further, in

the case of Gyanaranjan Behera v. State of Odisha,13 the Orissa High Court in a

POCSO case granted interim bail to the accused for the purpose of marrying the

prosecutrix. In Suraj Kushwah v. State of M.P,14the Madhya Pradesh High Court

granted temporary bail to the accused for a crime under sections 376 (2)(n), 506 IPC

read with Sections 3(1) (W-II), 3(2)(V), 3(2)(v-a) of the SC/ST (Prevention of

Atrocities) Act, 1989 for the purpose of solemnizing marriage with the prosecutrix.

The appellants submit that in POCSO and rape cases, no observation/condition

10 M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015

11Crl. O.P. No. 1881/2015.

12 CRM No. 2961/2020 Order dated 16.04.2020 of the Calcutta High Court

13 BLAPL No. 2596/2020 Order dated 02.06.2020, passed by Orissa High Court.

14 CRA No. 3353/2020 Order dated 02.09.2020 passed by the Madhya Pradesh High Court

should be made, which takes note of the fact that the survivor has attained majority

and that the accused has offered to marry her.

11. Vikas Garg v. State of Haryana15, by the High Court of Punjab is cited, where

the court granted bail to three persons accused of committing offences under Sections

376D, 376(2)(n), 376, 292, 120-B, 506 IPC and Section 67 of the IT Act, and made

observations regarding the prosecutrix’s “casual relationships”,“promiscuous

attitude”, “voyeuristic mind”, etc. The appellants submit that no

observation/condition should be made which grants bail on the ground that the victim

is of “loose character” or is “habituated to sexual intercourse.”

12. Counsel for the Intervenors submitted that under sections 437(2) and 438, the

power to impose conditions have been expressed in very wide terms by using the

phrase “any condition.” Recently, High Courts while granting bail under these

sections have started imposing irrelevant conditions. The Intervenors have annexed

around twenty-three orders in which such conditions for bail were imposed. They

argue that the conditions that can be imposed under the law are clearly laid down by

the Supreme Court in the case of Munish Bhasin v. State16 and reiterated in Parvez

Noordin Lokhandwalla v. State of Maharashtra.17 Accordingly, it is clear that

imposing conditions like rendering community service in COVID hospitals or in any

other institution, plantation of trees, contributing to any particular charity relief fund,

etc. is impermissible in law. The Intervenors further submit that the accused, during

pendency of the trial are presumed innocent and their guilt is as yet to be adjudicated

by the Court. Imposition of conditions like compulsive community service, etc. is

violative of the right to equality and personal liberty, including procedure established

by law in the Indian Constitution.

13. The Intervenors also submit that the Court while deciding a bail application,

cannot assume the role of a social reformer or fund raiser for charities and impose

15Cr. M. No. 23962/2017, order dated 13.09.2017 passed by the Punjab and Haryana High Court

16(2009) 4 SCC 45

17(2020) 10 SCC 77

conditions which have no nexus with the offense or relevance with the object of the

bail provisions.

14. It was submitted that in IA No. 102226/2020, the appellants have brought to the

notice of this Court, several other instances in which similar directions have been

made by High Courts and Trial Courts across the country. Such wide prevalence

necessitates the urgent intervention of this Court to firstly, declare that such remarks

are unacceptable and have the potential to cause grave harm to the prosecutrix and the

society at large, secondly, reiterate that judicial orders have to conform to certain

judicial standards, and thirdly, take necessary steps to ensure that this does not happen

in the future.

15. It was further submitted that this Court should intervene and issue directions or

guidelines on bail and anticipatory bail to ensure that courts impose only those

conditions as are permissible in law. Further, this Court was urged to issue directions

on gender sensitization of the bar and the bench, particularly with regard to judicial

empathy for the prosecutrix.

16. The learned Attorney General, who had been issued notice in this matter, made

his submissions in support of the appeal; he also filed a detailed note suggesting the

steps that should be taken to sensitize all stakeholders, especially courts, while

dealing with offences against women. Highlighting the observations made in Kunal

Kumar (supra), Sumit Mehta (supra), State of Punjab v. Gurmit Singh18 and Sakshi v.

State19, the learned Attorney General submitted that while relying upon the

observations made in the above-mentioned cases, the court may highlight that in cases

of crimes against women, the following additional considerations may be kept in

mind:

i. Bail conditions should not mandate or even permit contact between the accused

and the victim.

18 (1996) 2 SCC 384

19 (2004) 5 SCC 518

ii. Bail conditions must seek to protect the complainant from any harassment by

the accused.

iii. Where considered necessary, the complainant/prosecutrix may be heard on

whether there is any peculiar circumstance which may require additional

conditions for her protection.

iv. Wherever bail is granted, the complainant may immediately be informed that

the accused has been granted bail.

v. Bail conditions must be free from stereotypical or patriarchal notions on

women and their place in society, and must strictly be in accordance with the

requirements of the CrPC.

vi. The Courts while adjudicating a case, should not suggest or entertain any

notions (or encourage any step) towards compromises between the prosecutrix

and the accused to get married, as it is beyond their powers and jurisdiction.

17. On gender equality and gender sensitization, the Attorney General argued that

to achieve the goal of gender justice, it is imperative that judicial officers, judges, and

members of the bar are made aware of gender prejudices that hinder justice.

Accordingly, he submitted that the foremost aspect to facilitate a gender sensitive

approach, is to train judges to exercise their discretion and avoid the use of genderbased

stereotypes while deciding cases pertaining to sexual offences. Secondly,

judges should have sensitivity to the concerns of the survivor of sexual offences.

18. Reliance was placed on the Bangkok General Guidance for Judges on

Applying a Gender Perspective in South East Asia, by the International Commission

of Jurists. It was pointed out that the following stereotypes are often encountered in

the course of judicial decision-making and should be avoided: -

i. Women are physically weak;

ii. Women cannot make decisions on their own;

iii. Men are the head of the household and must make all the decisions related to

family;

iv. Women should be submissive and obedient;

v. Good women are sexually chaste;

vi. Every woman wants to be a mother;

vii. Women should be the ones in charge of their children;

viii. Being alone at night or wearing certain clothes make women responsible for

being attacked;

ix. Women are emotional and often overreact or dramatize hence it is necessary to

corroborate their testimony;

x. Testimonial evidence provided by women who are sexually active may be

suspected when assessing “consent” in sexual offence cases; and

xi. Lack of evidence of physical harm in sexual offense case means consent was

given.

19. The Attorney General submitted that training for gender sensitization for

judges at all levels of the judiciary should mandatorily be conducted at regular

intervals by the National Judicial Academy and State Judicial Academies. He

emphasized that any directions towards gender sensitization should include judges of

all levels of the judiciary. Further, the counsel urged that courses on gender

sensitization should be included in the curriculum of law schools, and the All-India

Bar Exam should include questions on gender sensitization as well. In addition to

this, he recommended that a detailed curriculum may be prepared with the help of

subject matter experts by each High Court, to be a part of the syllabus for the Judicial

Services Exams and training for inducted judges.

Nature of the beast20: the problem

20. Women often experience obstacles in gaining access to mechanisms of redress,

including legal aid, counselling services and shelters. They are re-victimized and

exposed to further risk of violence through the denial of redress in the context of

informal trials or negotiations between families and community leaders. The payment

of financial compensation by the perpetrator or his family for acts of violence against

women, in lieu of legal remedies, was a recurrent concern vis-à-vis the formal and

informal justice systems. Violence against women in India is systematic and occurs in

20 A phrase that means the traits inherent to a thing or situation, especially a negative or difficult one (See

https://idioms.thefreedictionary.com/the+nature+of+the+beast)

the public and private spheres. It is underpinned by the persistence of patriarchal

social norms and inter- and intra-gender hierarchies. Women are discriminated against

and subordinated not only on the basis of sex, but on other grounds too, such as caste,

class, ability, sexual orientation, tradition and other realities.21

21. Gender violence is most often unseen and is shrouded in a culture of silence.

The causes and factors of violence against women include entrenched unequal power

equations between men and women that foster violence and its acceptability,

aggravated by cultural and social norms, economic dependence, poverty and alcohol

consumption, etc. In India, the culprits are often known to the woman; the social and

economic "costs" of reporting such crimes are high. General economic dependence on

family and fear of social ostracization act as significant disincentives for women to

report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual

incidence of violence against women in India is probably much higher than the data

suggests, and women may continue to face hostility and have to remain in

environments where they are subject to violence. This silence needs to be broken. In

doing so, men, perhaps more than women have a duty and role to play in averting and

combating violence against women.

22. Unlike many other victims of interpersonal crimes such as theft, robbery or

muggings, survivors of sexual assault are vulnerable to being blamed for their attack,

and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has

been the focus of several writings. Myths and stereotypes “underlie and fuel sexual

violence against women and inform negative societal reactions”.22 Joanne Conaghan

points out pertinently that “removing the doctrinal debris of a legally instituted

gendered hierarchical order does not necessarily get rid of deeply ingrained social

21Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, on her Mission to India

(22 April to 1 May, 2013) A/HRC/26/38/Add.1 (accessible at

www.ohchr.org › Documents › A-HRC-26-38-Add1_en)

22 Shannon Sampert, "Let Me Tell You a Story: English-Canadian Newspapers and Sexual Assault Myths" (2010) 22:2

Canadian Journal of Women and the Law 301 at 304; also Janice Du Mont, and Deborah Parmis; "Judging Women: The

Pernicious Effects of Rape Mythology” (1999) 19:1-2 Canadian Woman Studies 102 at 102

and cultural attitudes which law has long endorsed and which continue to infuse the

criminal justice process, albeit in more covert, less accessible forms.”23

23. Sexual violence is varied in degree. At the highest (or, rather most aggravated)

level, is rape with or without attendant violence. However, there are a substantial

number of incidents which fall within the rubric of sexual violence, that amount to

offences under various penal enactments. These outlaw behaviours such as stalking,

eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes

typically characterize this latter category of crimes as “minor” offences. Such “minor”

crimes are, regrettably not only trivialised or normalized, rather they are even

romanticized and therefore, invigorated in popular lore such as cinema. These

attitudes – which indulgently view the crime through prisms such as “boys will be

boys” and condone them, nevertheless have a lasting and pernicious effect on the

survivors.

24. The United Nations Organisation has defined “violence against women” as

“any act of gender based violence that results in, or is likely to result in, physical,

sexual or psychological harm or suffering to women, including threats of such acts,

coercion or arbitrary deprivation of liberty, whether occurring in public or private

life.”24 The effect of offensive behaviour against women, which laws criminalize-

23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113

24The Declaration on the Elimination of Violence Against Women (also ‘DEVAW). Articles 1 and 2 read as follows:

“Article One:

For the purposes of this Declaration, the term “violence against women” means any act of gender-based

violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including

threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Article Two:

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of

female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional

practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape,

sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in

women and forced prostitution;

physical, verbal, or other acts which threaten or give them acute discomfort,

undermining their dignity, self-worth and respect, is to silence or subdue the survivor.

25. In The Standard of Social Justice as a Research Process25 two scholars of

psychology made a strong indictment of the (contextually, Canadian) criminal justice

process:

“The more general indictment of the current criminal justice process

is that the law and legal doctrines concerning sexual assault have

acted as the principle [sic] systemic mechanisms for invalidating the

experiences of women and children. Given this state of affairs, the

traditional view of the legal system as neutral, objective and genderblind

is not defensible. Since the system is ineffective in protecting the

rights of women and children, it is necessary to re-examine the

existing doctrines which reflect the cultural and social limitations that

have preserved dominant male interests at the expense of women and

children.”

Previous rulings

26. In Kunal Kumar Tiwari v. State of Bihar (supra), this court while dealing with

Section 437(3)(c), Cr. PC (general conditions of bail) observed as follows:

“9. There is no dispute that Sub-clause (c) of Section 437(3) allows

Courts to impose such conditions in the interest of justice. We are

aware that palpably such wordings are capable of accepting broader

meaning. But such conditions cannot be arbitrary, fanciful or extend

beyond the ends of the provision. The phrase 'interest of justice' as

used under the Sub-clause (c) of Section 437(3) means "good

administration of justice" or "advancing the trial process" and

inclusion of broader meaning should be shunned because of purposive

interpretation.”

27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court, with respect to the

conditions that can be imposed validly under section 438(2) of the CrPC, observed

that:

“11. While exercising power under Section 438 of the Code, the Court

is duty bound to strike a balance between the individual's right to

25(1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park at p. 100

personal freedom and the right of investigation of the police. For the

same, while granting relief Under Section 438(1), appropriate

conditions can be imposed Under Section 438(2) so as to ensure an

uninterrupted investigation. The object of putting such conditions

should be to avoid the possibility of the person hampering the

investigation. Thus, any condition, which has no reference to the

fairness or propriety of the investigation or trial, cannot be

countenanced as permissible under the law. So, the discretion of the

Court while imposing conditions must be exercised with utmost

restraint.”

28. It was urged that the observations made in Kunal Kumar and Sumit Mehta

ought to be followed while imposing bail conditions. The appellants relying upon the

observations made in para 18 of State of M.P v. Madanlal,26 submit that in cases of

sexual offences, the concept of compromise, especially in the form of marriage

between the accused and the prosecutrix shall not be thought of, as any such attempt

would be offensive to the woman’s dignity.

“18. …We would like to clearly state that in a case of rape or attempt

of rape, the conception of compromise under no circumstances can

really be thought of. These are crimes against the body of a woman

which is her own temple. These are offences which suffocate the

breath of life and sully the reputation. And reputation, needless to

emphasise, is the richest jewel one can conceive of in life. No one

would allow it to be extinguished. When a human frame is defiled, the

“purest treasure”, is lost. Dignity of a woman is a part of her nonperishable

and immortal self and no one should ever think of painting

it in clay. There cannot be a compromise or settlement as it would be

against her honour which matters the most. It is sacrosanct.

Sometimes solace is given that the perpetrator of the crime has

acceded to enter into wedlock with her which is nothing but putting

pressure in an adroit manner; and we say with emphasis that the

Courts are to remain absolutely away from this subterfuge to adopt a

soft approach to the case, for any kind of liberal approach has to be

put in the compartment of spectacular error. Or to put it differently, it

would be in the realm of a sanctuary of error.”

26 (2015) 7 SCC 681

29. The decision in Ramphal v. State of Haryana27 by order dated 27.11.2019, took

note of the compromise between the survivor and accused persons but found that such

compromise is of no relevance when deciding on rape and cases of sexual assault.

“It is brought to our notice that during the pendency of the appeals,

both the appellants have paid Rs. 1.5 lakhs each in favor of the

prosecutrix and she has accepted the same willingly for getting the

matter compromised. However, it is imperative to emphasize that we

do not accept such compromise in matters relating to the offence of

rape and similar cases of sexual assault. Hence, the aforesaid

compromise is of no relevance in deciding this matter. On merits, we

do not find any ground to interfere in as much as the evidence of the

prosecutrix is coupled with the medical evidence which clearly proves

that the offence of rape has been committed. Therefore, the Trial

Court and the High Court have rightly convicted the

accused/appellants.”

30. Empirically, the statistics regarding certain kinds of crimes against women have

not shown any significant decline. In states and union territories, 32033 rape cases

(under Section 376 IPC) were registered in 2019; 4038 cases of attempt to rape were

registered the same year (under Section 376 read with Section 511, IPC). As many as

88,387 cases under Section 354 IPC were registered the same year, whereas 6939

cases were registered under Section 509 (outraging the modesty of a woman) in 2019.

In all, a total of 4, 05,861 crimes against women were reported in 2019 (as against

359849 in 2017 and 378236 in 2018). The statistic for a relatively new species of

offensive activities, cybercrimes that are women-centric, such as Transmitting of

Sexually Explicit Material (Sec. 67A/67B, Information Technology Act),

Blackmailing Defamation/Morphing/creating Fake Profile etc) registered in 2019,

were 1645. POCSO offences, where girl children were victims, reported in 2019 were

46,005.28

The role of the courts and law enforcement agencies as neutral authorities, under a

duty to ensure fairness

27Crl. A. No. 438/2011

28https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf

31. The role of all courts is to make sure that the survivor can rely on their

impartiality and neutrality, at every stage in a criminal proceeding, where she is the

survivor and an aggrieved party. Even an indirect undermining of this responsibility

cast upon the court, by permitting discursive formations on behalf of the accused, that

seek to diminish his agency, or underplay his role as an active participant (or

perpetrator) of the crime, could in many cases, shake the confidence of the rape

survivor (or accuser of the crime) in the impartiality of the court. The current attitude

regarding crimes against women typically is that “grave” offences like rape are not

tolerable and offenders must be punished. This, however, only takes into

consideration rape and other serious forms of gender-based physical violence. The

challenges Indian women face are formidable: they include a misogynistic society

with entrenched cultural values and beliefs, bias (often sub-conscious) about the

stereotypical role of women, social and political structures that are heavily malecentric,

most often legal enforcement structures that either cannot cope with, or are

unwilling to take strict and timely measures. Therefore, reinforcement of this

stereotype, in court utterances or orders, through considerations which are extraneous

to the case, would impact fairness.

32. Academic writings highlight that a judgment at all levels has a number of

distinct audiences, each of which engages with it in a different way. The parties to the

case and their counsel will be interested in how the judge resolves their specific

dispute - what the law gives to or requires of them. At the same time, in a legal system

where judgments of courts set precedents, and in particular within a common law

system, judgments have significance beyond their authoritative resolution of a

specific dispute—particularly in the Supreme Court. Thus, the judge is not only

communicating to the parties their rights and liabilities in the context of the specific

dispute being litigated; the judge is also addressing the broader legal community—

other lawyers, judges, legal academics, law students—and indeed the public at

large.29

33. 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. The law criminalizes outraging the modesty of a woman. Granting bail, subject

to such conditions, renders the court susceptible to the charge of re-negotiating and

mediating justice between confronting parties in a criminal offence and

perpetuating gender stereotypes.

34. The Inter-American Commission on Human Rights has noted that judicial

stereotyping “is a common and pernicious barrier to justice, particularly for women

victims and survivors of violence. Such stereotyping causes judges to reach a view

about cases based on preconceived beliefs, rather than relevant facts and actual

enquiry.”30 Furthering of rape myths and stereotypes by the judiciary, limits the

emancipatory potential of the law.

35. ‘Judicial stereotyping’ refers to the practice of judges ascribing to an

individual specific attributes, characteristics or roles by reason only of her or his

membership in a particular social group (e.g. women). It is used, also, to refer to the

practice of judges perpetuating harmful stereotypes through their failure to challenge

them, for example by lower courts or parties to legal proceedings.31 Stereotyping

29Erica Rackley, The Art and Craft of Writing Judgements in Hunter, Rosemary and McGlynn, Clare

and Rackley, Erika, eds. FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE, Hart Publishing, Oxford.

30 Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence: Education

and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to

the Office of the High Commissioner for Human Rights (2014).

31 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for

Human Rights (2014), p. 2.

excludes any individualized consideration of, or investigation into, a person’s actual

circumstances and their needs or abilities.32

36. There have been notable rulings by the CEDAW33 Committee in this regard. In

V.K. v. Bulgaria34, the Committee observed that:

‘stereotyping affects women’s right to a fair trial and that the

judiciary must be careful not to create inflexible standards based on

preconceived notions of what constitutes domestic or gender-based

violence’.

37. In Karen Tayag Vertido v. The Philippines35, the CEDAW Committee stressed

that court should not create “inflexible standards” of what women should be or have

done, when confronted with a situation of rape.

38. Judges can play a significant role in ridding the justice system of harmful

stereotypes. They have an important responsibility to base their decisions on law and

facts in evidence, and not engage in gender stereotyping. This requires judges to

identify gender stereotyping, and identify how the application, enforcement or

perpetuation of these stereotypes discriminates against women or denies them equal

access to justice. Stereotyping might compromise the impartiality of a judge’s

decision and affect his or her views about witness credibility or the culpability of the

accused person.36As a judge of the Canadian Supreme Court remarked:

“Myths and stereotypes are a form of bias because they impair the

individual judge’s ability to assess the facts in a particular case in an

open-minded fashion. In fact, judging based on myths and stereotypes

is entirely incompatible with keeping an open mind, because myths

32Supra, p. 17.

33The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted in 1979

by the UN General Assembly; it is sometimes described as an international bill of rights for women. The CEDAW

Committee is set up under Article 17 of CEDAW.

34V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008 (2011) (CEDAW)

35Karen Tayag Vertido v. The Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010)

(CEDAW), para. 8.4.

36 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for

Human Rights (2014), p. 22.

and stereotypes are based on irrational predisposition and

generalization, rather than fact.”37

39. The stereotype of the ideal sexual assault victim disqualifies several accounts

of lived experiences of sexual assault. Rape myths38 undermine the credibility of

those women who are seen to deviate too far from stereotyped notions of chastity,

resistance to rape, having visible physical injuries, behaving a certain way, reporting

the offence immediately, etc. In the words of the Supreme Court of Canada, in R v.

Seaboyer,39

“The woman who comes to the attention of the authorities has her

victimization measured against the current rape mythologies, i.e., who

she should be in order to be recognized as having been, in the eyes of

the law, raped; who her attacker must be in order to be recognized, in

the eyes of the law, as a potential rapist; and how injured she must be

in order to be believed.”

40. The Bangalore Principles of Judicial Conduct, 2002, were from a meeting of

Chief Justices of Asian and African countries, and endorsed by the UN Commission

on Human Rights, the ECOSOC and the Commission on Crime Prevention and

Criminal Justice. The Bangalore Principles provide that:

“2.4 A judge shall not knowingly, while a proceeding is before, or

could come before, the judge, make any comment that might

reasonably be expected to affect the outcome of such proceeding or

impair the manifest fairness of the process. Nor shall the judge make

any comment in public or otherwise that might affect the fair trial of

any person or issue.

********

5.1 A judge shall be aware of, and understand, diversity in society and

differences arising from various sources, including but not limited to

race, colour, sex, religion, national origin, caste, disability, age,

37 The Honourable Madame Justice Claire L’Heureux-Dubé, ‘Beyond the Myths: Equality, Impartiality, and Justice’

(2001) 10(1) Journal of Social Distress and the Homeless 87, 88.

38 Explained in R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case) as opinions improperly forming the background

for considering evidentiary issues in sexual assault trials. These include the false concepts that: women cannot be raped

against their will; only “bad girls” are raped; anyone not clearly of “good character” is more likely to have consented.

39R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L’Heureux-Dubé & Gonthier JJ, dissenting in part) (Canada, Supreme

Court).

marital status, sexual orientation, social and economic status and

other like causes ("irrelevant grounds").

5.2 A judge shall not, in the performance of judicial duties, by words

or conduct, manifest bias or prejudice towards any person or group

on irrelevant grounds.”

41. This court held, in State of Punjab v. Gurmit Singh & Ors.40 that:

“The trial court not only erroneously disbelieved the prosecutrix, but

quite uncharitably and unjustifiably even characterised her as a girl

“of loose morals” or “such type of a girl”. … We must express our

strong disapproval of the approach of the trial court and its casting a

stigma on the character of the prosecutrix. The observations lack

sobriety expected of a judge. … The courts are expected to use selfrestraint

while recording such findings which have larger

repercussions so far as the future of the victim of the sex crime is

concerned and even wider implications on the society as a whole –

where the victim of crime is discouraged – the criminal encouraged

and in turn crime gets rewarded!’

*****

“Language is 'a medium of social action' not 'merely a vehicle of

communication' and the written judicial opinion is the primary, if not

the sole, medium in which judges within our judicial system execute

language.”41

*****

…the text of judicial decisions and opinions constitutes the law by

which our common law system abides and the basis on which judges,

lawyers, and citizens make reasoned legal judgments about future

action.”42

42. This Court therefore holds that the use of reasoning/language which diminishes

the offence and tends to trivialize the survivor, is especially to be avoided under all

circumstances. Thus, the following conduct, actions or situations are hereby deemed

irrelevant, e.g. - 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

40State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384.

41 Rachael K. Hinkle et al., A Positive Theory and Empirical Analysis of Strategic Word Choice in District Court

Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012).

42Ibid, at p. 409.

“Indian” women, or that she had called upon the situation by her behavior, etc. These

instances are only illustrations of an attitude which 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 relief. Similarly, 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.

43. The instances spelt out in the present judgment are only illustrations; the idea

is that the 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 (of any kind from the most aggravated to the so-called minor offences).

44. Having regard to the foregoing discussion, it is hereby directed that henceforth: