Aparna Bhat vs The State Of Madhya Pradesh on 18 March, 2021


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Supreme Court of India

Aparna Bhat vs The State Of Madhya Pradesh on 18 March, 2021

Author: S. Ravindra Bhat

Bench: A.M. Khanwilkar, S. Ravindra Bhat

                                                         1



                                                                                        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.                                                    …APPELLANT (S)

                                                     VERSUS

  STATE OF MADHYA PRADESH & ANR.                                                   ….RESPONDENT(S)



                                                    JUDGEMENT

S. RAVINDRA BHAT, J.

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
Signature Not Verified

Digitally signed by

of counsel for the parties, the appeal was heard finally. The appellants also filed an
DEEPAK SINGH
Date: 2021.03.18
16:24:26 IST
Reason:

1 In Vikram v. The State of Madhya Pradeshin MCRC 23350/ 2020, dated 30.7.2020
2

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.”
3

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
4

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
register himself as a Covid-19 Warrior” and was to be assigned work of Covid-19
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.

5

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
6

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
7

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
8

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 gender-
based 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;

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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)
10

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
11

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;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.”
12

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 Process 25 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 gender-

blind 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
13

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 non-
perishable 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
14

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
15

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 male-
centric, 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—
16

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.

17

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.

18

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).

19

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 self-
restraint 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.

20

“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:

(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
21

considered and appropriate order made, in addition to a direction to the accused not to
make any contact with the victim;

(c) 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;

(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 mandate
mediation 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.

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
22

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.

47. The National Judicial Academy is hereby requested to devise, speedily, the
necessary inputs which have to be made part of the training of young judges, as well
as form part of judges’ continuing education with respect to gender sensitization, with
adequate awareness programs regarding stereotyping and unconscious biases that can
creep into judicial reasoning. The syllabi and content of such courses shall be framed
after necessary consultation with sociologists and teachers in psychology, gender
studies or other relevant fields, preferably within three months. The course should
23

emphasize upon the relevant factors to be considered, and importantly, what should
be avoided during court hearings and never enter judicial reasoning. Public
Prosecutors and Standing Counsel too should undergo mandatory training in this
regard. The training program, its content and duration shall be developed by the
National Judicial Academy, in consultation with State academies. The course should
contain topics such as appropriate court-examination and conduct and what is to be
avoided.

48. Likewise, the Bar Council of India (BCI) should also consult subject experts
and circulate a paper for discussion with law faculties and colleges/universities in
regard to courses that should be taught at the undergraduate level, in the LL.B
program. The BCI shall also require topics on sexual offences and gender
sensitization to be mandatorily included in the syllabus for the All India Bar
Examination.

49. Before parting, this Court expresses its gratitude for the valuable suggestions
and the assistance rendered by the learned Attorney General pursuant to the notice
issued. We also appreciate the submissions made on behalf of the appellant(s) and
the intervenor(s).

50. Each High Court should, with the help of relevant experts, formulate a module
on judicial sensitivity to sexual offences, to be tested in the Judicial Services
Examination.

51. In the light of the above, the bail conditions in the impugned judgment,
extracted at para 3 above, are set aside, and expunged from the record.

52. Before concluding, it would be appropriate to quote certain excerpts from the
Canadian Commentaries on Judicial Conduct:43

43 Les Éditions Yvon Blais Inc, 1991, quoted by Rt. Hon’ble Beverley Mclachlin, former Chief Justice of Canada, in
her Speech Judging in a Democratic State https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx#fnb10
24

“[T]he wisdom required of a judge is to recognize, consciously allow
for, and perhaps to question, all the baggage of past attitudes and
sympathies that fellow citizens are free to carry, untested, to the
grave.

True impartiality does not require that the judge have no sympathies
or opinions; it requires that the judge nevertheless be free to entertain
and act upon different points of view with an open mind.”

53. Judges play – at all levels – a vital role as teachers and thought leaders. It is
their role to be impartial in words and action, at all times. If they falter, especially in
gender related crimes, they imperil fairness and inflict great cruelty in the casual
blindness to the despair of the survivors.

54. The appeal is disposed of in the above terms; there shall be no order on costs.

……………………………………..J
[A. M. KHANWILKAR]

…………………………………………..J
[S. RAVINDRA BHAT]

New Delhi,
March 18, 2021.



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