Tying ‘rakhi’ as bail condition in sexual offence unacceptable, order transforms molester into brother: SC

Team Udayavani, Mar 18, 2021, 8:23 PM IST

New Delhi: The Supreme Court Thursday termed as “wholly unacceptable” the Madhya Pradesh High Court order setting ‘rakhi’ tying as a condition of bail to an accused in a sexual offence case, saying it “transforms a molester into a brother, by a judicial mandate”.

The apex court also issued a slew of directions to be followed by judges while dealing with sexual offence cases, saying certain attitudes such as references to survivors’ previous consent, promiscuous behaviour, clothing and so on should ”never enter judicial verdict”.

The top court’s judgement came on a plea by nine citizens against the high court verdict imposing “bizarre” bail condition of ‘rakhi’ tying on the accused by the victim. They had also sought clear directions to all courts to refrain from imposing “irrelevant, freaky or illegal bail conditions”.

A bench of justices A M Khanwilkar and S Ravindra Bhat set aside the HC verdict and said, “this court…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.” “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 criminalises 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,” said Justice Bhat who wrote the judgement.

The apex court also directed the Bar Council of India to work on “training and sensitization of judges and lawyers, including public prosecutors”. Giving some illustrations, the verdict said the language and reasoning trivializing the survivor should 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 ‘Indian’ women, or that she had called upon the situation by her behaviour, 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,” it said. The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge, it said.

“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,” it said, adding the role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in criminal proceedings.

“Bail conditions should not mandate, require or permit contact between the accused and the victim and such conditions should seek to protect the complainant from any further harassment by the accused,” the bench said in its direction.

Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, 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, it said.

“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,” it directed. 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 law, it said.

“In other words, discussion about the dress, behaviour, or past ‘conduct’ or ‘morals’ of the prosecutrix, should not enter the verdict granting bail,” it said, adding “the courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions towards compromises between the victim and the accused to get married, suggest or mandate mediation between the accused.

“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,” it said.

Judges should not use any words that undermine or shake the confidence of the survivor, it said.

A huge controversy had erupted and an appeal was filed by lawyer Aparna Bhat after the Madhya Pradesh High Court granted anticipatory bail to a married man in a case related to outraging the modesty of woman. “The applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 am with a box of sweets and request the complainant…to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come..,” it had ordered.