APARNA BHAT & ORS. versus STATE OF MADHYA PRADESH & ANR.

[2021] 4 S.C.R. 479

APARNA BHAT & ORS.

STATE OF MADHYA PRADESH & ANR.

(Criminal Appeal No. 329 of 2021)

MARCH 18, 2021

[A. M. KHANWILKAR AND S. RAVINDRA BHAT, JJ.]

Bail condition – Accused guilty of sexual offence – Rakhitying as condition for bail, propriety – Imposing conditions thatimplicitly tend to condone or diminish the harm caused by theaccused and have the effect of potentially exposing the survivor tosecondary trauma is forbidden – The law does not permit orcountenance such conduct, where the survivor can potentially betraumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances toaccept and condone behavior what is serious offence – Usingrakhi tying as condition for bail, transforms molester into abrother, by judicial mandate – This is wholly unacceptable, andhas the effect of diluting and eroding the offence of sexualharassment – The act perpetrated on the survivor constitutes anoffence in law, and is not minor transgression that can be remediedby way of an apology, rendering community service, tying rakhior presenting gift to the survivor, or even promising to marry her,as the case may be – The law criminalizes outraging the modesty ofa woman – Granting bail, subject to such conditions, renders thecourt susceptible to the charge of re-negotiating and mediatingjustice between confronting parties in criminal offence andperpetuating gender stereotypes – Crime against women – Genderviolence.

Crime against women: Sexual offences – Role of the courtsand law enforcement agencies as neutral authorities, under dutyto ensure fairness – The courts while adjudicating cases involvinggender related crimes, should not suggest or entertain any notions(or encourage any steps) towards compromises between theprosecutrix and the accused to get married, suggest or mandatemediation between the accused and the survivor, or any form of

Acompromise as it is beyond their powers and jurisdiction – Sensitivityshould be displayed at all times by judges, who should ensure thatthere is no traumatization of the prosecutrix, during the proceedings– Judicial restraint.

Judicial stereotyping: Concept of – It is common andBpernicious barrier to justice, particularly for women victims andsurvivors of violence – Such stereotyping causes judges to reach aview about cases based on preconceived beliefs, rather than relevantfacts and actual enquiry – ‘Judicial stereotyping’ refers to thepractice of judges ascribing to an individual specific attributes,characteristics or roles by reason only of her or his membership inCa particular social group (e.g. women) – It is used, also, to refer tothe practice of judges perpetuating harmful stereotypes throughtheir failure to challenge them, for example by lower courts or partiesto legal proceedings – Stereotyping excludes any individualizedconsideration of, or investigation into, person’s actualDcircumstances and their needs or abilities.Administration of justice: Role of the courts – Judges canplay significant role in ridding the justice system of harmfulstereotypes – They have an important responsibility to base theirdecisions on law and facts in evidence, and not engage in genderEstereotyping – This requires judges to identify gender stereotyping,and identify how the application, enforcement or perpetuation ofthese stereotypes discriminates against women or denies them equalaccess to justice – Stereotyping might compromise the impartialityof judge’s decision and affect his or her views about witnesscredibility or the culpability of the accused person – The stereotypeFof the ideal sexual assault victim disqualifies several accounts oflived experiences of sexual assault – Rape myths undermine thecredibility of those women who are seen to deviate too far fromstereotyped notions of chastity, resistance to rape, having visiblephysical injuries, behaving certain way, reporting the offenceGimmediately, etc. – Judicial stereotyping – Judicial Bias.

Disposing of the appeal, the Court

HELD : 1. Women often experience obstacles in gainingaccess to mechanisms of redress, including legal aid, counsellingservices and shelters. They are re-victimized and exposed toH

further risk of violence through the denial of redress in thecontext of informal trials or negotiations between families andcommunity leaders. The payment of financial compensation bythe perpetrator or his family for acts of violence against women,in lieu of legal remedies, was recurrent concern vis-à-vis theformal and informal justice systems. Violence against women inIndia is systematic and occurs in the public and private spheres.It is underpinned by the persistence of patriarchal social normsand inter- and intra-gender hierarchies. Women are discriminatedagainst and subordinated not only on the basis of sex, but onother grounds too, such as caste, class, ability, sexual orientation,tradition and other realities. [Para 20][497-A-D]

2. Gender violence is most often unseen and is shroudedin culture of silence. The causes and factors of violence againstwomen include entrenched unequal power equations between menand women that foster violence and its acceptability, aggravatedby cultural and social norms, economic dependence, poverty andalcohol consumption, etc. In India, the culprits are often knownto the woman; the social and economic “costs” of reporting suchcrimes are high. General economic dependence on family andfear of social ostracization act as significant disincentives forwomen to report any kind of sexual violence, abuse or abhorrentbehaviour. Therefore, the actual incidence of violence againstwomen in India is probably much higher than the data suggests,and women may continue to face hostility and have to remain inenvironments where they are subject to violence. This silenceneeds to be broken. In doing so, men, perhaps more than womenhave duty and role to play in averting and combating violenceagainst women. [Para 21][497-D-F]

3. Unlike many other victims of interpersonal crimes suchas theft, robbery or muggings, survivors of sexual assault arevulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault caseshas been the focus of several writings. Myths and stereotypes“underlie and fuel sexual violence against women and informnegative societal reactions”. Joanne Conaghan points outpertinently that “removing the doctrinal debris of legally institutedgendered hierarchical order does not necessarily get rid of deeply

Aingrained social and cultural attitudes which law has long endorsedand which continue to infuse the criminal justice process, albeit inmore covert, less accessible forms.” [Para 22][497-F-H; 498-A-B]

4. Sexual violence is varied in degree. At the highest (or,rather most aggravated) level, is rape with or without attendantBviolence. However, there are substantial number of incidentswhich fall within the rubric of sexual violence, that amount tooffences under various penal enactments. These outlawbehaviours such as stalking, eve-teasing, shades of verbal andphysical assault, and harassment. Social attitudes typicallycharacterize this latter category of crimes as “minor” offences.CSuch “minor” crimes are, regrettably not only trivialised ornormalized, 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 “boyswill be boys” and condone them, nevertheless have lasting andDpernicious effect on the survivors. [Para 23][498-C-E]

5. The United Nations Organisation has defined “violenceagainst women” as “any act of gender based violence that resultsin, or is likely to result in, physical, sexual or psychological harmor suffering to women, including threats of such acts, coercion orarbitrary deprivation of liberty, whether occurring in public or privateElife. The effect of offensive behaviour against women, which lawscriminalize- physical, verbal, or other acts which threaten or givethem acute discomfort, undermining their dignity, self-worth andrespect, is to silence or subdue the survivor. [Para 24][498-E-F;499-A]F6. Empirically, the statistics regarding certain kinds ofcrimes against women have not shown any significant decline. Instates and union territories, 32033 rape cases (under Section376 IPC) were registered in 2019; 4038 cases of attempt to rapewere registered the same year (under Section 376 read withGSection 511, IPC). As many as 88,387 cases under Section 354IPC were registered the same year, whereas 6939 cases wereregistered under Section 509 (outraging the modesty of woman)in 2019. In all, total of 4, 05,861 crimes against women werereported in 2019 (as against 359849 in 2017 and 378236 in 2018).The statistic for relatively new species of offensive activities,Hcybercrimes that are women-centric, such as Transmitting of

Sexually Explicit Material (Sec. 67A/67B, Information TechnologyAct), Blackmailing Defamation/Morphing/creating Fake Profileetc) registered in 2019, were 1645. POCSO offences, wheregirl children were victims, reported in 2019 were 46,005.[Para 30][501-F-H; 502-A-B]

The role of the courts and law enforcement agencies as neutralauthorities, under duty to ensure fairness

7. The role of all courts is to make sure that the survivorcan rely on their impartiality and neutrality, at every stage in acriminal proceeding, where she is the survivor and an aggrievedparty. Even an indirect undermining of this responsibility castupon the court, by permitting discursive formations on behalf ofthe accused, that seek to diminish his agency, or underplay hisrole as an active participant (or perpetrator) of the crime, couldin many cases, shake the confidence of the rape survivor (oraccuser of the crime) in the impartiality of the court. The currentattitude regarding crimes against women typically is that “grave”offences like rape are not tolerable and offenders must bepunished. This, however, only takes into consideration rape andother serious forms of gender-based physical violence. Thechallenges Indian women face are formidable: they include amisogynistic 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, mostoften 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, wouldimpact fairness. [Para 31][502-B-F]

8. Using rakhi tying as condition for bail, transforms amolester into brother, by judicial mandate. This is whollyunacceptable, and has the effect of diluting and eroding the offenceof sexual harassment. The act perpetrated on the survivorconstitutes an offence in law, and is not minor transgressionthat can be remedied by way of an apology, rendering communityservice, tying rakhi or presenting gift to the survivor, or evenpromising to marry her, as the case may be. The law criminalizesoutraging the modesty of woman. Granting bail, subject to suchconditions, renders the court susceptible to the charge of re-

Anegotiating and mediating justice between confronting parties ina criminal offence and perpetuating gender stereotypes.[Para 33][503-A-C]

9.1 The Inter-American Commission on Human Rights hasnoted that judicial stereotyping “is common and perniciousBbarrier to justice, particularly for women victims and survivors ofviolence. Such stereotyping causes judges to reach view aboutcases based on preconceived beliefs, rather than relevant facts andactual enquiry. Furthering of rape myths and stereotypes by thejudiciary, limits the emancipatory potential of the law. ‘Judicialstereotyping’ refers to the practice of judges ascribing to anCindividual specific attributes, characteristics or roles by reasononly of her or his membership in particular social group (e.g.women). It is used, also, to refer to the practice of judgesperpetuating harmful stereotypes through their failureto challenge them, for example by lower courts or parties toDlegal proceedings. Stereotyping excludes any individualizedconsideration of, or investigation into, person’s actualcircumstances and their needs or abilities. [Paras 34, 35][503-C-F]

V.K. v. Bulgari Communication No. 20/2008, UN Doc.CEDAW/C/49/D/20/2008 (2011) (CEDAW) – referredEto.

9.2 Judges can play significant role in ridding the justicesystem of harmful stereotypes. They have an importantresponsibility to base their decisions on law and facts in evidence,and not engage in gender stereotyping. This requires judges toFidentify gender stereotyping, and identify how the application,enforcement or perpetuation of these stereotypes discriminatesagainst women or denies them equal access to justice.Stereotyping might compromise the impartiality of judge’sdecision and affect his or her views about witness credibility orthe culpability of the accused person. The stereotype of the idealGsexual assault victim disqualifies several accounts of livedexperiences of sexual assault. Rape myths undermine thecredibility of those women who are seen to deviate too far fromstereotyped notions of chastity, resistance to rape, having visiblephysical injuries, behaving certain way, reporting the offenceHimmediately, etc. [Paras 38, 39][504-C-E; 505-A-B]

APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH& ANR.

State of Punjab v. Gurmit Singh (1996) 2 SCC 384: [1996] 1 SCR 532 - relied on.

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

10. The use of reasoning/language which diminishes theoffence and tends to trivialize the survivor, is especially to beavoided under all circumstances. Thus, the following conduct,actions or situations are hereby deemed irrelevant, e.g. - to saythat the survivor had in the past consented to such or similaracts or that she behaved promiscuously, or by her acts or clothing,provoked the alleged action of the accused, that she behaved ina manner unbecoming of chaste or “Indian” women, or that shehad called upon the situation by her behavior, etc. These instancesare only illustrations of an attitude which should never enterjudicial verdicts or orders or be considered relevant while makinga judicial decision; they cannot be reasons for granting bail orother such relief. Similarly, imposing conditions that implicitlytend to condone or diminish the harm caused by the accused andhave the effect of potentially exposing the survivor to secondarytrauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions,community service (in manner of speaking with the so-calledreformative approach towards the perpetrator of sexual offence)or requiring tendering of apology once or repeatedly, or in anymanner getting or being in touch with the survivor, is especiallyforbidden. The law does not permit or countenance such conduct,where the survivor can potentially be traumatized many timesover or be led into some kind of non-voluntary acceptance, or becompelled by the circumstances to accept and condone behaviorwhat is serious offence. [Para 42][506-G; 507-A-E]

11. The instances spelt out in the present judgment areonly illustrations; the idea is that the greatest extent of sensitivityis to be displayed in the judicial approach, language and reasoningadopted by the judge. Even solitary instance of such order orutterance in court, reflects adversely on the entire judicial systemof the country, undermining the guarantee to fair justice to all,and especially to victims of sexual violence (of any kind from the

[2021] 4 S.C.R.

Amost aggravated to the so-called minor offences). [Para 43][507-E-F]

12. Bail conditions should not mandate, require or permitcontact between the accused and the victim. Such conditionsshould seek to protect the complainant from any furtherBharassment by the accused; Where circumstances exist for thecourt to believe that there might be potential threat ofharassment of the victim, or upon apprehension expressed, aftercalling for reports from the police, the nature of protection shallbe separately considered and appropriate order made, in additionto direction to the accused not to make any contact with theCvictim; In all cases where bail is granted, the complainant shouldimmediately be informed that the accused has been granted bailand copy of the bail order made over to him/her within two days;Bail conditions and orders should avoid reflecting stereotypicalor patriarchal notions about women and their place in society,

Dand must strictly be in accordance with the requirements of theCr. PC. In other words, discussion about the dress, behavior, orpast “conduct” or “morals” of the prosecutrix, should not enterthe verdict granting bail; The courts while adjudicating casesinvolving gender related crimes, should not suggest or entertainany notions (or encourage any steps) towards compromises

Ebetween the prosecutrix and the accused to get married, suggestor mandate mediation between the accused and the survivor, orany form of compromise as it is beyond their powers andjurisdiction; Sensitivity should be displayed at all times by judges,who should ensure that there is no traumatization of the

Fprosecutrix, during the proceedings, or anything said during thearguments, and Judges especially should not use any words,spoken or written, that would undermine or shake the confidenceof the survivor in the fairness or impartiality of the court.[Para 44][507-G-H; 508-A-F]

G13. Courts should also desist from expressing anystereotype opinion, in words spoken during proceedings, or inthe course of judicial order, to the effect that (i) women arephysically weak and need protection; (ii) women are incapable ofor cannot take decisions on their own; (iii) men are the “head” ofthe household and should take all the decisions relating to family;H

(iv) women should be submissive and obedient according to ourculture; (v) “good” women are sexually chaste; (vi) motherhoodis the duty and role of every woman, and assumptions to the effectthat she wants to be mother; (vii) women should be the ones incharge of their children, their upbringing and care; (viii) beingalone at night or wearing certain clothes make women responsiblefor being attacked; (ix) woman consuming alcohol, smoking,etc. may justify unwelcome advances by men or “has asked forit”; (x) women are emotional and often overreact or dramatizeevents, hence it is necessary to corroborate their testimony; (xi)testimonial evidence provided by women who are sexually activemay be suspected when assessing “consent” in sexual offencecases; and (xii) lack of evidence of physical harm in sexual offencecase leads to an inference of consent by the woman. [Para 45][508-F-H; 509-A-C]

14. As far as the training and sensitization of judges andlawyers, including public prosecutors goes, this court herebymandates that module on gender sensitization be included, aspart of the foundational training of every judge. This module mustaim at imparting techniques for judges to be more sensitive inhearing and deciding cases of sexual assault, and eliminatingentrenched social bias, especially misogyny. The module shouldalso emphasize the prominent role that judges are expected toplay in society, as role models and thought leaders, in promotingequality and ensuring fairness, safety and security to all womenwho allege the perpetration of sexual offences against them.Equally, the use of language and appropriate words and phrasesshould be emphasized as part of this training. [Para 46][509-C-E]15. The National Judicial Academy is hereby requested todevise, speedily, the necessary inputs which have to be madepart of the training of young judges, as well as form part of judges’continuing education with respect to gender sensitization, withadequate awareness programs regarding stereotyping andunconscious biases that can creep into judicial reasoning. Thesyllabi and content of such courses shall be framed afternecessary consultation with sociologists and teachers inpsychology, gender studies or other relevant fields, preferablywithin three months. The course should emphasize upon therelevant factors to be considered, and importantly, what should

Abe avoided during court hearings and never enter judicialreasoning. Public Prosecutors and Standing Counsel too shouldundergo mandatory training in this regard. The training program,its content and duration shall be developed by the National JudicialAcademy, in consultation with State academies. The course shouldcontain topics such as appropriate court-examination and conductBand what is to be avoided. Likewise, the Bar Council of India(BCI) should also consult subject experts and circulate paperfor discussion with law faculties and colleges/universities in regardto courses that should be taught at the undergraduate level, inthe LL.B program. The BCI shall also require topics on sexualCoffences and gender sensitization to be mandatorily included inthe syllabus for the All India Bar Examination. Each High Courtshould, with the help of relevant experts, formulate module onjudicial sensitivity to sexual offences, to be tested in the JudicialServices Examination. [Paras 47, 48, 50][509-E-H; 510-A-B, C]

D16. In the light of the above, the bail conditions in theimpugned judgment, are set aside, and expunged from the record.[Para 51][510-C-D]

Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC74; Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCCE570 : [2013] 10 SCR 125; State of M.P v. Madanlal(2015) 7 SCC 681: [2015] 7 SCR 998; Ramphal v. Stateof Haryana Crl. A.No. 438 of 2011 decided on27.11.2019; Munish Bhasin v. State (2009) 4 SCC 45 :[2009] 2 SCR 806; Parvez Noordin Lokhandwalla v.State of Maharashtra (2020) 10 SCC 77; Sakshi v. StateF(2004) 5 SCC 518: [2004] 2 Suppl. SCR 723 – referredto.

APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 329 of 2021.

From the Judgment and Order dated 30.07.2020 of the High Courtof Madhya Pradesh at Indore in MCRC No. 23350 of 2020.

K K Venugopal, AG., Sanjay Parikh, Sr. Adv., PukhrambamRamesh Kumar, Ms. Karishma Maria, Satwik Parikh, V BalaramDas, Ms. Suhashini Sen, Vinam Gupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

woman cannot be herself in the society of the present day,which is an exclusively masculine society, with laws framed by menand with judicial system that judges feminine conduct from amasculine point of view.”

– Henrik Ibsen

1. Leave granted. The appellants are public-spirited individuals,concerned about the adverse precedent set by the imposition of certainbail conditions in case involving sexual offence against woman;they impugn part of the judgment of the Madhya Pradesh High Court[1]that imposed these bail conditions. With the consent of counsel for theparties, the appeal was heard finally. The appellants also filed anapplication[2], seeking directions that all the High Courts and trial Courtsbe directed to refrain from making observations and imposing conditionsin rape and sexual assault cases, at any stage of judicial proceedings,that trivialize the trauma undergone by survivors and adversely affecttheir dignity. Certain intervenors also preferred an application in supportof the appeal, seeking clear directions to all Courts to refrain fromimposing “irrelevant, freaky or illegal bail conditions”.

2. Ibsen, the prescient nineteenth century author, made powerfulstatement (quoted as the epigram at the beginning of this judgment);

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

2 Crl. M.P No. 102226/2020

Asadly, even today, in the twenty first century, after 70 years as republicwith the goal of equality for all, many courts seem to be oblivious of theproblem. In sense, this judgment is not as much about only the meritsof the impugned conditions of the bail order, but is meant to address awider canvas of (what appears to be) entrenched paternalistic andmisogynistic attitudes that are regrettably reflected at times in judicialBorders and judgments.

3. The brief facts of the case are that on 20.04.2020 at about 2.30a.m., the accused-applicant, neighbour of the complainant, entered herhouse and caught hold of the complainant’s hand, and allegedly attemptedto harass her sexually. Accordingly, Crime No. 133/2020 was registeredCat Police Station, Bhatpachlana, District-Ujjain for the offences punishableunder sections 452, 354A[3], 323 and 506 of the Indian Penal Code (IPC).The case was investigated and charge sheet was filed. The accusedfiled an application under Section 438 of Code of Criminal Procedure,1973 (hereafter “CrPC”) seeking pre-arrest bail. The High Court, byDthe impugned order, even while granting bail to the applicant imposedthe following condition which is under challenge in this petition.

(i) “The applicant along with his wife shall visit the house ofthe complainant with Rakhi thread/ band on 3[rd] August, 2020at 11:00 a.m. with box of sweets and request the complainantE-Sarda Bai to tie the Rakhi band to him with the promise toprotect her to the best of his ability for all times to come. Heshall also tender Rs. 11,000/- to the complainant as acustomary ritual usually offered by the brothers to sisters onsuch occasion and shall also seek her blessings. The applicant3 Section 354A reads as follows:F“354A. Sexual harassment and punishment for sexual harassment.—

(1) man committing any of the following acts—(i) physical contact and advances involving unwelcome and explicit sexualovertures; or

(ii) demand or request for sexual favours; or

(iii) showing pornography against the will of woman; or(iv) making sexually coloured remarks, shall be guilty of the offence of sexualGharassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) orclause (iii) of sub-section (1) shall be punished with rigorous imprisonment fora 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 term which mayHextend to one year, or with fine, or with both.”

shall also tender Rs. 5,000/- to the son of the complainant –Vishal for purchase of clothes and sweets. The applicant shallobtain photographs and receipts of payment made to thecomplainant and her son, and the same shall be filed throughthe counsel for placing the same on record of this case beforethis Registry. The aforesaid deposit of amount shall notinfluence the pending trial, but is only for enlargement of theapplicant on bail.”

4. The appellants submit that the expressions “in the interest ofjustice”, “such other conditions court considers necessary” and “asit may think fit” as provided in the bare text of the Section 437(3)(c) aswell as Section 438(2)(iv) of the CrPC, give discretion to the Courts toimpose such other conditions as may be required in the facts of particularcase, but those conditions have to be in consonance with the otherconditions in the provisions, the purpose of granting bail and no otherconsideration.

5. The appellants cite Kunal Kumar Tiwari v. State of Bihar[4]and Sumit Mehta v. State (NCT of Delhi)[5] and argue that this court’sobservations in those decisions must be followed by every court whileconsidering and dealing with bail applications. They also rely on theobservations made in para 18 of State of M.P v. Madanlal,[6 ]and urgethat in cases of sexual offences, the idea of compromise, especially inthe form of marriage between the accused and the prosecutrix is abhorrent,and should not be considered judicial remedy, as it would be antitheticalto the woman’s honour and dignity. Likewise, reliance was placed onRamphal v. State of Haryana[7], where the court took note of thecompromise between the survivor and accused, but found that suchcompromise is of no relevance when deciding on cases of rape andsexual assault.

6. The appellants brought to the notice of this Court, variousdecisions and orders where the observations made by the judges inoffences against women including cases under the Protection of Childrenfrom Sexual Offences Act, 2012 (POCSO) were extraneous. Theappellants submitted that the courts, in many cases, especially under the

4 (2018) 16 SCC 745 (2013) 15 SCC 5706 (2015) 7 SCC 6817 Crl. A. No. 438/2011decided on 27.11.2019

DEF

APOCSO Act, granted bail on the plea that an agreement to marry hadbeen reached between the accused and prosecutrix. Additionally, theyalso submitted that while adjudicating matters of sexual harassment andrape, judges have made shocking remarks on the character of theprosecutrix.

B7. Reference is made to Ravi Jatav v. State of M.P[8], where theHigh Court of Madhya Pradesh, while granting bail (to an accused ofcommitting offences under Sections 376-D, 366, 506, 34 IPC) imposedconditions that the accused “shall register himself as Covid-19Warrior” and was to be assigned work of Covid-19 disaster managementat the discretion of the District Magistrate. In Rakesh B. v. State ofCKarnataka[9], the Karnataka High Court granted bail to an accused allegedto have committed offences under Sections 376, 420, 506 IPC and Section66-B of the Information Technology Act, 2000 (“IT Act”), and maderemarks on the survivor’s conduct. The relevant extract is producedbelow:D“c) nothing is mentioned by the complainant as to why shewent to her office at night, that is, at 11 PM; she has also notobjected to consuming drinks with the petitioner and allowinghim to stay with her till morning; the explanation offered bythe complainant that after the perpetration of the act she wasEtired and fell asleep, is unbecoming of an Indian woman; thatis not the way our women react when they are ravished;”

8. The appellants submit that no observation/condition should bemade in any judgment, or orders which reflects bias of the judge oraffects the dignity of woman or affects the conduct of the trial in fairFand unbiased manner. They highlight that the impugned order, whilegranting bail, imposed condition that the applicant shall visit the houseof the complainant. The appellants submit that this is unacceptable andno observation/condition should be made which permits the accused tomeet/have access to the survivor and her family members.

G9. The appellants also cite Mohan v. State[10], where the MadrasHigh Court had referred the case of rape of minor to mediation andobserved that the case was fit for attempting compromise between

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

9 Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka.H10 M.P No. 2/2014 in Crl. No. 402/2014 order dated 18.06.2015

the parties. Likewise, Samuvel v. Inspector of Police[11 ]is cited, wherethe High Court of Madras referred to mediation, case of rape wherethe prosecutrix was minor and had become mother of child as aconsequence of rape, because the accused agreed to marry her. It isurged that no observation/condition should be made which initiates orencourages compromise that disparages and downgrades an otherwiseheinous crime thus indicating that such offences are remediable by wayof compromise/ by marriage.

10. Sopikul Sk. @ Safikul Islam v. State,[12 ]an order of the HighCourt of Calcutta in POCSO case granting bail is cited; here, reliefwas given to the accused since the prosecutrix had attained majorityand the accused intended to marry her. Further, in the case ofGyanaranjan Behera v. State of Odisha,[13] the Orissa High Court in aPOCSO case granted interim bail to the accused for the purpose ofmarrying the prosecutrix. In Suraj Kushwah v. State of M.P,[14 ]the MadhyaPradesh High Court granted temporary bail to the accused for crimeunder 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 thepurpose of solemnizing marriage with the prosecutrix. The appellantssubmit that in POCSO and rape cases, no observation/condition shouldbe made, which takes note of the fact that the survivor has attainedmajority and that the accused has offered to marry her.

11. Vikas Garg v. State of Haryana[15], by the High Court ofPunjab is cited, where the court granted bail to three persons accused ofcommitting offences under Sections 376D, 376(2)(n), 376, 292, 120-B,506 IPC and Section 67 of the IT Act, and made observations regardingthe 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 victimis of “loose character” or is “habituated to sexual intercourse.”

12. Counsel for the Intervenors submitted that under sections437(2) and 438, the power to impose conditions have been expressed in

11 Crl. 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 HighCourt

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

Avery wide terms by using the phrase “any condition.” Recently, HighCourts while granting bail under these sections have started imposingirrelevant conditions. The Intervenors have annexed around twenty-threeorders in which such conditions for bail were imposed. They argue thatthe conditions that can be imposed under the law are clearly laid downby the Supreme Court in the case of Munish Bhasin v. State[16] andBreiterated in Parvez Noordin Lokhandwalla v. State of Maharashtra.[17]Accordingly, it is clear that imposing conditions like rendering communityservice in COVID hospitals or in any other institution, plantation of trees,contributing to any particular charity relief fund, etc. is impermissible inlaw. The Intervenors further submit that the accused, during pendencyCof the trial are presumed innocent and their guilt is as yet to be adjudicatedby the Court. Imposition of conditions like compulsive community service,etc. is violative of the right to equality and personal liberty, includingprocedure established by law in the Indian Constitution.13. The Intervenors also submit that the Court while deciding aDbail application, cannot assume the role of social reformer or fundraiser for charities and impose conditions which have no nexus with theoffense or relevance with the object of the bail provisions.

14. It was submitted that in IA No. 102226/2020, the appellantshave brought to the notice of this Court, several other instances in whichsimilar directions have been made by High Courts and Trial Courts acrossEthe country. Such wide prevalence necessitates the urgent interventionof this Court to firstly, declare that such remarks are unacceptable andhave the potential to cause grave harm to the prosecutrix and the societyat large, secondly, reiterate that judicial orders have to conform to certainjudicial standards, and thirdly, take necessary steps to ensure that thisFdoes not happen in the future.

15. It was further submitted that this Court should intervene andissue directions or guidelines on bail and anticipatory bail to ensure thatcourts impose only those conditions as are permissible in law. Further,this Court was urged to issue directions on gender sensitization of theGbar and the bench, particularly with regard to judicial empathy for theprosecutrix.

16. The learned Attorney General, who had been issued notice inthis matter, made his submissions in support of the appeal; he also filed

16 (2009) 4 SCC 45H17 (2020) 10 SCC 77

detailed note suggesting the steps that should be taken to sensitize allstakeholders, especially courts, while dealing with offences againstwomen. Highlighting the observations made in Kunal Kumar(supra),Sumit Mehta (supra), State of Punjab v. Gurmit Singh[18 ]and Sakshiv. State[19], the learned Attorney General submitted that while relyingupon the observations made in the above-mentioned cases, the courtmay highlight that in cases of crimes against women, the followingadditional considerations may be kept in mind:

i.Bail conditions should not mandate or even permit contactbetween the accused and the victim.

ii.Bail conditions must seek to protect the complainant fromany harassment by the accused.

iii.Where considered necessary, the complainant/prosecutrixmay be heard on whether there is any peculiar circumstancewhich may require additional conditions for her protection.

iv.Wherever bail is granted, the complainant may immediatelybe informed that the accused has been granted bail.

v.Bail conditions must be free from stereotypical or patriarchalnotions on women and their place in society, and must strictlybe in accordance with the requirements of the CrPC.

vi.The Courts while adjudicating case, should not suggest orentertain any notions (or encourage any step) towardscompromises between the prosecutrix and the accused toget married, as it is beyond their powers and jurisdiction.

17. On gender equality and gender sensitization, the AttorneyGeneral argued that to achieve the goal of gender justice, it is imperativethat judicial officers, judges, and members of the bar are made aware ofgender prejudices that hinder justice. Accordingly, he submitted that theforemost aspect to facilitate gender sensitive approach, is to train judgesto exercise their discretion and avoid the use of gender-based stereotypeswhile deciding cases pertaining to sexual offences. Secondly, judgesshould have sensitivity to the concerns of the survivor of sexual offences.

18. Reliance was placed on the Bangkok General Guidance forJudges on Applying Gender Perspective in South East Asia, by the18 (1996) 2 SCC 38419 (2004) 5 SCC 518

AInternational Commission of Jurists. It was pointed out that the followingstereotypes 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 thedecisions related to family;

iv.Women should be submissive and obedient;

v.Good women are sexually chaste;

vi.Every woman wants to be mother;

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

Dviii.Being alone at night or wearing certain clothes make womenresponsible for being attacked;

ix.Women are emotional and often overreact or dramatizehence it is necessary to corroborate their testimony;

x.Testimonial evidence provided by women who are sexuallyEactive may be suspected when assessing “consent” in sexualoffence cases; and

xi.Lack of evidence of physical harm in sexual offense casemeans consent was given.

19. The Attorney General submitted that training for gendersensitization for judges at all levels of the judiciary should mandatorily beconducted at regular intervals by the National Judicial Academy andState Judicial Academies. He emphasized that any directions towardsgender sensitization should include judges of all levels of the judiciary.GFurther, the counsel urged that courses on gender sensitization should beincluded in the curriculum of law schools, and the All-India Bar Examshould include questions on gender sensitization as well. In addition tothis, he recommended that detailed curriculum may be prepared withthe help of subject matter experts by each High Court, to be part of thesyllabus for the Judicial Services Exams and training for inducted judges.H

Nature of the beast[20]: the problem

20. Women often experience obstacles in gaining access tomechanisms of redress, including legal aid, counselling services andshelters. They are re-victimized and exposed to further risk of violencethrough the denial of redress in the context of informal trials ornegotiations between families and community leaders. The payment offinancial compensation by the perpetrator or his family for acts of violenceagainst women, in lieu of legal remedies, was recurrent concern vis-à-vis the formal and informal justice systems. Violence against women inIndia is systematic and occurs in the public and private spheres. It isunderpinned by the persistence of patriarchal social norms and inter-and intra-gender hierarchies. Women are discriminated against andsubordinated not only on the basis of sex, but on other grounds too, suchas caste, class, ability, sexual orientation, tradition and other realities.[21]

21. Gender violence is most often unseen and is shrouded in aculture of silence. The causes and factors of violence against womeninclude entrenched unequal power equations between men and womenthat foster violence and its acceptability, aggravated by cultural and socialnorms, economic dependence, poverty and alcohol consumption, etc. InIndia, the culprits are often known to the woman; the social and economic“costs” of reporting such crimes are high. General economic dependenceon family and fear of social ostracization act as significant disincentivesfor women to report any kind of sexual violence, abuse or abhorrentbehaviour. Therefore, the actual incidence of violence against women inIndia is probably much higher than the data suggests, and women maycontinue to face hostility and have to remain in environments wherethey are subject to violence. This silence needs to be broken. In doingso, men, perhaps more than women have duty and role to play inaverting and combating violence against women.

22. Unlike many other victims of interpersonal crimes such astheft, robbery or muggings, survivors of sexual assault are vulnerable tobeing blamed for their attack, and thus victim-blaming (overtly or in moresubtle forms) in sexual assault cases has been the focus of several

20 phrase that means the traits inherent to thing or situation, especially negative ordifficult one (See https://idioms.thefreedictionary.com/the+nature+of+the+beast )

21 Report of the Special Rapporteur on Violence against Women, its Causes andConsequences, 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)

Awritings. Myths and stereotypes “underlie and fuel sexual violenceagainst women and inform negative societal reactions”.[22] JoanneConaghan points out pertinently that “removing the doctrinal debrisof legally instituted gendered hierarchical order does notnecessarily get rid of deeply ingrained social and cultural attitudeswhich law has long endorsed and which continue to infuse theBcriminal justice process, albeit in more covert, less accessibleforms.”[23]

23. Sexual violence is varied in degree. At the highest (or, rathermost aggravated) level, is rape with or without attendant violence.However, there are substantial number of incidents which fall withinCthe rubric of sexual violence, that amount to offences under variouspenal enactments. These outlaw behaviours such as stalking, eve-teasing,shades of verbal and physical assault, and harassment. Social attitudestypically characterize this latter category of crimes as “minor” offences.Such “minor” crimes are, regrettably not only trivialised or normalized,Drather they are even romanticized and therefore, invigorated in popularlore such as cinema. These attitudes – which indulgently view the crimethrough prisms such as “boys will be boys” and condone them,nevertheless have lasting and pernicious effect on the survivors.

24. The United Nations Organisation has defined “violence againstEwomen” as “any act of gender based violence that results in, or islikely to result in, physical, sexual or psychological harm orsuffering to women, including threats of such acts, coercion orarbitrary deprivation of liberty, whether occurring in public orprivate life.”[24 ] The effect of offensive behaviour against women, which

22 Shannon Sampert“Let Me Tell You Story: English-Canadian Newspapers and SexualFAssault Myths” (2010) 22:2 Canadian Journal of Women and the Law 301 at 304; alsoJanice Du Mont, and Deborah Parmis; “Judging Women: The Pernicious Effects ofRape Mythology” (1999) 19:1-2 Canadian Woman Studies 102 at 102

23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 11324 The Declaration on the Elimination of Violence Against Women (also ‘DEVAW).Articles 1 and 2 read as follows:G“Article One:

For the purposes of this Declaration, the term “violence against women” meansany act of gender-based violence that results in, or is likely to result in, physical, sexualor 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,Hthe following:

laws criminalize- physical, verbal, or other acts which threaten or givethem acute discomfort, undermining their dignity, self-worth and respect,is to silence or subdue the survivor.

25. In The Standard of Social Justice as Research Process[25]two scholars of psychology made strong indictment of the (contextually,Canadian) criminal justice process:

“The more general indictment of the current criminal justiceprocess is that the law and legal doctrines concerningsexual assault have acted as the principle [sic] systemicmechanisms for invalidating the experiences of women andchildren. Given this state of affairs, the traditional view ofthe legal system as neutral, objective and gender-blind is notdefensible. Since the system is ineffective in protecting therights of women and children, it is necessary to re-examinethe existing doctrines which reflect the cultural and sociallimitations that have preserved dominant male interests at theexpense of women and children.”

Previous rulings

26. In Kunal Kumar Tiwari v. State of Bihar (supra), this courtwhile 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 ofjustice. We are aware that palpably such wordings are capableof accepting broader meaning. But such conditions cannotbe arbitrary, fanciful or extend beyond the ends of theprovision. The phrase ‘interest of justice’ as used under the

(a) Physical, sexual and psychological violence occurring in the family, includingbattering, 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 generalcommunity, 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 theState, wherever it occurs.”

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

ASub-clause (c) of Section 437(3) means “good administrationof justice” or “advancing the trial process” and inclusion ofbroader meaning should be shunned because of purposiveinterpretation.”

27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court,Bwith respect to the conditions that can be imposed validly under section438(2) of the CrPC, observed that:

“11. While exercising power under Section 438 of the Code,the Court is duty bound to strike balance between theindividual’s right to personal freedom and the right ofCinvestigation of the police. For the same, while granting reliefUnder Section 438(1), appropriate conditions can be imposedUnder Section 438(2) so as to ensure an uninterruptedinvestigation. The object of putting such conditions shouldbe to avoid the possibility of the person hampering theinvestigation. Thus, any condition, which has no reference toDthe fairness or propriety of the investigation or trial, cannotbe countenanced as permissible under the law. So, thediscretion of the Court while imposing conditions must beexercised with utmost restraint.”

28. It was urged that the observations made in Kunal Kumar andESumit Mehta ought to be followed while imposing bail conditions. Theappellants relying upon the observations made in para 18 of State ofM.P v. Madanlal,[26] submit that in cases of sexual offences, the conceptof compromise, especially in the form of marriage between the accusedand the prosecutrix shall not be thought of, as any such attempt wouldFbe offensive to the woman’s dignity.

“18. …We would like to clearly state that in case of rape orattempt of rape, the conception of compromise under nocircumstances can really be thought of. These are crimesagainst the body of woman which is her own temple. TheseGare offences which suffocate the breath of life and sully thereputation. And reputation, needless to emphasise, is therichest jewel one can conceive of in life. No one would allowit to be extinguished. When human frame is defiled, the“purest treasure”, is lost. Dignity of woman is part of her

non-perishable and immortal self and no one should ever thinkof painting it in clay. There cannot be compromise orsettlement as it would be against her honour which mattersthe most. It is sacrosanct. Sometimes solace is given that theperpetrator of the crime has acceded to enter into wedlockwith her which is nothing but putting pressure in an adroitmanner; and we say with emphasis that the Courts are toremain absolutely away from this subterfuge to adopt softapproach to the case, for any kind of liberal approach has tobe put in the compartment of spectacular error. Or to put itdifferently, it would be in the realm of sanctuary of error.”

29. The decision in Ramphal v. State of Haryana[27 ]by order dated27.11.2019, took note of the compromise between the survivor andaccused persons but found that such compromise is of no relevancewhen deciding on rape and cases of sexual assault.

“It is brought to our notice that during the pendency of theappeals, both the appellants have paid Rs. 1.5 lakhs each infavor of the prosecutrix and she has accepted the samewillingly for getting the matter compromised. However, it isimperative to emphasize that we do not accept such compromisein matters relating to the offence of rape and similar cases ofsexual assault. Hence, the aforesaid compromise is of norelevance in deciding this matter. On merits, we do not findany ground to interfere in as much as the evidence of theprosecutrix is coupled with the medical evidence which clearlyproves that the offence of rape has been committed. Therefore,the Trial Court and the High Court have rightly convicted theaccused/appellants.”

30. Empirically, the statistics regarding certain kinds of crimesagainst women have not shown any significant decline. In states andunion territories, 32033 rape cases (under Section 376 IPC) wereregistered in 2019; 4038 cases of attempt to rape were registered thesame year (under Section 376 read with Section 511, IPC). As many as88,387 cases under Section 354 IPC were registered the same year,whereas 6939 cases were registered under Section 509 (outraging themodesty of woman) in 2019. In all, total of 4, 05,861 crimes againstwomen were reported in 2019 (as against 359849 in 2017 and 378236 in

27 Crl. A. No. 438/2011

A2018). The statistic for relatively new species of offensive activities,cybercrimes that are women-centric, such as Transmitting of SexuallyExplicit Material (Sec. 67A/67B, Information Technology Act),Blackmailing Defamation/Morphing/creating Fake Profile etc) registeredin 2019, were 1645. POCSO offences, where girl children were victims,reported in 2019 were 46,005.[28]B

The role of the courts and law enforcement agencies as neutralauthorities, under duty to ensure fairness

31. The role of all courts is to make sure that the survivor can relyon their impartiality and neutrality, at every stage in criminal proceeding,Cwhere she is the survivor and an aggrieved party. Even an indirectundermining of this responsibility cast upon the court, by permittingdiscursive formations on behalf of the accused, that seek to diminish hisagency, or underplay his role as an active participant (or perpetrator) ofthe crime, could in many cases, shake the confidence of the rape survivor(or accuser of the crime) in the impartiality of the court. The currentDattitude regarding crimes against women typically is that “grave” offenceslike 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 areformidable: they include misogynistic society with entrenched culturalEvalues and beliefs, bias (often sub-conscious) about the stereotypicalrole of women, social and political structures that are heavily male-centric,most often legal enforcement structures that either cannot cope with, orare unwilling to take strict and timely measures. Therefore, reinforcementof this stereotype, in court utterances or orders, through considerationswhich are extraneous to the case, would impact fairness.F

32. Academic writings highlight that judgment at all levels has anumber of distinct audiences, each of which engages with it in differentway. The parties to the case and their counsel will be interested in howthe judge resolves their specific dispute - what the law gives to or requiresof them. At the same time, in legal system where judgments of courtsGset precedents, and in particular within common law system, judgmentshave significance beyond their authoritative resolution of specificdispute—particularly in the Supreme Court. Thus, the judge is not onlycommunicating to the parties their rights and liabilities in the context ofthe specific dispute being litigated; the judge is also addressing theH28 https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf

broader legal community—other lawyers, judges, legal academics,law students—and indeed the public at large.[29]

33. Using rakhi tying as condition for bail, transforms molesterinto brother, by judicial mandate. This is wholly unacceptable, andhas the effect of diluting and eroding the offence of sexual harassment.The act perpetrated on the survivor constitutes an offence in law, and isnot minor transgression that can be remedied by way of an apology,rendering community service, tying rakhi or presenting gift to thesurvivor, or even promising to marry her, as the case may be. The lawcriminalizes outraging the modesty of woman. Granting bail, subject tosuch conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in criminaloffence and perpetuating gender stereotypes.

34. The Inter-American Commission on Human Rights has notedthat judicial stereotyping “is common and pernicious barrier tojustice, particularly for women victims and survivors of violence.Such stereotyping causes judges to reach view about cases basedon preconceived beliefs, rather than relevant facts and actualenquiry.”[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 ascribingto an individual specific attributes, characteristics or roles by reasononly of her or his membership in particular social group (e.g. women).It is used, also, to refer to the practice of judges perpetuating harmfulstereotypes through their failure to challenge them, for example by lowercourts or parties to legal proceedings.[31] Stereotyping excludes anyindividualized consideration of, or investigation into, person’s actualcircumstances and their needs or abilities.[32]

29 Erica Rackley, The Art and Craft of Writing Judgements in Hunter, Rosemary andMcGlynn, 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 Victimsof Sexual Violence: Education and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; SimoneCusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the HighCommissioner for Human Rights (2014).

31 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office ofthe High Commissioner for Human Rights (2014), p. 2.

32 Supra, p. 17.

A36. There have been notable rulings by the CEDAW[33] Committeein this regard. In V.K. v. Bulgaria[34], the Committee observed that:

‘stereotyping affects women’s right to fair trial and that thejudiciary must be careful not to create inflexible standardsbased on preconceived notions of what constitutes domesticBor gender-based violence’.

37. In Karen Tayag Vertido v. The Philippines[35], the CEDAWCommittee stressed that court should not create “inflexible standards”of what women should be or have done, when confronted with situationof rape.

C38. Judges can play significant role in ridding the justice systemof harmful stereotypes. They have an important responsibility to basetheir decisions on law and facts in evidence, and not engage in genderstereotyping. This requires judges to identify gender stereotyping, andidentify how the application, enforcement or perpetuation of thesestereotypes discriminates against women or denies them equal accessDto justice. Stereotyping might compromise the impartiality of judge’sdecision and affect his or her views about witness credibility or theculpability of the accused person.[36]As judge of the Canadian SupremeCourt remarked:

“Myths and stereotypes are form of bias because they impairEthe individual judge’s ability to assess the facts in particularcase in an open-minded fashion. In fact, judging based onmyths and stereotypes is entirely incompatible with keepingan open mind, because myths and stereotypes are based onirrational predisposition and generalization, rather thanFfact.”[37]

33 The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW), was adopted in 1979 by the UN General Assembly; it is sometimes describedas an international bill of rights for women.

The CEDAW Committee is set up under Article 17 of CEDAW.

34 V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008G(2011) (CEDAW)35 Karen 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 ofthe High Commissioner for Human Rights (2014), p. 22.

37 The Honourable Madame Justice Claire L ’Heureux-Dubé, ‘Beyond the Myths:Equality, Impartiality, and Justice’ (2001) 10(1) Journal of Social Distress and theHHomeless 87, 88.

39. The stereotype of the ideal sexual assault victim disqualifiesseveral accounts of lived experiences of sexual assault. Rape myths[38]undermine the credibility of those women who are seen to deviate toofar from stereotyped notions of chastity, resistance to rape, having visiblephysical injuries, behaving certain way, reporting the offenceimmediately, etc. In the words of the Supreme Court of Canada, in R v.Seaboyer,[39]

“The woman who comes to the attention of the authoritieshas her victimization measured against the current rapemythologies, i.e., who she should be in order to be recognizedas having been, in the eyes of the law, raped; who her attackermust be in order to be recognized, in the eyes of the law, as apotential rapist; and how injured she must be in order to bebelieved.”

40. The Bangalore Principles of Judicial Conduct, 2002, were froma meeting of Chief Justices of Asian and African countries, and endorsedby the UN Commission on Human Rights, the ECOSOC and theCommission on Crime Prevention and Criminal Justice. The BangalorePrinciples provide that:

“2.4 judge shall not knowingly, while proceeding is before,or could come before, the judge, make any comment that mightreasonably be expected to affect the outcome of suchproceeding or impair the manifest fairness of the process.Nor shall the judge make any comment in public or otherwisethat might affect the fair trial of any person or issue.

********

5.1 judge shall be aware of, and understand, diversity insociety and differences arising from various sources, includingbut not limited to race, colour, sex, religion, national origin,caste, disability, age, marital status, sexual orientation, social

38 Explained in R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case) as opinionsimproperly forming the background for considering evidentiary issues in sexual assaulttrials. 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 haveconsented.

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

[2021] 4 S.C.R.

Aand economic status and other like causes (“irrelevantgrounds”).

5.2 judge shall not, in the performance of judicial duties,by words or conduct, manifest bias or prejudice towards anyperson or group on irrelevant grounds.”

B41. This court held, in State of Punjab v. Gurmit Singh & Ors.[40]

that:

“The trial court not only erroneously disbelieved theprosecutrix, but quite uncharitably and unjustifiably evencharacterised her as girl “of loose morals” or “such typeCof girl”. … We must express our strong disapproval of theapproach of the trial court and its casting stigma on thecharacter of the prosecutrix. The observations lack sobrietyexpected of judge. … The courts are expected to use self-restraint while recording such findings which have largerDrepercussions so far as the future of the victim of the sex crimeis concerned and even wider implications on the society as awhole – where the victim of crime is discouraged – the criminalencouraged and in turn crime gets rewarded!’

E“Language is ‘a medium of social action’ not ‘merely vehicleof communication’ and the written judicial opinion is theprimary, if not the sole, medium in which judges within ourjudicial system execute language.”[41]

F…the text of judicial decisions and opinions constitutes thelaw by which our common law system abides and the basis onwhich judges, lawyers, and citizens make reasoned legaljudgments about future action.”[42]

42. This Court therefore holds that the use of reasoning/languageGwhich diminishes the offence and tends to trivialize the survivor, is

40 State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384.41 Rachael K. Hinkle et al., Positive Theory and Empirical Analysis of Strategic WordChoice in District Court Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012).H42 Ibid, at p. 409.

especially to be avoided under all circumstances. Thus, the followingconduct, actions or situations are hereby deemed irrelevant, e.g. - to saythat the survivor had in the past consented to such or similar acts or thatshe behaved promiscuously, or by her acts or clothing, provoked thealleged action of the accused, that she behaved in manner unbecomingof chaste or “Indian” women, or that she had called upon the situationby her behavior, etc. These instances are only illustrations of an attitudewhich should never enter judicial verdicts or orders or be consideredrelevant while making judicial decision; they cannot be reasons forgranting bail or other such relief. Similarly, imposing conditions thatimplicitly tend to condone or diminish the harm caused by the accusedand have the effect of potentially exposing the survivor to secondarytrauma, such as mandating mediation processes in non-compoundableoffences, mandating as part of bail conditions, community service (in amanner of speaking with the so-called reformative approach towardsthe perpetrator of sexual offence) or requiring tendering of apology onceor repeatedly, or in any manner getting or being in touch with the survivor,is especially forbidden. The law does not permit or countenance suchconduct, where the survivor can potentially be traumatized many timesover or be led into some kind of non-voluntary acceptance, or becompelled by the circumstances to accept and condone behavior whatis serious offence.

43. The instances spelt out in the present judgment are onlyillustrations; the idea is that the greatest extent of sensitivity is to bedisplayed in the judicial approach, language and reasoning adopted bythe judge. Even solitary instance of such order or utterance in court,reflects adversely on the entire judicial system of the country, underminingthe guarantee to fair justice to all, and especially to victims of sexualviolence (of any kind from the most aggravated to the so-called minoroffences).

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

(a)Bail conditions should not mandate, require or permit contactbetween the accused and the victim. Such conditions shouldseek to protect the complainant from any further harassmentby the accused;

(b)Where circumstances exist for the court to believe that theremight be potential threat of harassment of the victim, orH

upon apprehension expressed, after calling for reports fromthe police, the nature of protection shall be separatelyconsidered and appropriate order made, in addition to adirection to the accused not to make any contact with thevictim;

(c)In all cases where bail is granted, the complainant shouldimmediately be informed that the accused has been grantedbail and copy of the bail order made over to him/her withintwo days;

(d)Bail conditions and orders should avoid reflectingstereotypical or patriarchal notions about women and theirCplace in society, and must strictly be in accordance with therequirements of the Cr. PC. In other words, discussion aboutthe dress, behavior, or past “conduct” or “morals” of theprosecutrix, should not enter the verdict granting bail;

(e)The courts while adjudicating cases involving gender relatedDcrimes, should not suggest or entertain any notions (orencourage any steps) towards compromises between theprosecutrix and the accused to get married, suggest ormandate mediation between the accused and the survivor,or any form of compromise as it is beyond their powersand jurisdiction;E

(f)Sensitivity should be displayed at all times by judges, whoshould ensure that there is no traumatization of theprosecutrix, during the proceedings, or anything said duringthe arguments, and

(g)Judges especially should not use any words, spoken orFwritten, that would undermine or shake the confidence ofthe survivor in the fairness or impartiality of the court.

45. Further, courts should desist from expressing any stereotypeopinion, in words spoken during proceedings, or in the course of judicialorder, to the effect that (i) women are physically weak and needGprotection; (ii) women are incapable of or cannot take decisions on theirown; (iii) men are the “head” of the household and should take all thedecisions relating to family; (iv) women should be submissive and obedientaccording to our culture; (v) “good” women are sexually chaste; (vi)motherhood is the duty and role of every woman, and assumptions to theHeffect that she wants to be mother; (vii) women should be the ones in

charge of their children, their upbringing and care; (viii) being alone atnight or wearing certain clothes make women responsible for beingattacked; (ix) woman consuming alcohol, smoking, etc. may justifyunwelcome advances by men or “has asked for it”; (x) women areemotional and often overreact or dramatize events, hence it is necessaryto corroborate their testimony; (xi) testimonial evidence provided bywomen who are sexually active may be suspected when assessing“consent” in sexual offence cases; and (xii) lack of evidence of physicalharm in sexual offence case leads to an inference of consent by thewoman.

46. As far as the training and sensitization of judges and lawyers,including public prosecutors goes, this court hereby mandates that amodule on gender sensitization be included, as part of the foundationaltraining of every judge. This module must aim at imparting techniquesfor judges to be more sensitive in hearing and deciding cases of sexualassault, and eliminating entrenched social bias, especially misogyny. Themodule should also emphasize the prominent role that judges are expectedto play in society, as role models and thought leaders, in promoting equalityand ensuring fairness, safety and security to all women who allege theperpetration of sexual offences against them. Equally, the use of languageand appropriate words and phrases should be emphasized as part of thistraining.47. The National Judicial Academy is hereby requested to devise,speedily, the necessary inputs which have to be made part of the trainingof young judges, as well as form part of judges’ continuing educationwith respect to gender sensitization, with adequate awareness programsregarding stereotyping and unconscious biases that can creep into judicialreasoning. The syllabi and content of such courses shall be framed afternecessary consultation with sociologists and teachers in psychology,gender studies or other relevant fields, preferably within three months.The course should emphasize upon the relevant factors to be considered,and importantly, what should be avoided during court hearings and neverenter judicial reasoning. Public Prosecutors and Standing Counsel tooshould undergo mandatory training in this regard. The training program,its content and duration shall be developed by the National JudicialAcademy, in consultation with State academies. The course shouldcontain topics such as appropriate court-examination and conduct andwhat is to be avoided.

A48. Likewise, the Bar Council of India (BCI) should also consultsubject experts and circulate paper for discussion with law facultiesand colleges/universities in regard to courses that should be taught at theundergraduate level, in the LL.B program. The BCI shall also requiretopics on sexual offences and gender sensitization to be mandatorilyincluded in the syllabus for the All India Bar Examination.B

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

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

51. In the light of the above, the bail conditions in the impugnedjudgment, extracted at para 3 above, are set aside, and expunged fromthe record.D

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

“[T]he wisdom required of judge is to recognize, consciouslyallow for, and perhaps to question, all the baggage of pastattitudes and sympathies that fellow citizens are free to carry,Euntested, to the grave.

True impartiality does not require that the judge have nosympathies or opinions; it requires that the judge neverthelessbe free to entertain and act upon different points of view withan open mind.”

F53. Judges play – at all levels – vital role as teachers and thoughtleaders. It is their role to be impartial in words and action, at all times. Ifthey falter, especially in gender related crimes, they imperil fairness andinflict 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 noorder on costs.G

Devika Gujral

Appeal disposed of.

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