2021 Supreme(SC) 151

SUPREME COURT OF INDIA
A. M. KHANWILKAR, S. RAVINDRA BHAT, JJ.
APARNA BHAT & ORS. - APPELLANT
VERSUS
STATE OF MADHYA PRADESH & ANR. - RESPONDENT
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)
Decided On : 18-03-2021

Important Points
(1) Bail – Crime against women – Courts should desist from expressing any stereotype opinion. A module on gender sensitization be included, as part of foundational training of every Judge.
(2) Pre-arrest bail – Crime against women – Law does not permit or countenance such conduct where survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by circumstances to accept and condone behaviour what is a serious offence.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Sections 452, 354A, 323 and 506 – Pre-arrest bail – Grant of – Crime against women – Role of all courts is to make sure that survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is survivor and an aggrieved party – Even an indirect undermining of this responsibility cast upon court, by permitting discursive formations on behalf of accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of crime, could in many cases, shake confidence of rape survivor (or accuser of crime) in impartiality of court – Current attitude regarding crimes against women typically is that “grave” offences like rape are not tolerable and offenders must be punished – This only takes into consideration rape and other serious forms of gender-based physical violence – Challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about stereotypical role of women, social and political structures that are heavily malecentric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures – Reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness. (Para 31)

(B) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Sections 452, 354A, 323 and 506 – Pre-arrest bail – Grant of – Imposition of conditions – Crime against women – Using Rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate – This is wholly unacceptable and has effect of diluting and eroding offence of sexual harassment – Act perpetrated on 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 – Law criminalizes outraging modesty of a woman – Granting bail, subject to such conditions, renders court susceptible to charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes – Judges can play a significant role in ridding 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 impartiality of a Judge’s decision and affect his or her views about witness credibility or culpability of accused person – Stereotype of ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault – Rape myths3 undermine 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

offence immediately – Law does not permit or countenance such conduct where survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by circumstances to accept and condone behaviour what is a serious offence. (Paras 33, 38, 39 and 42)

(C) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Sections 452, 354A, 323 and 506 – Pre-arrest bail – Grant of – Imposition of conditions – Crime against women – Bail conditions should not mandate, require or permit contact between accused and victim – Such conditions should seek to protect complainant from any further harassment by accused – Where circumstances exist for court to believe that there might be a potential threat of harassment of victim, or upon apprehension expressed, after calling for reports from police, nature of protection shall be separately considered and appropriate order made, in addition to a direction to accused not to make any contact with victim – In all cases where bail is granted, complainant should immediately be informed that accused has been granted bail and copy of bail order made over to him/her within two days – Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly be in accordance with requirements of Cr.P.C. – Discussion about dress, behaviour, or past “conduct” or “morals” of prosecutrix, should not enter verdict granting bail – Courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between prosecutrix and the accused to get married, suggest or mandate mediation between accused and survivor, or any form of compromise as it is beyond their powers and jurisdiction – Sensitivity should be displayed at all times by Judges, who should ensure that there is no traumatization of prosecutrix, during proceedings, or anything said during arguments – Judges especially should not use any words, spoken or written, that would undermine or shake confidence of survivor in fairness or impartiality of court. (Para 44)

(D) Indian Penal Code, 1860 – Sections 452, 354A, 323 and 506 – Criminal Procedure Code, 1973 – Sections 437 and 438 – Bail – Grant of – Imposition of conditions – Crime against women – Courts should desist from expressing any stereotype opinion – A module on gender sensitization be included, as part of 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 – Module should also emphasize 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 perpetration of sexual offences against them – Equally, use of language and appropriate words and phrases should be emphasized as part of this training – National Judicial Academy requested to devise, speedily, necessary inputs which have to be made part of 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 – 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 – Course should emphasize upon 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 – Training program, its content and duration shall be developed by National Judicial Academy, in consultation with State academies – Course should contain topics such as appropriate court-examination and conduct and what is to be avoided – Likewise, 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 undergraduate level, in LL.B program – BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in syllabus for All India Bar Examination. (Paras 45 to 48)

Facts of the case:

Appellants are public-spirited individuals, concerned about 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 Madhya Pradesh High Court1 that imposed these bail conditions. With the consent of counsel for the parties, the appeal was heard finally. The appellants also filed an application, 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.

Findings of Court:

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.

Result – Appeal disposed of with observations.