A bench of Justices A M Khanwilkar and S Ravindra Bhat stated, \u201cThe 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,\u201d<\/p>\n
Justice Bhat also said, “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” and that “even an indirect undermining of this responsibility cast upon the court\u2026 could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court”.<\/p>\n
The bench also stated, \u201cthe bail conditions and orders must strictly be in accordance with the requirements of the Cr. PC”\u00a0 “In other words, discussion about the dress, behaviour, or past \u2018conduct\u2019 or \u2018morals\u2019 of the prosecutrix, should not enter the verdict granting bail.” The conditions should also “not mandate, require or permit” contact between the accused and the victim, it said.<\/p>\n
The Supreme Court made this ruling while setting aside the bail condition imposed by the Madhya Pradesh High Court in a July 2020 order where the judge asked the accused to tie a rakhi on the molested victim in the presence of his wife, in order to obtain bail.<\/p>\n
The bench said, “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.”<\/p>\n
“Desist from expressing any stereotype opinion\u2026 to the effect that\u2026 women are physically weak and need protection\u2026 are incapable of or cannot take decisions on their own\u2026 men are the ‘head’ of the household and should take all the decisions relating to family\u2026 women should be submissive and obedient according to our culture\u2026 ‘good’ women are sexually chaste\u2026 a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or ‘has asked for it’\u2026,” it instructed courts.<\/p>\n
“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,” it said.<\/p>\n
The bench also said, “Gender violence is most often unseen and is shrouded in a culture of silence,”\u00a0 and went on to add, “this silence needs to be broken” and that “in doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women.”<\/p>\n
“Even a single instance of an order to the contrary 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,” the court said further and asks for updated new programmes for gender sensitization of judges and law students.<\/p>\n
Gender sensitization is defined as “the awareness informed propensity to behave in a manner which is sensitive to gender justice and gender equality issues.”<\/p>\n
The Indian judicial system is often alleged to be gender insensitive and a cry out for gender sensitization is constantly made.\u00a0 Adding more female judges to the judiciary department have been debated over the years, but nothing has budged much.\u00a0 At present, there are only two women Supreme Court judges and around eighty-two women judges across India.<\/p>\n
In December 2020, the Attorney General (AG) K K Venugopal, in his written submission to the Supreme Court (SC), highlighted the great need for gender sensitization among members of the judiciary.<\/p>\n
He also emphasized that the figure of female judges has been consistently low across the Higher Judiciary.\u00a0 The 2030 Agenda for Sustainable Development, and Sustainable Development Goals (SDG 5 and SDG 16 in particular), addressed the global responsibility of having gender equality and women\u2019s representation in public institutions such as the judiciary.<\/p>\n
Achieving equality for women judges is important not only because it is a right for women, but also because it is right for the achievement of a more just rule of law. Women judges strengthen the judiciary and help to gain the public’s trust.\u00a0 It was also said that women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective.<\/p>\n
By default, large sections of judges have displayed a stereotypical mindset when administering verdicts for rape victims. Researchers reveal that many judges have unveiled sexist notions of gender roles, used insensitive language and made remarks that have subverted the gravity of the incident.<\/p>\n
However, some judges have displayed great sensitivity and insight, dispelling the gender traditional mindsets on rape victims, though these verdicts are very rare.<\/p>\n
This is a very crucial ruling of the bench for as Supreme Court bench of Justices A.M. Khanwilkar and S. Ravindra Bhat say, \u201cJudges play \u2013 at all levels \u2013 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.\u201d<\/p>\n
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