SC quashes Rakhi bail condition in MP HC order; issues directions for sexual assault cases

The Supreme Court on Thursday set aside the bail conditions imposed by the Madhya Pradesh High Court in a case involving a sexual offence against a woman. A division bench of the apex court comprising Justices AM Khanwilkar and S Ravindra Bhat was hearing a plea filed by public-spirited individuals concerned about the adverse precedent set in this case. As per the FIR registered in Ujjain, the accused- a neighbour of the complainant entered her house at 2.30 am on April 20, 2020, and allegedly attempted to sexually harass her. 

Granting anticipatory bail to the accused, the HC asked him to request the complainant to tie Rakhi to him with the promise to "protect her" to the best of his ability for all times to come. Moreover, the court directed him to pay Rs.11,000 to the victim as a customary ritual and Rs.5000 to her son for the purchase of clothes and sweets. Stressing that judges have to be impartial in words and actions at all times, the SC observed that they inflict great cruelty if they falter in gender-related crimes. Apart from issuing a range of directions to courts, the bench called for training and gender sensitization of judges and lawyers. 

Disapproving of the bail conditions in the HC order, the SC in paragraph 33 noted, "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."

Here are the directions issued by the SC:

• Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused
• Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim 
• 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
• Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
• The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction
• 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
• Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.