On 18.03.2021, Supreme Court quashed a Madhya Pradesh High Court order asking a rape accused to get rakhi tied on his wrist from the Rape Survivor as a condition to get bail. While setting aside the Madhya Pradesh High Court order, the Apex Court issued guidelines in its order regarding the way of dealing with sexual criminal offences.
The Supreme Court condemned the practice by some courts of allowing the parties in the case to reach a compromise in rape and molestation cases by marriage between the accused and the victim or in other such ways. The Court observed that the courts should not allow parties to explore any mediation options to Adjudicate the cases.
While pronouncing such an order, the bench comprising of Justices S Ravindra Bhat and AM Khanwilkar held that "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 criminalizes outraging the modesty of a woman".
The Apex Court also said that judges must desist from taking a misogynistic and patriarchal approach by commenting on dress, behaviour, past conduct, or morals of a victim in gender violence cases. The Apex Court held that “the use of reasoning or language which diminishes the offence and tends to trivialize the survivor is especially to be avoided under all circumstances.”
The Guidelines issued by The Supreme Court for courts in dealing with sexual crime offences are as follows:
(1)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.
(2)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.
(3) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and a copy of the bail order made over to him/her within two days.
(4) 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, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail.
(5) 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.
(6) 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.
(7) 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.