In a major judgment on gender-related crimes, the Supreme Court on Thursday stressed that courts should not suggest marriage or compromise between the accused and the victim in rape cases.
A bench comprising Justices A.M. Khanwilkar and Ravindra Bhat said: “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.”
The top court emphasised that court should avoid discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, and such things should not enter the verdict granting bail.
Bail conditions should also not mandate, require or permit contact between the accused and the victim, it said. “Such conditions should seek to protect the complainant from any further harassment by the accused.. In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail,” it said.
The top court said bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society.
“Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatisation of the prosecutrix, during the proceedings, or anything said during the arguments,” it said.
The top court said the courts should desist from expressing any stereotypical opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatise events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
The observations were by the top court while setting aside July 30, 2020 bail condition imposed by the Madhya Pradesh High Court, which granted bail to a sexual offender on the condition that he ties a rakhi on the woman whose modesty he allegedly outraged.