By Dr Swati Jindal Garg
“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”
—Henrik Ibsen
The famous Norwegian playwright’s quote aptly portrays the current mindset of the Indian judiciary given the kind of judgments that have been passed lately. The latest is an order passed by the sessions court in Kozhikode granting bail to the accused on the basis that the offence of sexual harassment is not prima facie proven if the woman was wearing “sexually provocative dresses”.
As if this is not shocking enough, the same court in another order granted bail to the same accused in a sexual harassment case, virtually exonerating him from the offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act by holding that “it is highly unbelievable that he will touch the body of the victim fully knowing that she is member of Scheduled Caste”.
Then, there is also the issue of courts imposing ridiculous conditions for the bail of the accused, including one where the accused was directed to visit the house of the victim with a rakhi and a box of sweets and request the victim to tie the rakhi to him with the “promise to protect her to the best of his ability for all time to come”.
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These incidents are a proof of the fact that India still has a long way to go before it can be recognised as a gender sensitive State despite the fact that there has been a catena of judgments where the apex court of the country has held that the conduct of the victim is irrelevant. It does not matter whether the victim had in the past consented or whether she behaved promiscuously, or whether she “behaved in a manner unbecoming of chaste Indian women”, the courts in India continue to use language and reasons in their orders that diminish the offence and trivialise the victim’s experience.
These adverse precedents set by the imposition of certain bail conditions in cases involving sexual offenses against women take their toll on the victim and also act as a source of secondary trauma on them and effect their dignity. The courts have been time and again asked to refrain from imposing “irrelevant, freaky or illegal bail conditions” but to no avail. Every few months, we come across that one order which not only shocks us to the core, but also pushes the Indian judiciary back by a decade. These orders also tend to make the victims think long and hard before filing a complaint as they always fear whether it is they who will be put on trial or the culprit.
It is a sad reality that even today, after more than 70 years of independence, many courts are still proceeding with such attitudes, totally oblivious to the problems posed by the thoughtless judgments passed by them.
A case in point is the one where while granting bail to the accused on charges of rape, the judge had imposed the condition that the accused “shall register himself as a Covid-19 warrior” and he was assigned work at the Covid-19 disaster management at the discretion of the district magistrate!
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In another shocking case, bail was granted to the accused, again on charges of rape on the grounds of the conduct of the victim. The judge in the said case observed that—
“c) nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished…”
There are also many shocking examples where the judges have attempted to affect a compromise between parties where rape of a minor has been alleged and the accused offers to marry the victim. The social activists who have been working in this field for some time insist that no such observation/condition should be made by a judge which initiates or encourages a compromise that disparages and downgrades an otherwise heinous crime thus indicating that such offences are remediable by way of a compromise/by marriage.
Even though the Indian law under Sections 437 and 438 of the Code of Criminal Procedure grants the power to impose conditions while granting bail to the accused, the apex court of the country has already laid down these conditions in judgments passed by it and hence it is quite clear that imposing conditions like rendering community service in Covid hospitals or in any other institution, plantation of trees, contributing to any particular charity relief fund, etc is impermissible in law and is further violative of the right to equality and personal liberty as the accused is still presumed to be innocent during pendency of the trial and their guilt is as yet to be adjudicated by the court.
Another class of thinkers also states that the court cannot assume the role of a social reformer or fundraiser for charities and impose conditions which have no nexus with the offence or relevance with the object of the bail provisions while deciding these bail applications. The reformers also contend that not only are such remarks unacceptable and have the potential to cause grave harm to the prosecutrix and the society at large, but they also hamper progress of the society and adversely affect the thought process of today’s youth. Care must therefore be taken to ensure that judicial orders conform to certain judicial standards and impose only those conditions that are permissible in law and necessary steps must be taken to ensure that this does not happen in the future.
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It can also not be disputed that the root of the problem lies in ignorance and lack of empathy hence it is imperative that gender sensitization of both the bar and the bench, particularly with regard to judicial empathy for the prosecutrix needs to be ensured. There is also a need to train the judges to exercise their discretion and avoid the use of gender-based stereotypes while deciding cases pertaining to sexual offences. Secondly, judges should have sensitivity to the concerns of the survivor of sexual offences without getting into the stereotypes that are generally encountered in the course of judicial decision-making like:
Women are physically weak; women cannot make decisions on their own; men are the head of the household and must make all the decisions related to family; women should be submissive and obedient; good women are sexually chaste; every woman wants to be a mother; women should be the ones in charge of their children; being alone at night or wearing certain clothes make women responsible for being attacked; women are emotional and often overreact or dramatize hence it is necessary to corroborate their testimony; testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and lack of evidence of physical harm in sexual offense case means consent was given. The list defining and demeaning women includes many more such gender-insensitive attitudes.
It also needs to be kept in mind that any condition that mandates, or even permits the contact of the victim with the accused needs to be avoided at all costs and it must be ensured that the complainant is protected from harassment of any kind from the accused. The complainant also needs to be informed immediately that the accused has been granted bail and if there is any peculiar circumstance which may require additional conditions for her protection then that must be taken into consideration.
Gender violence is most often unseen, shrouded in a culture of silence and hence goes unreported. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc.
In the Indian scenario, where the culprits are often known to the woman; the social and economic “costs” of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. It can safely be said that the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subjected to violence.
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It becomes the unequivocal duty of a judge, in this situation, to abstain from manifesting bias or prejudice towards any group or person on irrelevant grounds as judges play 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 their casual blindness to the despair of the survivors.
—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi