HC’s order amounted to transforming the alleged molester into a brother by a judicial mandate and had the effect of eroding the offence of sexual harassment, the bench said. The court asked the National Judicial Academy to devise in 3 months a gender sensitisation module which would be a part of training for young judges and lawyers, with adequate awareness programmes on stereotyping and unconscious biases that can creep into judicial reasoning.
The Supreme Court has struck down a Madhya Pradesh high court order which asked an alleged molester to tie a ‘rakhi’ on the complainant’s wrist as part of obtaining bail. A bench comprising Justices AM Khanwilkar and S Ravindra Bhatt ordered that judges and lawyers mandatorily go through gender sensitisation modules to weed out such unconscious patriarchal and misogynist decisions and reasoning in courts. HC’s order amounted to transforming the alleged molester into a brother by a judicial mandate and had the effect of eroding the offence of sexual harassment, the bench said.
The court asked the National Judicial Academy to devise in 3 months a gender sensitisation module which would be a part of training for young judges and lawyers, with adequate awareness programmes on stereotyping and unconscious biases that can creep into judicial reasoning.
The course content shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, it said. The course should emphasise upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training on gender sensitisation. The training programme, its content and duration shall be developed by the National Judicial Academy, in consultation with state academies, it said.
“The act perpetrated on a survivor constitutes an offence in law, 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. Judges play – at all levels – 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,” it said.
The bench struck down the HC order which sparked outrage and prompted several lawyers, such as Aparna Bhatt, to move court to strike down the bail condition. The petition had drawn the court’s attention to such orders being repeatedly issued by trial courts and HCs and urged the court to declare that such remarks were unacceptable as they had the potential to cause grave harm to complainants. The petition had argued that judicial orders have to conform to certain judicial standards and take necessary steps to ensure that this does not happen in future.
The HC had asked the alleged molester to tie a rakhi with a promise to protect her to the best of his ability at all times and return to court with a photograph of the action so that he could be granted bail. He was asked to gift the woman a token amount of Rs 11,000 ‘from a brother to a sister’ and seek her blessings and another Rs 5,000 to her son for clothes and sweets.
The bench frowned upon such orders which give rapists and molesters access to the complainants and asked courts to pass bail conditions as per law. Imposing conditions like rendering community service in Covid-19 hospitals or in any other institution, planting trees, contributing to charity or relief fund, etc. was impermissible in law, the lawyers had argued.
Outraging the modesty of a woman is a crime and granting bail subject to such conditions renders the court susceptible to the charge of renegotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes, the bench said.
The course for lawyers and judges should contain topics such as appropriate court-examination and conduct and what is to be avoided. The Bar Council of India should also consult subject experts and circulate a paper for discussion with law faculties and colleges /universities in regard to courses that should be taught at the undergraduate level in the LLB programme. The BCI shall also require topics on sexual offences and gender sensitisation to be mandatorily included in the syllabus for the All India Bar Examination, the bench said.