The Supreme Court on Wednesday forbade judges from making gender stereotypical comments like “’good women are sexually chaste”, women who drink and smoke ‘ask’ for sexual advances or presume that a sexually active woman consented to rape while hearing cases of sexual offence.
A Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat stopped judges from trying to mandate marriage or compromise between a molestor and his victim. The Bench, in a judgment, proscribed judges from granting bail to suspected sexual offenders on the condition that they perform “community service” or apologise to their victims. The Supreme Court forbade the accused from getting in touch with the survivor.
The court said the victim should be immediately notified if the accused is given bail in a sexual offence case. She should be given a copy of the bail order within 48 hours.
The 24-page verdict, authored by Justice Bhat, set aside a Madhya Pradesh High Court order granting bail to a suspected molestor provided he visits his victim at her home and ‘allows’ her to tie a rakhi on him.
“Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate,” Justice Bhat wrote.
In a scathing verdict, Justice Bhat said judgments and orders continue to reflect “entrenched paternalistic and misogynistic attitudes” even after 70 years as a Republic. “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,” Justice Bhat quoted Henrik Ibsen in exasperation.
The Supreme Court said the law does not countenance a scenario where a victim can potentially be traumatised many times over and be led to accept or condone a serious offence.
“Even a solitary instance of such order or utterance in court reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence [of any kind from the most aggravated to the so-called minor offences],” Justice Bhat observed.
The Supreme Court held that judges should avoid under all circumstances from using reasoning/language which diminishes a sexual offence and tends to trivialise the survivor. The court gave several examples of such crassly stereotypical expressions like “women are physically weak and need protection”; “men are the head of the household”; “motherhood is the duty and role of every woman”; “being alone at night or wearing certain clothes make women responsible for being attacked”; “women are emotional and often overreact or dramatize events”; “lack of evidence of physical harm in a sexual offence case leads to an inference of consent by the woman”, etc.
Justice Bhat noted how the stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault.
“Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc,” Justice Bhat observed.
“Outlaw behaviours” like stalking, eve-teasing, shades of verbal and physical assault, and harassment are typically characterised as “minor offences” and even romanticised. These crimes are indulgently viewed through prisms like “boys will be boys” and condoned.
Judges should not fall into the trap of stereotyping. A judge’s address is not limited to the parties in a case but extends to the broader legal community of other lawyers, judges, legal academics, law students and indeed the public at large, Justice Bhat warned.