APARNA BHAT & ORS. versus STATE OF MADHYA PRADESH & ANR.

Citation: [2021] 4 S.C.R. 479 · Decided: 18-03-2021 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

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Judgment (excerpt)

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   [2021] 4 S.C.R. 479
479
APARNA BHAT & ORS.
v.
STATE OF MADHYA PRADESH & ANR.
(Criminal Appeal No. 329 of 2021)
MARCH 18, 2021
[A. M. KHANWILKAR AND S. RAVINDRA BHAT, JJ.]
Bail condition – Accused guilty of sexual offence – Rakhi
tying as a condition for bail, propriety – Imposing conditions that
implicitly tend to condone or diminish the harm caused by the
accused and have the effect of potentially exposing the survivor to
secondary trauma is forbidden – The law does not permit or
countenance such conduct, where the survivor can potentially be
traumatized many times over or be led into some kind of non-
voluntary acceptance, or be compelled by the circumstances to
accept and condone behavior what is a serious offence – 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 – Granting bail, subject to such conditions, renders the
court susceptible to the charge of re-negotiating and mediating
justice between confronting parties in a criminal offence and
perpetuating gender stereotypes – Crime against women – Gender
violence.
Crime against women: Sexual offences – Role of the courts
and law enforcement agencies as neutral authorities, under a duty
to ensure fairness – 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
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
compromise as it is beyond their powers and jurisdiction – Sensitivity
should be displayed at all times by judges, who should ensure that
there is no traumatization of the prosecutrix, during the proceedings
– Judicial restraint.
Judicial stereotyping: Concept of – It is a common and
pernicious barrier to justice, particularly for women victims and
survivors of violence – Such stereotyping causes judges to reach a
view about cases based on preconceived beliefs, rather than relevant
facts and actual enquiry – ‘Judicial stereotyping’ refers to the
practice of judges ascribing to an individual specific attributes,
characteristics or roles by reason only of her or his membership in
a particular social group (e.g. women) – It is used, also, to refer to
the practice of judges perpetuating harmful stereotypes through
their failure to challenge them, for example by lower courts or parties
to legal proceedings – Stereotyping excludes any individualized
consideration of, or investigation into, a person’s actual
circumstances and their needs or abilities.
Administration of justice: Role of the courts – Judges can
play a significant role in ridding the justice system of harmful
stereotypes – They have an important responsibility to base their
decisions on law and facts in evidence, and not engage in gender
stereotyping – This requires judges to identify gender stereotyping,
and identify how the application, enforcement or perpetuation of
these stereotypes discriminates against women or denies them equal
access to justice – Stereotyping might compromise the impartiality
of a judge’s decision and affect his or her views about witness
credibility or the culpability of the accused person – 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. – Judicial stereotyping – Judicial Bias.
Disposing of the appeal, the Court
HELD : 1. Women often experience obstacles in gaining
access to mechanisms of redress, including legal aid, counselling
services and shelters. They are re-victimized and exposed to
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further risk of violence through the denial of redress in the
context of informal trials or negotiations betw

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