CASE SUMMARY: APARNA BHAT V. THE STATE OF MADHYA PRADESH 18 March, 2021

Facts

• The petition was filed by Advocate Aparna Bhat and eight other advocates against the Order of the Madhya Pradesh High Court dated July 30 in which the court acceded to bail by saying the accused had gone to the victim’s house to celebrate Raksha Bandhan and that he was coerced into accepting a Rakhi from the victim.
• The accused, neighbors of the complainant Sarda Bai, is accused of entering her house on 20.04.2020 and tried to sexually harass her. Police filed an FIR on behalf of the complainant against the accused for offenses under Section 452, 354A, 323, and 506 of the Indian Penal Code (IPC). The police completed their investigation and filed the charge-sheet.
• The accused filed an anticipatory bail application under Section 438 of the Code of Criminal Procedure (Cr.P.C).
• There were certain conditions placed on the accused by the High Court of Madhya Pradesh at the time bail was granted. They found that the accused and his wife visited Sarda Bai’s house on August 3, 2020, for Raksha Bandhan. They brought a box of sweets with them, and the accused asked Sarda Bai to tie a Rakhi to him, promising to protect her to the best of his abilities. Furthermore, the accused gift Rs. 11,000. This was a customary gift given by brothers to their ‘sisters’ on Raksha Bandhan. The petitioners have appealed this decision to the Hon’ble Supreme Court.

Issues

• Are court orders like this considered acceptable by society?
•  Do such orders constitute an unfair manner of conducting the trial?
•   Is it permissible for the accused to have contact with the survivor or her family members?
• What are the key guidelines should courts adhere when granting bail and anticipatory bail?

Contention 

Petitioner’s contention 

The Counsel in argued points referring to the trial process or bail conditions raised concerns regarding the fairness of the trial process. They also mentioned a particular, specific order of bail for the accused to attend in the complainant’s house, which the appellants argued to be inappropriate because it gave the accused access to the survivor and survivor’s family.
The case of Vikas Garg v. State of Haryana was mentioned in which the High Court of Punjab granted bail to three people being charged with various sections of the IPC and alleged under the IT Act. In the decision, there were statements made by the court around the character of the victim in terms of “having casual relationships” and a “promiscuous attitude”.

The appellants asserted that it was incorrect to grant bail based on the victim’s perceived sexual behaviour or character, both of which victimized the victim.

The Attorney General suggested mandatory gender sensitization training for judges at all levels and called for the National Judicial Academy and the State Judicial Academies to incorporate it and repeat it. The Attorney General also suggested that gender sensitivity awareness be a mandatory course included in a law school’s curriculum and the All India Bar Exam; that High Courts include a gender sensitization course in their curriculum for Judicial Services Examinations and training judges.

The appellants also stated women face significant barriers to accessing justice mechanisms like legal aid, counseling, and shelters. Informal trials or family-led negotiations would exacerbate their victimization and violence, and in some cases financial compensation acted as a remedy. The systemic aspect of the violence against women in India and its historical and structural roots in patriarchalism and intersecting discriminations find their most insidious presence here, including caste, class, disability, sexual orientation and tradition.

Respondent’s contention 

It was contended by the Respondent that authority under sections 437(2) and 438 of Cr.P.C. has been imposed by the court. Specific criteria for granting bail have been mentioned in a number of court rulings. Conditions can be utilized in various ways.

Rationale 

Sections 437(3)(c) and 438(2)(iv) of the Cr.P.C. mdecision pertaining to bail conditions fall within the discretion of courts whenever it imposes restrictions that will not conflict with legal requirements and most importantly, the established grounds of the bail system. However, courts should not entertain suggestions or compromises such as a marriage, even in indirect ways, between the victim and the accused, as it is beyond the courts’ authority. Finally, the decision also locates the boundaries of violence against women, under the Declaration on the Elimination of Violence Against Women (DEVAW), which specifically removes any ambiguity about its definition of violence, including physical, sexual, and psychological violence within the family, community, and in public. It also stated clearly that courts are not to express personal or social outlooks on women or propose conditions that would put the survivor at further risk or derail serious issues just beginning; as you do not know what that woman survivor has experienced and re-visited, and by doing so a court could impose conditions that, in offering mediation or community service for instance, in non-compoundable offences, could re-trigger harm to that woman.

Defects of law 

A decade since the introduction of the POSH Act 2013, and unfortunately there continues to be significant challenges with its implementation as pointed out during a recent critique by the Supreme Court of India as it pointed out many systemic issues from lack of commitment to procedural knowledge, lack of compliance to processes, and needing proactive measures from stakeholder engagement. The Court said that the law was incorrect, and ordered regular training/awareness programs from the organization for the Internal Committee members and staff to be rolled out. Studies show that there is an alarming lack of awareness and knowledge of POSH by workers and HR professionals. Moreover, many victims are unaware of their respective rights and protections. The provisions of the Act also has its shortcomings including its protection provisions are not gender-neutral, and guidance on how to deal with anonymous complaints and dealing with multiple organizational cases are not clear. Other noted issues include filing complaint timeframes that are too short, and there are inadequate protections against retaliation for complainants can detract from the efficacy of the Act. Proposed amendments to extend the timeframes and address other issues are an encouraging step but can be considered as work-in-progress. For employers, the challenge is to improve knowledge, improve redress mechanisms, and grow a culture of confidentiality and protection against retaliation, but also push for organizational culture shifts.

Inference 

The Supreme Court of India overturned the order of the Madhya Pradesh High Court to grant bail to the Respondent/Accused. At minimum, the accused and his wife were required to visit Sarda Bai’s residence on August 3, 2020, during Raksha Bandhan; the accused was required to take a box of sweets, he was planned to promise assertive protection in the future, and the accused passed along a customary Raksha Bandhan gift of Rs. 11,000. On top of this, the Court cautioned against adopting a lenient approach that may have resulted in errors of judgment, and told Justice Bhat that survivors look to the courts for impartiality and neutrality throughout the criminal process. Justice Bhat noted that while judgments seek to resolve specific legal disputes, they are also signals of more general principles to the legal community, and the public. Justice Bhat stated that any middle ground approaches are putting sexual harassment at risk. He condemned the trivialization of sexual harassment as something less significant which can be resolved by apologizing, doing charitable work, or simply tying a rakhi or a gift exchange.

This case represents a pivotal moment in the relevant law and social implications. Justice S. Ravindra Bhat stated that there have been instances of the judgment of sexual violence being often weak because of what was termed judicial stereotyping. Judicial stereotyping is where judges systematically apply and normalize assumptions based on sub-groups. Such as gender, religion, caste, or race. If we call it systemic or social stereotyping, the ruling body must be neutral and objective so it is a fair trial and reduces unjustifiable prejudicial judgments. Compromises or settlements, such as tying a rakhi or some other symbolic gesture reduce the person’s dignity and offend seriously. Courts will be under the supervision of the law once judges take action that diminishes the severity of sexual harassment and victims and frustrates a victim’s confidence in the justice system that protects them. The Supreme Court spoke to the systemic issues women face in broader society and the negative implications for the criminal justice system when attitudes towards the severity of sexual violence diminishes. Judges must be very careful because when judges make judgments, they write precedents that lower courts follow. We do not want sexual violence cases to compound the injury caused to the primary victim and contribute to injury to the standard operating procedures of the judicial system.

Major guidelines given under the case: 

1. It is not possible on any set of circumstances to allow contact between the accused and complainant as a bail condition, and if bail is granted, the complainant is to be immediately informed and provided a copy of the bail order within two days.
2. The adherence to the Criminal Procedure Code’s guidelines in bail conditions must never align with the availability to women and their treatment bestowing attitudes that are patriarchal towards them.
3. No compromise could be offered by this court between the defendant and victim of marriage or mediation etc., as the court is not permitted to consider it. Along with the earlier stipulations, the Court ruled to put in place guidelines, which the Attorney General referred to as gender sensitization within the judiciary which should be necessary level.
4. The court ordered a each judge undergo a module to be included in their initial training to ensure and provide more sensitivity when examining sexual offense cases, and not succumb to social bias and misogyny that has deep roots.
5. The task of including gender sensitization in the training of young judges as soon as possible has been assigned to the National Judicial Academy. Similarly, an instruction was given to the Bar Council of India to incorporate gender sensitization into the LL.B. program curriculum and to include it as a required topic in the All-India Bar Examination curriculum.