It’s hard to believe that a court, considering bail in a sexual harassment case, should stipulate that the accused must visit the woman concerned with ‘a box of sweets’ and request her to complete various traditional rituals with him, that would bind them together as ‘brother and sister’.
But the order gets worse: the court also instructed that the accused offer money to the woman’s son ‘for clothes and sweets’. He was also to photograph the interaction between himself and the woman and her son, and file the photos with the court.
The whole story played out in India, whose jurisprudence is influential in a number of African countries, and the result has been a landmark judgment from India’s supreme court.
The court not only criticised and overturned the bail conditions, it went even further with a wider ruling that seems like a highlight of this year’s international women’s month.
The court began its decision with this quote from the playwright Henrik Ibsen: ‘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.’
The appeal was brought by a group of ‘public-spirited individuals’, worried about the precedent that such controversial bail conditions were setting. They asked the supreme court to direct trial courts not to make ‘observations and impose conditions’ in rape and sexual assault cases, that ‘trivialise the trauma’ experienced by survivors of sexual assault and that ‘adversely affect their dignity’.
The judges said it was a sad fact that even though India was committed to equality for all, ‘many courts’ didn’t seem to realise that there was a problem. They said they were writing their judgment to address what seemed to be ‘entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments’.
They expressed concerned about judicial decisions in cases involving sexual offences, particularly where children were targets of sexual assault, by judges who ‘granted bail on the plea that an agreement to marry’ had been reached between the parties. They were also alarmed by submissions showing that judges, adjudicating sexual harassment and rape cases, ‘have made shocking remarks on the character’ of the woman concerned.
The applicants wanted to stop judges from imposing inappropriate or peculiar bail conditions in sexual assault matters. By way of example they noted a case where the court told the accused to register ‘as a Covid-19 warrior’, so that he would be assigned work with Covid-19 disaster management.
Nor should bail conditions require the accused to go to the house of the woman concerned or meet the survivor and her family.
They wanted the supreme court to stop judicial ‘mediation’ between parties in sexual assault cases, particularly when mediation was aimed at getting the parties to marry each other.
In response, the judges said that in India violence against women was seen as acceptable in some communities. The culprits were often known to the woman but the social and economic ‘cost’ of reporting the crime was high. Fear of being ostracised by society was a ‘significant disincentive’ to report. ‘This silence needs to be broken.’
Sexual violence included stalking and harassment, sometimes dismissed as ‘minor’ problems. But they were not minor, and were ‘regrettably triviliased and normalised, even romanticised and therefore invigorated in popular lore such as cinema’ even though they had a ‘lasting and pernicious effect’ on survivors.
Crime statistics showed certain kinds of offences against women had not declined. Courts had to be a forum where survivors could expect impartiality and neutrality. Using traditional rituals as a condition for bail ‘transforms a molester into a brother, by judicial mandate’. ‘This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment.’
‘Judges can play a significant role in ridding the justice system of harmful stereotypes. They [should not] engage in gender stereotyping.’ Under the Bangalore Principles of Judicial Conduct, judges are not to make ‘any comment that could affect the outcome or fairness of a case and they may not show bias or prejudice towards any person or group on irrelevant grounds.’
‘This court therefore holds that the use of reasoning or language which diminishes the offence … is to be avoided under all circumstances.’ Judges should particularly avoid saying that a woman had behaved promiscuously, or that she had behaved in a way that was ‘unbecoming of chaste women’.
Such attitudes should never be found in judicial decisions and could not affect whether to grant bail. It was ‘especially forbidden’ to impose conditions that exposed the survivor to secondary trauma, like mandatory mediation, requiring that the accused must in any way be in contact with the survivor.
Even a single case involving such conditions ‘reflects adversely on the entire judicial system of the country’. The judges therefore directed that from now on, bail conditions should not ‘require or permit’ contact between the accused the victim but should rather protect the complainant from any further harassment by the accused.
Bail conditions were to avoid reflecting stereotypical notions about women and their place in society. ‘Discussion about the dress, behaviour or past “conduct” or “morals” of the [survivor]’ was not allowed. Nor was any suggestion of a compromise ‘marriage’ to be made by a court.
Judges were not to use any words that would shake the confidence of the survivor of the court’s fairness. They were also not to express any stereotype opinion such as that women were weak and need protection, that they couldn’t take decisions on their own, that men were the ‘head’ of a household and had to take all family decisions, that women should be ‘submissive and obedient’, that ‘good’ women were sexually chaste, that motherhood was the ‘duty and role’ of all women, that women were emotional and overreacted and so it was necessary to corroborate their evidence and that lack of evidence of physical harm in sexual offences cases should lead to an inference of consent.
The court also stipulated that judges, lawyers and prosecutors should have gender sensitivity training that emphasised the role that judges should play in eliminating misogyny. They requested the national judicial academy to devise suitable training courses for young judges and that the Bar council of India should ensure that similar training was included at law schools.