BAIL TO SEXUAL OFFENCE, WAYS TO IMPROVE GENDER SENSTIVITY TOWARDS VICTIM.

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The judicial system of any democratic nation is an important instrument to usher in and secure the goals of a welfare state. The Indian judicial system too, along with other organs of the State, is entrusted with the ultimate task of transforming India into a welfare State wherein justice – social, economic, and political – shall form all the important institutions of national life. It also shoulders the primary responsibility of eliminating inequalities, furthering liberties, and assuring the dignity of the individuals; especially women.

As any institution can be appraised in terms of its effectiveness in the achievement of its goals through the results, the Indian judicial system too can be appraised similarly. Largely though, how an institution ‘works and delivers’ depends upon the individuals that ‘work it’. Applying the same logic to a judicial system, the quality of justice would greatly depend upon the judicial officers engaged in the administration of justice. 

A judicial officer as a pivot of the court system plays the role of a catalyst of social change, a guardian of rights, and is expected to achieve the constitutional ideal of justice through the judicial process of decision making and legal reasoning. The judicial officers must have a realist-rational perspective, minimizing the influence of any bias or prejudice in the judicial writing and communication.

The Indian society is thoroughly patriarchal in its nature and approach and gender stereotypes are deeply embedded in the mindset and conditioning of the masses. Judicial officers or judges, being a part of such society, are not untouched by such conditioning. Though a judicial officer is expected to have the highest constitutional and societal values, such stereotypical conditioning often gets reflected in judicial orders and judgments. This, in turn, compromises the quality of justice and perpetuates the existing stereotypes.

But as is rightly expressed by Anton Chekhov that “Wisdom…. comes not from age, but education and learning”, so also educating and training the novice judicial officers will bring the much necessary change towards gender sensitization that has now become an indispensable demand of justice. Dispensing justice is as important and complex as saving someone’s life and this task has to be performed with utmost cautiousness, wisdom, and responsibility.

Without a doubt, there are few groups of crime that affect society and their victim as much as rape, sexual assault, and the other so-called sex-related or sex crimes. The impact of rapes and sexual crimes can be seen in our lives and our children because they affect our overall sense of safety. According to Section 375 of The Indian Penal code, Rape is specifically defined as sexual intercourse with a women against her will, without her consent by coercion, misrepresentation, or fraud, or at a time when she has been intoxicated or duped, or is of unsound mind or lunatic and in any case, if she is under 18 years of age. 

 In the recent case of APARNA BHATT V. STATE OF MADHYA PRADESH, The Honourable Supreme Court set aside the order of the Madhya Pradesh High Court which has directed a man accused of sexual assault to get rakhi tied on the wrist by the victim as a condition for bail. Thus to improve such irrational decisions of the High Court the Supreme Court asked the Attorney General of India to suggest some ways for courts to improve gender sensitivity towards victims while place down bail conditions for the sex crime offenders. Also in the case of MOHIT SUBHASH CHAVAN V.STATE OF MAHARASHTRA, The former Chief Justice of India ( S.A. BOBDE) asked a government servant accused of repeatedly raping a minor girl whether he would marry the victim. Thirdly in the case of Vikram v. State of Madhya Pradesh, The Madhya Pradesh high court heard a case involving a sexual offense against a woman, the bench of Justice Rohit Arya ordered the bail for the accused on the condition that he visits the house of the petitioner and requests her to tie the Rakhi band to him “with the vow to keep the victim (petitioner) safe and secure to the best of his ability and capacity till the rest of his life.

Bail to an offense can be granted by the officer-in-charge of the police station or the police officer who is investigating. Under Section 170 of Cr. P.C. confers authority to grant bail in the officer-in-charge of the police station in case the person is accused of committing a non-bailable offense.

After analyzing all submissions of the cases, the Supreme Court said that in a legal system where judgments of courts set precedents, and particularly within a common law system, judgments have significance beyond their authoritative intent of a specific dispute. Thus, the judge is not only passing on to the concerned parties of the case; the judge is also addressing the broader legal community— other lawyers, judges, legal academics, law students—and the public at large.

After interpreting, all the cases the court held that the use of reasoning/language which decreases the offense and tends to trivialize the survivor is to be avoided under all circumstances. The court mentions the directions to be followed in cases of sexual violence:

  1. Bail conditions should not be a mandate or permit contact between the accused (respondent) and the victim (petitioner).
  2. Where a situation exists for the court to believe that there might be a potential threat of harassment of the victim (petitioner), the nature of protection shall be separately considered and appropriate order should be made, in addition to this direction should be made to the accused not to make any contact with the respondent.
  3. In all cases where bail is granted, the petitioner should immediately be informed that the accused has been granted bail and a copy of the bail order to be sent over within two days to the complainant.
  4. Bail process and verdicts should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly be following the requirements of the Cr. PC.to put it another way, analysis about clothes, behaviour, or past “conduct” of the accused ( respondent), should not enter the decision granting bail.
  5. The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions towards compromises between the petitioner and the respondent to get married, suggest mediation between the petitioner and the respondent, or any form of accommodation as it is beyond their powers and jurisdiction.
  6. The sensitivity should be put on a show at all times by the court, who should assure that there is no traumatization of the accused, during the proceedings, or anything said during the arguments.
  7. Judges chiefly should not use any words or phrases that would shake the confidence of the survivor in the fairness or impartiality of the court.

 According to Sec. 376 of The Indian Penal Code, the punishment for rape shall not be less than seven years but might extend to life imprisonment or a term which may extend to ten years and the accused shall also be liable to the payment of the fine. Since bail is granted to avoid punishing accused persons before conviction, bail, bail decisions should strike a balance between, on one side, the interests of justice and, on the other, the right to freedom of liberty and approach of innocence of the accused.

 While delivering any judgment,

  1. A judicial officer has to be mindful of several issues, especially while hearing a women-centric case so that the resultant judicial order or communication is gender-sensitive and in no way derogatory or misconceived. The following measures may prove to be helpful in this regard.

(i) Under Indian criminal law, forensic corroboration is considered legally relevant but not essential to prove a sexual offense like rape. But in practice, judges and police always give significant weight to forensic reports, therefore necessitating standardized medico-legal evidence. This should be stopped.

(ii) Crimes are presumed to be done against the society as large and thus should be governed by the rule of law only. No compromise should be ordered in cases of sexual offenses and when the accused is proven guilty, he/they should be ordered not to meet the accused again.

(iii) Though Granting or rejecting bails are the sole discretion of the judges but the grounds for granting or rejecting bails should be following the law and should not be illogical, misconceived, or superficial. As soon as the defendant is released, the accused must be informed of the same. If there is any danger or harm to the safety of the accused then the judge should keep this in mind while granting bail to the accused and should take necessary precautions and guidance for the safety of the accused and her family.

(iv) The judges while adjudicating sexual offense cases should not only take the physical bruises or pain of the accused into account but also the mental agony and her besmirched character in the society.

(v) Circumstantial evidence must be given due importance. If there were any interactions between the survivor and the accused then they must be properly examined before judging the character of the survivor.

(vi) Medical reports of survivor and the accused must be examined carefully before coming to any misconceived conclusions such as if survivor did not struggle then it means she consented for the sexual act.

(vii) Even if there is a need for compromise and it is coming from the side of the survivor voluntarily then the compromise must be in monetary terms. The survivor must be asked that how much compensation she wants to sustain herself and her family.

(viii) The nature of punishment must change. Heavy monetary punishments must be introduced rather than physical punishments.

(ix) The conditions of bail must be modified and made more rigorous. A modern and advanced form of banishment must come into the picture. After getting the bail the accused and (if need be) his family members may be ordered to leave that city where the survivor lives so that further crimes cannot take place against the survivor which actually and frequently happens after the accused gets bail.

  • In addition, the following measures/activities can be made part of the training of the newly inducted judicial officers.

(i) It should be made mandatory for every trainee judicial officer to work with at least one NGO running for women who are survivors of sexual assault, acid attack, etc. so they understand their hardships and stay humble and sympathetically detached.

(ii) Programs must be included where they can learn to better focus on what to avoid during procedures such as the use of language, making comments (for ex: ‘of loose character’) setting up of standards, imposing conditions, etc.

(iii) The trainee judicial officers should have a session with a psychologist who can explain to them the intricacies of human emotions and mental trauma that a victim, as well as an accused, goes through during a trial and how changes can be made that can be more accommodating to the parties in matters of sexual abuse or domestic violence.

(iv)  During training, judicial officers can be sent to the conflict areas to monitor and prosecute for sexual offenses to understand the sensitivity of the issue from close to and interact with the accused in their capacity at the ground level.

(v) The judicial officers should be sent on tours to various backward places in India. Backward means highly backward places where they will be allowed to understand the position of women and also make them aware of their rights and crimes against them. When they will understand the situation then they will know that what is the right justice and remedy for women survivors.

(vi)  All the newly appointed judicial officers after the usual training period should not be allowed to adjudicate on sensitive issues for at least 1 year and should be made to adjudicate trivial civil and criminal cases during such period as this would facilitate them to earn more wisdom and experience.

(vii) There is a great need of developing emotional intelligence in trainee judicial officers. For this, experts in understanding human behaviour should be called upon and train the judicial officers as to how to handle the survivor and accused without being influenced by their conditioning and situation.

(viii) The new trainees shall be made to realize that how powerful is their position through various inspirational talks and they should be given rewards for small initiatives on their part. All these small things will help them understand the importance of what they are going to do and they will do their duty because it is important and not because it is urgent. They will not think of adjustment injustice rather they will do justice in its real sense.

  • Model Module on Gender Sensitization for Training of Judicial Officers

The paper shall have two components: theory and practical.

  • Different lectures and webinars focussing on breaking the stereotypes against women and movies in which the offensive sexual approaches or the ways of harassing girls are romanticized should be shown entailing discussions.

Theory

A detailed and in-depth study of both special laws enacted for the protection of interests of women as well relevant provisions of general laws. This can be achieved through discussion and interaction with the resource person/faculty or through group discussions.

  • Women’s Rights Jurisprudence
  • Women and Constitution of India
  • Crime against Women and IPC
  • Protection of Women (Accused and Victim) under CRPC and Evidence Act
  • Study of Protection of Women for Domestic Violence Act, 2005
  • Detailed study of, The Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013
  • Dowry Prohibition Act, 1961
  • The Indecent Representation of Women (Prohibition) Act 1986
  • Immoral (Traffic) Prevention Act 1954

Practical

  • Involvement/Participation in Adult Literacy Programmes (especially in rural areas)
  • Interaction with NGOs/Self Help Groups working for the welfare of women
  • Interaction with survivors of acid attack, rape, and other heinous crimes who are well-known personalities as well as fighters in real life
  • Visit schools in rural areas and interact with students (especially girl students)
  • Workshops on the use of appropriate and gender-sensitive language in courts
  • Sessions/Interaction with behavioral psychologists.

Rape, sexual assault, and violence against women are grave human rights infringements, yet they remain global around the globe. Even though men and boys experience gender-based violence as well, women around the world are unreasonably affected by sexual violence, both during peace and wartime. According to the World Health Organization, more than 35 percent of women go through physical and sexual violence throughout their lifetime.

At last, I would like to highlight that sexual violence creates a stumbling block to peace and security. It hinders women from playing a part in peace and democratic processes and post-conflict reconstruction and reconciliation. As a tool of war, it can become a way of life: once it is well established in the fabric of society, it lingers long after the guns have fallen silent. Many women lose their well-being, livelihoods, source of income, partners, families, and support networks as a result of rape. This, in turn, can break into peace the formation that broadcast community values, and with that disrupt their transmission to future generations. Children/ teenagers familiar with the acts of rape can grow into adults who put confidence in such acts as the norm. This brutal cycle must stop taking place in society, as we cannot accept a selective zero-tolerance policy. 

Author: Kalyani Goel

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