APARNA BHAT V. STATE OF MP

APARNA BHAT V. STATE OF MP

INTRODUCTION:

The court rulings and directives issued in situations of sexual violence shows a pervasive paternalistic and sexist mentality. Madras High Court decision in 2014 ordered the mediation of a juvenile rape case. In a decision from the Haryana High Court in 2017, the complainant’s “casual relationships,” “promiscuous attitude,” and “voyeuristic thinking” were all criticised. 

However, on Thursday, March 18, 2021, Ravindra Bhat J. addressed “entrenched paternalistic and misogynistic attitudes” in gendered sexual violence judgements and orders, writing for a division bench. The Supreme Court of India heard this case, Aparna Bhat v. State of Madhya Pradesh, on a bench that included Justices AM Khanwilkar and S. Ravindra Bhat.

FACTS OF THE CASE

In response to an erroneous order made by the Madhya Pradesh High Court on July 30, the petition was filed by Advocate Aparna Bhat and eight other attorneys. The order required the accused went to visit the victim’s home on the occasion of Raksha Bandhan with a Rakhi and to be tied by her as a condition of release. The complainant Sarda Bai’s neighbor, the accused, attempted to sexually harass her on April 20, 2020, which led to the filing a charge sheet was submitted for an investigation into the case. The accused submitted a request for anticipatory bail under section 438 of the Code of Criminal Procedure. The Madhya Pradesh High Court granted the accused bail with the stipulation that he and his wife visit Sarda Bai’s home on August 3, 2020, for Raksha Bandhan, bring sweets, and ask her to tie the Rakhi to him with a promise to look out for her in the future. The petitioners have appealed this order before the Honourable Supreme Court. The accused was also ordered to hand over Rs. 11,000 as a gesture of gift given by brothers to their sisters as part of the customary Raksha Bandhan rites.

The petitioner appealed the Madhya Pradesh High Court’s decision to the Supreme Court of India. The petition also included the following supplications:

• The Supreme Court instructed the High Courts and trial courts to refrain from making comments in rape and sexual assault cases that would diminish the victim’s dignity and minimise their suffering.
• The courts shouldn’t try to reach agreements, like supporting a marriage between the accused and the victim, and they shouldn’t regard it as a form of judicial remedy. Such concessions violate a woman’s honour and dignity. In order to bolster his argument, the petitioner cited the State of Madhya Pradesh v. Madanlal case.
• The appellants further requested that no remarks or observations be made by the judge in the decision that would be biased and degrade the woman.
• No such restriction should be put in place in cases of sexual assault that would prevent the applicant from seeing the complainant or her family. The court was asked to give instructions on gender sensitization for the bench, the bar, and law students.

ISSUE OF THE CASE:

In such cases, is it possible to reach a compromise between the accused and the victim?

Is it appropriate for courts to make such rulings, and if so, what impact would they have on society?

Are these instructions sufficient to constitute unfair trial conducted?

Is it possible for the accused to speak with the survivor or any of her family members?

What rules should courts follow when deciding whether to issue bail and anticipatory bail, and why?

ARGUMENTS:

APPELLANT:

The appellant referenced Criminal Procedure Code Sections 437 (3)(c) and 438(2)(iv), both of which permit the court to impose any conditions they think appropriate in the public interest. The limits, however, must be consistent with the other requirements. The appellant cited the case of State of M.P. v. Madanlal in support of his argument that, in cases of sexual offenses, the idea of a compromise—specifically, marriage between the accused and the victim—is abhorrent and shouldn’t be considered a legal remedy because it would be detrimental to the victim’s honour and dignity. 

The court held that compromise is irrelevant when deciding rape and sexual assault cases in Ramphal v. State of Haryana. 

The appellant further requested that no ruling or order be made by the court that would harm the dignity of women or the impartial and fair conduct of trials.

RESPONDENT/ ACCUSED

The Respondent claimed that provisions 437(2) and 438 of the Code had been applied by the court. Specific standards for granting bail have been mentioned in a number of court decisions. Conditions can be used in many different contexts.

JUDGEMENT OF THE CASE:

The court made it clear that in rape and sexual assault cases, there can never be a compromise or even consideration of one because doing so would be against the victim’s honour. In order to ensure the fair conduct of the trial, courts and other law enforcement authorities have the duty to uphold their impartiality and neutrality. The confidence of rape survivors in the impartiality of the court would be destroyed by such tactics in rape and sexual assault proceedings. The court also stated that women suffer considerably due to their low status and society’s negative perception of them. They already face a great deal of difficulties because they are women in our society.

Judgements establish precedents that the entire society eventually adopts: Orders from the court, such as tying a Rakhi around the accuser’s wrist, reduce and degrade the charge of sexual harassment by turning the molesters into brothers. Therefore, it is important to avoid using logic or language that minimises the offence and strives to denigrate the victim at all costs. Such behaviour, in which the victim may experience several traumatising events, be coerced into accepting something against their will, or be compelled by external factors to accept and justify severe violations of the law, is not permitted or condoned by the law.

The petitioners demanded that the judgement of the High Court be overturned. According to the petitioners, courts may apply any conditions they see appropriate in the public interest under Sections 437 (3)(c) and 438(2)(iv) of the CrPC, but they must be compatible with the other provisions. The court in Ramphal v. State of Haryana came to the conclusion that compromise is meaningless when taking rape and sexual assault cases into account. The petitioner further requested that no ruling or order be made by the court that might undermine women’s dignity or the impartial and fair conduct of trials. She cited several instances in which the Supreme Court had rejected compromise proposals because they were inimical to women’s honour and dignity and because they devalued otherwise heinous crimes by implying that they could be rectified through the legal system.

The attorney for the interveners contended that Sections 437(2) and 438 gave the court the authority to impose sanctions. Requirements can take many different shapes, and the court identified several instances when judges imposed certain restrictions before granting release.

The Supreme Court set a number of rules in its order. These are listed below:

• If bail is granted, the complainant should be notified as quickly as feasible and should receive a copy of the bail order within two days. Contact between the accused and the complainant should never be permitted as a condition of bail.
• The terms of the order for bail must precisely follow the requirements of the CR.P.C. And must not be interpreted in a patriarchal manner against women.
• Any settlement suggested to the accused and victim, such as getting married or requiring mediation, ought to be rejected because it falls outside the jurisdiction of the court.
• To ensure that judges are sensitive when assessing cases involving sexual offences and to reduce inherent cultural bias and sexism, the court mandated a module as part of every judge’s basic training.
• Additionally, it has been requested that the National Judicial Academy incorporate gender sanitization into the education of future judges as soon as is practical.
• Similar to this, the Bar Council of India has been ordered to include gender sanitization as a required topic in the syllabus for the All-India Bar Exam as well as in the LL.B. curriculum.

The Madhya Pradesh High Court’s bail conditions were overturned by the Supreme Court, who praised the petitioner for his original thinking. In this regard, the court has developed a set of standards. Additionally, it endorsed the suggestions for the bar test, the introduction programme for newly appointed judges, and a gender-sensitive curriculum in law schools.

STATUTE AND CASE LAWS:

State of M.P vs. Madanlal

The IPC’s Section 376(2)(f) addresses the crime of rape on girls under the age of 12. The accused was found guilty by the trial court following a thorough investigation, and he was sentenced to seven years in solitary confinement. The accused sought an appeal with the High Court after feeling vindicated by the Trail Court’s ruling. The High Court presented the victim’s signed affidavit as consenting to the offer of a marriage proposal and changed the offence under Section 376(2)(f) to an offence under Section 354 of the IPC, reducing the punishment to the time already served.

The crime of assault and use of criminal force against a woman with the intent to offend her modesty is covered by Section 354 of the IPC. This is punishable by a fine, a period of imprisonment that may last up to two years, or by both.

The High Court’s decision was contested by the State of Madhya Pradesh before our nation’s highest court. According to the Supreme Court, rape cases cannot be compromised in any way. Further stating that such behaviour betrays a lack of regard for the dignity of women, the judge remanded the case to the High Court for a fresh review of the facts and ruling.

Rampal vs. State of Haryana:

Notes from the Honourable Supreme Court

The Supreme Court reaffirmed its ruling from the case of State of Andhra Pradesh vs. Rayavarapu Punnayya & Others, which said that “murder” is a kind of “culpable homicide.” Not all “homicide” is “culpable murder,” though. The Court further declared that there had been an argument between them and that the dead had provoked it. As a result, the appellant was forced to fire his gun, killing the deceased. 

The appellant’s charge was changed from Section 302 to Section 304 Part I, and he was sentenced to ten years of solitary confinement and a fine of Rs 10,000.

STATUTE:

437. When bail may be taken in case of non- bailable offence.

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.]

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his ¹ guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its ¹ reasons or special seasons] for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).

OBSERVATIONS:

The judges made it clear that, in rape and sexual assault cases, no accommodations can be made or even considered because doing so would go against the victim’s honour. Courts and other law enforcement organisations are expected to be impartial and charged with ensuring a fair trial by upholding their impartiality and neutrality. And such tactics in rape and sexual assault cases will harm the rape survivors’ faith in the fairness of the legal system. The Supreme Court also emphasised how badly society treats women and how much they suffer as a result. They already deal with a number of difficulties because they are women in this society.

Judgements establish precedents that the community as a whole follows at different stages, including:

By judicial decree, orders like tying a Rakhi around the accuser’s wrist turn the molesters into brothers, which has the consequence of weakening and degrading the crime of sexual harassment. Therefore, it is especially important to avoid using logic or language that minimises the offence and seeks to trivialise the survivor.

The law forbids such behaviour because it could subject the survivor to repeated trauma, cause them to accept something against their will, or force them to tolerate behaviour that would otherwise be considered a criminal offence.

CONCLUSION:

Indian society has long been blamed for the maltreatment of the victims. Women have frequently been questioned about their conduct, wardrobe preferences, attitudes, and intended departure times. Judges have frequently encouraged this practise during trials by interrogating the victim, making statements that stereotype certain actions, and threatening to end the case. Hope for judicial reform has been reignited as a result of the Supreme Court explicitly criticising such court behaviour. Seminars on gender sensitization will also help to make legal practitioners more aware of the problem.

The Supreme Court has set an important precedent for courts to follow going forward in how they handle sexual assault victims by issuing this ruling. For its huge audience, discussing the flaws of a patriarchal culture has set an example. This will be remembered in history as a crucial step towards the independence of women. It is believed that if the norms are upheld, future judicial orders won’t contain such arbitrary requirements.

Judges undoubtedly play the most important roles of educator, protector, and watchman. As a result, anything they say influences lower courts’ decisions and becomes a point of reference. As a result, it is crucial for judges to exercise the greatest level of caution when making any statements that could affect the confidence of individuals and the foundation of the legal system. Even minor errors in a court’s decision or declaration could result in real offence being taken out on the survivors in instances involving the grouping of women, particularly in sexual offence proceedings. There have been several instances of recent orientation-related cases where courts have believed the victim to make a compromise by allowing the accused to marry her, as in the present case, or by asking him to have the victim tie a Rakhi around his wrist, or by making any other compromise as the court may determine. Such translations are abhorrent in nature and reflect poorly on judges’ attitudes towards women, but the Supreme Court’s recent ruling confirmed the notion that the judicial system is a self-correcting process. Outlining the orientation sterilisation guidelines and including it in the LLB curriculum will help the legal advisors to nonpartisan and impartial attitude towards the women, which will likely help the victims in a fair direct trial with essentially no dread on their part.

Such remarks by trial courts and high courts, whether deliberate or not, should be avoided at all costs. A different word for this is judicial stereotyping. Judicial stereotyping is the practise of assigning particular traits to someone based on their gender, religion, caste, or race. As a result, judges frequently confirm harmful stereotypes instead of challenging them as they should. Such statements may have a stronger social influence because judicial pronouncements are seen by such a wide audience. Additionally, stereotypes run the risk of undermining the judge’s objectivity and preventing a fair trial. The credibility of the incident and the trauma experienced by survivors of sexual assault who do not fit the public perception are further undermined by the creation of rape myths or an idealised depiction of a sexual assault victim.

Women are underrepresented in the legal field, and they frequently encounter prejudice and offensive comments. Therefore, the first step in guaranteeing gender-biased-free judgements should be to foster an equal environment within the institution and promote awareness of the problem. Public dialogue and holding organisations with the power to change things accountable are the solutions to these problems. Such sexist judgements ought to be denounced and used as an illustration of unacceptable conduct.

CITATION:

1. Aparna Bhat v State of Madhya Pradesh (2021) Criminal Appeal No. 329/2021
2. Madanlal v. State of Madhya Pradesh  (2015) 7 SCC 681.
3. Ibid
4. Ramphal v State of Haryana 2019 SCC OnLine SC 1993
5. Ibdi
6. Section 43 of criminal procedure code, 1973
7. Section 438 of criminal procedure code, 1973

Written by ESHA CHATTERJEE (6th sem )BIRLA GLOBAL UNIVERSITY.