From a Gender-Bias, human rights, and legal perspective, here is a Sexual Harassment case which did not go down well with the social activists and the lawyer fraternity. Nine women lawyers have filed an appeal to set aside this court order.

Rakhi: Get it tied by the woman you molested, says Court to the accused, as a condition for granting bail.  

Social activists & lawyers see this Madhya Pradesh High Court order (July-Aug 2020) as being insensitive to women’s and human rights issues, besides not upholding the provisions of the CrPC.

What was the bail condition?

Usually, the bail condition is a personal surety amount and another proviso. This could be community service, not going anywhere near the Complainant or calling her.

In this case, the bail was a surety amount of Rs 50,000. And the accused should visit the Complainant’s house on Rakshabandhan with his wife. He should carry a box of sweets and give her Rs 11,000, the traditional ritual of giving something to the sister. And he should request her to tie Rakhi on his wrist, thereby promising to protect her (honor). He should also give Rs 5000 to her son for clothes and sweets.

What’s bizarre here is obvious (Rakhi tying)! This Court order is not the kind of bail condition usually ordered by a Judge, much less a High Court Judge. 

Do (unusual) Court Judgments and precedents matter?

Yes. Such unusual judgments get reported on several media platforms and lead to a tremendous amount of public discourse. They can lead to a barrage of criticism amongst the people fighting for a change in society. Additionally, legal practitioners file appeals seeking to set aside such Court orders that do not follow statutory provisions.

Court Judgments affect people’s perceptions about what justice is and how Courts serve it. While some Supreme Court & High Court judgments have drawn praise and appreciation the world over, other judgments have invited criticism from large sections of society. Court judgments also reflect the mentality of the judiciary, who are also people. An outlandish judgment like this one can mirror the judges’ regressive mindset towards women.

The Courts set precedents when they pass judgments that are unusual or reflect the ‘times’ when they pass it. During the Covid era, many Court Judgments have taken the pandemic into account. 

They also set standards for future Court Judgments. 

What was the Honorable Judge thinking?

In this particular case, the Court was passing the interim order a few days before Rakhi. The festival of Rakshabandhan was undoubtedly playing on the judge’s mind. The honorable judge probably wanted to make the accused regret his behaviour of molesting the girl and prevent future incidents between the two parties.

How is the bail condition insensitive to Women’s issues?

Did the honorable judge contemplate if the woman complainant would feel uncomfortable, maybe aghast, when the molester calls on her with a Rakhi and sweets? 

Of course, the woman has the liberty not to invite the accused (incidentally her neighbor) and his wife inside her house. But it is customary in our culture to welcome someone to their home during a festival and offer them something to eat and drink. This event would surely place her in a double-dilemma situation. Moreover, did she need to hear the promise of ‘protecting her honor’ from a person who, she has alleged, sexually assaulted her?

Our patriarchal culture still considers a woman as a male’s property, be it father’s, brother’s or husband’s. Our society does not think of a woman as a person with her own free will. Thus, the High Court Order decreed the bail condition without considering that it might be impinging on her choice.

The Need for Gender-Sensitizing Court Judges

Mr. K K Venugopal, the Attorney General for India, has submitted before the Supreme Court that judges should be gender-sensitized and educated. The education should be to focus on the facts of the case and follow the principle of law. “Orders in sexual assault cases asking the accused to get the victim to tie him a ‘Rakhi’ are drama,” Venugopal stated.

Senior Advocate Indira Jaising, who has done immense work on women’s issues, said that judges’ training was not enough. “We need guidelines on do’s and don’ts for judges in the language they use in their judgments,” she said.

Jaising further added that tying a Rakhi on a victim of molestation as a bail condition was particularly unacceptable. She said it reinforced cultural stereotyping over legal accountability.

The Need to Curb, not Continue Gender Stereotyping

In another regressive Court judgment perpetuating Gender-Stereotyping, Karnataka High Court allowed bail to an accused in a rape case, commenting that the victim fell asleep after the rape. The honorable judge observed it was “unbecoming of an Indian woman” to sleep after being raped. “This is not how our women react when they are ravished,” he justified granting the bail. The victim’s explanation that she was tired and fell asleep prompted the judge to make the above remarks. 

Does the Indian woman’s behavior after the rape have to be a certain way, which does not include falling asleep? This mindset of expecting women to behave in a certain way perpetuates backward thinking towards women, a pre-existing malaise of our patriarchal society.

What can the PoSH Committee Members learn from these Court Orders?

PoSH Act, 2013 bestows the same powers to the Internal Committee (IC or ICC) as vested in a Civil Court (vide Code of Civil Procedure 1908). With great power comes great responsibility. Therefore, the critical takeaway for PoSH Committee Members is that they should carefully consider all aspects of a matter, the evidence before it and then arrive at a reasoned decision.  

The IC decides Interim Relief measures during the inquiry and the quantum and nature of Punishment after completing the inquiry.

Interim Measure Must Restrain Accused to Approach Victim

As an Interim Relief measure, the IC must prohibit the Respondent (accused of Sexual Harassment) from approaching or contacting the Complainant. If the Respondent fails to obey, IC is well within its rights to suspend him/her from employment until the inquiry’s completion.

An IC needs to pass orders after carefully weighing the facts and evidence. Any punishment they provide must be proportionate to the offense and within the parameters of the PoSH Act and/or the organization’s PoSH policy.  

For more information on PoSH at Workplace, call us today. Rainmaker is a complete PoSH Solutions company. Our eLearning modules form the bedrock of large MNCs and Indian corporates. We have several eminent & expert lawyers on the panel as External Members, who are well versed in Case Judgments in Sexual Harassment space.

PoSH Act, 2013: Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. 

A PoSH Committee (IC or ICC) is constituted under the PoSH Act (vide Section 4) to provide Redressal to Sexual Harassment Complaints at workplaces. 

Author: Sumali Nagarajan

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References:

Judges need gender sensitisation, says AG on MP High Court’s ‘tying rakhi order’ in bail matter – By The LeafletBYTHE LEAFLET

Karnataka HC says it’s ‘unbecoming of our women to sleep after rape’, grants bail to accused – By The Week Web Desk

Marriage of Rape Victim to the Accused leads to Court Quashing Charges: A Legal Fiasco – By CCLSNLUJ

Tie a rakhi on victim’s wrist for bail, judge tells molester – By India Legal Live

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