2021 (3) TMI 1481 - SC - Indian Laws

Arbitrary bail conditions in sexual-offence cases struck down; bail must bar contact, protect survivors, and ensure timely notice

SC set aside arbitrary bail conditions in a sexual-offence matter and disposed of the appeal, issuing binding directions: bail conditions must not mandate ... Imposition of certain bail conditions in a case involving a sexual offence against a woman - imposition of extraneous, arbitrary or stereotypical conditions as a condition of bail in sexual offence cases - HELD THAT:- It is hereby directed that henceforth: (a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused; (b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; (c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; (d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail; (e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; (f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and (g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. This Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued - the bail conditions in the impugned judgment are set aside - appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether courts may impose bail conditions that require or permit contact between accused and victim in offences involving sexual violence. 2. Whether courts may impose extraneous, arbitrary or stereotypical conditions (including symbolic rites, community service unrelated to the offence, or mediation/marriage) as a condition of bail in sexual offence cases. 3. The permissible scope of judicial discretion under Sections 437(3)(c) and 438(2)(iv) CrPC in framing bail conditions and the limits imposed by the object and purpose of bail provisions. 4. Whether judicial orders and reasoning may reflect or perpetuate gender stereotypes, victim-blaming or language that diminishes the survivor or trivializes the offence, and what remedial measures (including training/gender sensitisation) are appropriate. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether courts may impose bail conditions that require or permit contact between accused and victim in sexual offence cases. Legal framework: Sections 437(3)(c) and 438(2)(iv) CrPC permit imposition of 'such other conditions' as the court thinks fit in the 'interest of justice'; the object of such conditions is to protect the integrity of investigation/trial and public interest, not to expose victims to further harm. Precedent treatment: This Court in earlier decisions has held that conditions must further 'good administration of justice' or 'advancing the trial process' and must not be arbitrary or beyond the ends of the provision; conditions should avoid hampering investigation or trial. Interpretation and reasoning: The Court reasons that conditions mandating contact (e.g., requirement to visit victim's house, perform symbolic rites) transform the relationship between accused and victim, risk retraumatisation, and undermine the protective purpose of criminal process. There is no nexus between such mandated contact and the fairness or propriety of investigation or trial. Ratio vs. Obiter: Ratio - bail conditions must not mandate or permit contact between accused and victim where such contact risks harassment or retraumatisation; such conditions are beyond permissible scope of bail conditions. Obiter - examples of impermissible symbolic conditions (e.g., rakhi-tying) illustrating the principle. Conclusion: Courts shall not impose bail conditions that mandate, require or permit contact between the accused and the victim; bail conditions should seek to protect the complainant from further harassment and, if necessary, protection measures should be separately considered with police reports. Issue 2: Whether courts may impose extraneous, arbitrary or stereotypical conditions (including symbolic rites, community service unrelated to the offence, or mediation/marriage) as a condition of bail in sexual offence cases. Legal framework: The discretion under Sections 437 and 438 must be exercised with utmost restraint and only to secure investigation/trial; conditions must have a proximate nexus to ends of bail provisions and not be arbitrary, fanciful or beyond purpose of provision. Precedent treatment: The Court follows and applies earlier decisions emphasizing restraint (e.g., that conditions enable fair investigation and trial and should not be used to impose community service, fundraising, or reformative obligations lacking nexus). Prior rulings have rejected reliance on compromise or marriage proposals as relevant in sexual offence adjudication. Interpretation and reasoning: The Court finds that conditions such as performing symbolic rites (transforming a molester into a 'brother'), forced apologies, compulsory community service (including COVID-related work), or orders facilitating compromise/marriage have no legitimate relation to investigation or trial fairness and may trivialize the offense, perpetuate impunity and infringe liberty and equality. Such conditions may also amount to judicial stereotyping or indirect compulsion of victims to accept non-judicial remedies. Ratio vs. Obiter: Ratio - imposition of extraneous conditions without nexus to investigation/trial is impermissible; conditions that implicitly condone or diminish the harm caused by the accused are forbidden. Obiter - catalogue of illustrative impermissible conditions (e.g., tree plantation, charity contributions, symbolic rituals) and description of harms they cause. Conclusion: Courts must refrain from imposing arbitrary, irrelevant or stereotypical bail conditions; mediation, compromise, or marriage proposals as a judicial remedy in non-compoundable sexual offences are unacceptable and beyond judicial jurisdiction. Issue 3: Permissible scope of judicial discretion under Sections 437(3)(c) and 438(2)(iv) CrPC. Legal framework: The statutory language confers discretion to impose conditions 'in the interest of justice' but this must be purposively read as advancing the trial process or ensuring good administration of justice; conditions must be reasonable, relevant and proportionate. Precedent treatment: Reliance placed on prior directions that discretion is not unfettered; courts must avoid arbitrary or fanciful conditions and must confine conditions to those securing investigation/trial integrity and protection of public interest. Interpretation and reasoning: The Court reiterates that the 'interest of justice' cannot be read expansively to permit conditions unrelated to investigation or trial. Discretion exercised to impose conditions must have nexus to preventing tampering, ensuring presence at trial, or protecting victims and witnesses. Conditions that transform judicial function into social reform or fundraising are beyond scope. Ratio vs. Obiter: Ratio - statutory discretion to impose conditions is limited by purpose of sections; conditions must be relevant to investigation/trial and protective of complainant. Obiter - emphasis on accused's presumption of innocence and that onerous reformative obligations during trial may violate equality and personal liberty. Conclusion: Judicial discretion under Sections 437/438 is to be exercised with restraint; permissible conditions are those linked to the object of bail provisions (ensuring attendance, preventing tampering, protecting complainant), and not to achieve extraneous social objectives. Issue 4: Whether judicial orders and reasoning may reflect or perpetuate gender stereotypes or victim-blaming; remedial measures including gender sensitisation. Legal framework: Principles of impartiality and non-discrimination require judges to avoid manifesting bias or prejudice on irrelevant grounds; international instruments and judicial conduct guides condemn judicial stereotyping and prescribe awareness of diversity. Precedent treatment: The Court reiterates prior admonitions against characterising prosecutrixes by reference to 'morals' or 'loose character', and reliance on authorities that stress avoidance of stereotyping and the duty of neutrality and fairness. Interpretation and reasoning: The Court explains how gender myths and stereotypes (e.g., assumptions about women's behaviour, dress, sexual history, or conduct at night) distort assessment of evidence, discredit survivors, and impede access to justice. Judicial language that trivializes offences or reinscribes patriarchal norms undermines public confidence in impartiality and damages survivors. Consequently, judges must avoid stereotypical reasoning and any expression that could retraumatise survivors or discourage reporting. Ratio vs. Obiter: Ratio - judicial orders and reasoning in gender-related crimes must not employ stereotypical, patriarchal or victim-blaming language; such language is impermissible and may affect fairness. Ratio - courts must ensure complainants are promptly informed of bail grants and protected from further harassment. Obiter - detailed lists of stereotypes to be avoided and international guidance cited for illustration. Conclusion: Judicial stereotyping and victim-blaming are forbidden. The Court mandates that (a) bail orders not reflect patriarchal notions; (b) complainants be informed promptly on grant of bail; (c) courts must not suggest mediation or marital compromise; and (d) judges must not use words or conduct that undermine survivors' confidence in impartiality. Remedial and procedural directions (ancillary but integral to conclusions) Legal framework and precedential support: Drawing from national jurisprudence on fair trial and international guidance and judicial conduct principles. Interpretation and reasoning: Given prevalence of problematic orders, systemic measures are necessary to prevent recurrence and to sensitize judiciary and bar to gender bias and stereotyping. Ratio vs. Obiter: Ratio - mandatory measures directed as part of Court's supervisory role: inclusion of gender sensitisation module in foundational judicial training; National Judicial Academy and State academies to prepare curricula in consultation with subject experts within specified timeframe; Bar Council to include gender sensitisation and sexual offences topics in law curricula and All India Bar Examination; High Courts to devise modules for Judicial Services Examination. Obiter - suggested content and rationale for training and interdisciplinary consultation. Conclusion: The Court directs institution-wide gender sensitisation and training measures for judges, prosecutors, and lawyers; directs High Courts and training institutions to formulate modules and include them in examinations and continuing judicial education; and orders expunction of the impugned bail condition mandating rakhi-tying and related payments.