Gender Justice: SC did well to set aside a regressive bail-order of the Madhya Pradesh High Court

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March 19, 2021 6:46 AM

SC sets aside MP HC bail order calling for the accused in a sexual assault case to get a rakhi tied by the victim

The SC bench of Justices AM Khanwilkar and Ravindra Bhat also directed the lower courts to refrain from suggesting or entertaining any notions “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.”The SC bench of Justices AM Khanwilkar and Ravindra Bhat also directed the lower courts to refrain from suggesting or entertaining any notions “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.”

The Supreme Court did well to set aside a regressive bail-order of the Madhya Pradesh High Court, in which it had said that the accused, in a sexual assault case, will have to get a rakhi tied by the plaintiff as a prerequisite for obtaining bail. Such inane reasoning from the judiciary, particularly in cases involving female plaintiffs, has long tainted justice in the country (recall, in this context, a Bombay High Court additional judge’s blinkered interpretation of sexual assault under the Pocso Act). Against the backdrop, the SC telling lower courts that, as reported by indianexpress.com, bail conditions and orders in relation to cases of crimes against women must “avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the CrPC”—that is, discussion about dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail—signals a refreshing new outlook on gender justice.

The SC bench of Justices AM Khanwilkar and Ravindra Bhat also directed the lower courts to refrain from suggesting or entertaining any notions “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.” Many members of the Indian judiciary need to be trained in looking at the law and their powers in the light of gender justice, a view that was endorsed by attorney general KK Venugopal in his submissions to the apex court. The SC’s latest order can be a start.

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