APARNA BHAT & ORS. versus STATE OF MADHYA PRADESH & ANR.
[2021] 4 S.C.R. 479, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Body
A
B
C
D
E
F
G
H
479
   [2021] 4 S.C.R. 479
479
APARNA BHAT & ORS.
v.
STATE OF MADHYA PRADESH & ANR.
(Criminal Appeal No. 329 of 2021)
MARCH 18, 2021
[A. M. KHANWILKAR AND S. RAVINDRA BHAT, JJ.]
Bail condition – Accused guilty of sexual offence – Rakhi
tying as a condition for bail, propriety – Imposing conditions that
implicitly tend to condone or diminish the harm caused by the
accused and have the effect of potentially exposing the survivor to
secondary trauma is forbidden – The law does not permit or
countenance such conduct, where the survivor can potentially be
traumatized many times over or be led into some kind of non-
voluntary acceptance, or be compelled by the circumstances to
accept and condone behavior what is a serious offence – Using
rakhi tying as a condition for bail, transforms a molester into a
brother, by a judicial mandate – This is wholly unacceptable, and
has the effect of diluting and eroding the offence of sexual
harassment – The act perpetrated on the survivor constitutes an
offence in law, and is not a minor transgression that can be remedied
by way of an apology, rendering community service, tying a rakhi
or presenting a gift to the survivor, or even promising to marry her,
as the case may be – The law criminalizes outraging the modesty of
a woman – Granting bail, subject to such conditions, renders the
court susceptible to the charge of re-negotiating and mediating
justice between confronting parties in a criminal offence and
perpetuating gender
stereotypes – Crime against women – Gender
violence.
Crime against women: Sexual offences – Role of the courts
and law enforcement agencies as neutral authorities, under a duty
to ensure fairness – 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
A
B
C
D
E
F
G
H
480
SUPREME COURT REPORTS
[2021] 4 S.C.R.
compromise as it is beyond their powers and jurisdiction – Sensitivity
should be displayed at all times by judges, who should ensure that
there is no traumatization of the prosecutrix, during the proceedings
– Judicial restraint.
Judicial stereotyping: Concept of – It is a common and
pernicious barrier to justice, particularly for women victims and
survivors of violence – Such stereotyping causes judges to reach a
view about cases based on preconceived beliefs, rather than relevant
facts and actual enquiry – ‘Judicial stereotyping’ refers to the
practice of judges ascribing to an individual specific attributes,
characteristics or roles by reason only of her or his membership in
a particular social group (e.g. women) – It is used, also, to refer to
the practice of judges perpetuating harmful stereotypes through
their failure to challenge them, for example by lower courts or parties
to legal proceedings – Stereotyping excludes any individualized
consideration of, or investigation into, a person’s actual
circumstances and their needs or abilities.
Administration of justice: Role of the courts – Judges can
play a significant role in ridding the justice system of harmful
stereotypes – They have an important responsibility to base their
decisions on law and facts in evidence, and not engage in gender
stereotyping – This requires judges to identify gender stereotyping,
and identify how the application, enforcement or
perpetuation of
these stereotypes discriminates against women or denies them equal
access to justice – Stereotyping might compromise the impartiality
of a judge’s decision and affect his or her views about witness
credibility or the culpability of the accused person – The stereotype
of the ideal sexual assault victim disqualifies several accounts of
lived experiences of sexual assault – Rape myths undermine the
credibility of those women who are seen to deviate too far from
stereotyped notions of chastity, resistance to rape, having visible
physical injuries, behaving a certain way, reporting the offence
immediately, etc. – Judicial stereotyping – Judicial Bias.
Disposing of the appeal, the Court
HELD : 1. Women often experience obstacles in gaining
access to mechanisms of redress, including legal aid, counselling
services and shelters. They are re-victimized and exposed to
A
B
C
D
E
F
G
H
481
further risk of violence through the denial of redress in the
context of informal trials or negotiations between families and
community leaders. The payment of financial compensation by
the perpetrator or his family for acts of violence against women,
in lieu of legal remedies, was a recurrent concern vis-à-vis the
formal and informal justice systems. Violence against women in
India is systematic and occurs in the public and private spheres.
It is underpinned by the persistence of patriarchal social norms
and inter- and intra-gender hierarchies. Women are discriminated
against and subordinated not only on the basis of sex, but on
other grounds too, such as caste, class, ability, sexual orientation,
tradition and other realities. [Para 20][497-A-D]
2. Gender violence is most often unseen and is shrouded
in a culture of silence. The causes and factors of violence against
women include entrenched unequal power equations between men
and women that foster violence and its acceptability, aggravated
by cultural and social norms, economic dependence, poverty and
alcohol consumption, etc. In India, the culprits are often known
to the woman; the social and economic “costs” of reporting such
crimes are high. General economic dependence on family and
fear of social ostracization act as significant disincentives for
women to report any kind of sexual violence, abuse or abhorrent
behaviour. Therefore, the actual incidence of violence against
women in India is probably
much higher than the data suggests,
and women may continue to face hostility and have to remain in
environments where they are subject to violence. This silence
needs to be broken. In doing so, men, perhaps more than women
have a duty and role to play in averting and combating violence
against women. [Para 21][497-D-F]
3. Unlike many other victims of interpersonal crimes such
as theft, robbery or muggings, survivors of sexual assault are
vulnerable to being blamed for their attack, and thus victim-
blaming (overtly or in more subtle forms) in sexual assault cases
has been the focus of several writings. Myths and stereotypes
“underlie and fuel sexual violence against women and inform
negative societal reactions”. Joanne Conaghan points out
pertinently that “removing the doctrinal debris of a legally instituted
gendered hierarchical order does not necessarily get rid of deeply
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR.
A
B
C
D
E
F
G
H
482
SUPREME COURT REPORTS
[2021] 4 S.C.R.
ingrained social and cultural attitudes which law has long endorsed
and which continue to infuse the criminal justice process, albeit in
more covert, less accessible forms.” [Para 22][497-F-H; 498-A-B]
4. Sexual violence is varied in degree. At the highest (or,
rather most aggravated) level, is rape with or without attendant
violence. However, there are a substantial number of incidents
which fall within the rubric of sexual violence, that amount to
offences under various penal enactments. These outlaw
behaviours such as stalking, eve-teasing, shades of verbal and
physical assault, and harassment. Social attitudes typically
characterize this latter category of crimes as “minor” offences.
Such “minor” crimes are, regrettably not only trivialised or
normalized, rather they are even romanticized and therefore,
invigorated in popular lore such as cinema. These attitudes –
which indulgently view the crime through prisms such as “boys
will be boys” and condone them, nevertheless have a lasting and
pernicious effect on the survivors. [Para 23][498-C-E]
5. The United Nations Organisation has defined “violence
against women” as “any act of gender based violence that results
in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or private
life. The effect of offensive behaviour against
women, which laws
criminalize- physical, verbal, or other acts which threaten or give
them acute discomfort, undermining their dignity, self-worth and
respect, is to silence or subdue the survivor. [Para 24][498-E-F;
499-A]
6. Empirically, the statistics regarding certain kinds of
crimes against women have not shown any significant decline. In
states and union territories, 32033 rape cases (under Section
376 IPC) were registered in 2019; 4038 cases of attempt to rape
were registered the same year (under Section 376 read with
Section 511, IPC). As many as 88,387 cases under Section 354
IPC were registered the same year, whereas 6939 cases were
registered under Section 509 (outraging the modesty of a woman)
in 2019. In all, a total of 4, 05,861 crimes against women were
reported in 2019 (as against 359849 in 2017 and 378236 in 2018).
The statistic for a relatively new species of offensive activities,
cybercrimes that are women-centric, such as Transmitting of
A
B
C
D
E
F
G
H
483
Sexually Explicit Material (Sec. 67A/67B, Information Technology
Act), Blackmailing Defamation/Morphing/creating Fake Profile
etc) registered in 2019, were 1645. POCSO offences, where
girl children were victims, reported in 2019 were 46,005.
[Para 30][501-F-H; 502-A-B]
The role of the courts and law enforcement agencies as neutral
authorities, under a duty to ensure fairness
7. The role of all courts is to make sure that the survivor
can rely on their impartiality and neutrality, at every stage in a
criminal proceeding, where she is the survivor and an aggrieved
party. Even an indirect undermining of this responsibility cast
upon the court, by permitting discursive formations on behalf of
the accused, that seek to diminish his agency, or underplay his
role as an active participant (or perpetrator) of the crime, could
in many cases, shake the confidence of the rape survivor (or
accuser of the crime) in the impartiality of the court. The current
attitude regarding crimes against women typically is that “grave”
offences like rape are not tolerable and offenders must be
punished. This, however, only takes into consideration rape and
other serious forms of gender-based physical violence. The
challenges Indian women face are formidable: they include a
misogynistic society with entrenched cultural values and beliefs,
bias (often sub-conscious) about the stereotypical role of women,
social and political structures that are heavily male-centric, most
often legal
enforcement structures that either cannot cope with,
or are unwilling to take strict and timely measures. Therefore,
reinforcement of this stereotype, in court utterances or orders,
through considerations which are extraneous to the case, would
impact fairness. [Para 31][502-B-F]
8. Using rakhi tying as a condition for bail, transforms a
molester into a brother, by a judicial mandate. This is wholly
unacceptable, and has the effect of diluting and eroding the offence
of sexual harassment. The act perpetrated on the survivor
constitutes an offence in law, and is not a minor transgression
that can be remedied by way of an apology, rendering community
service, tying a rakhi or presenting a gift to the survivor, or even
promising to marry her, as the case may be. The law criminalizes
outraging the modesty of a woman. Granting bail, subject to such
conditions, renders the court susceptible to the charge of re-
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR.
A
B
C
D
E
F
G
H
484
SUPREME COURT REPORTS
[2021] 4 S.C.R.
negotiating and mediating justice between confronting parties in
a criminal offence and perpetuating gender stereotypes.
[Para 33][503-A-C]
9.1 The Inter-American Commission on Human Rights has
noted that judicial stereotyping “is a common and pernicious
barrier to justice, particularly for women victims and survivors of
violence. Such stereotyping causes judges to reach a view about
cases based on preconceived beliefs, rather than relevant facts and
actual enquiry. Furthering of rape myths and stereotypes by the
judiciary, limits the emancipatory potential of the law. ‘Judicial
stereotyping’ refers to the practice of judges ascribing to an
individual specific attributes, characteristics or roles by reason
only of her or his membership in a particular social group (e.g.
women). It is used, also, to refer to the practice of judges
perpetuating harmful stereotypes through their failure
to challenge them, for example by lower courts or parties to
legal proceedings. Stereotyping excludes any individualized
consideration of, or investigation into, a person’s actual
circumstances and their needs or abilities. [Paras 34, 35]
[503-C-F]
V.K. v. Bulgari Communication No. 20/2008, UN Doc.
CEDAW/C/49/D/20/2008 (2011) (CEDAW) – referred
to.
9.2 Judges can play a significant role in ridding the justice
system of harmful stereotypes. They have an important
responsibility to base their decisions on law and facts in evidence,
and not
engage in gender stereotyping. This requires judges to
identify gender stereotyping, and identify how the application,
enforcement or perpetuation of these stereotypes discriminates
against women or denies them equal access to justice.
Stereotyping might compromise the impartiality of a judge’s
decision and affect his or her views about witness credibility or
the culpability of the accused person. The stereotype of the ideal
sexual assault victim disqualifies several accounts of lived
experiences of sexual assault. Rape myths undermine the
credibility of those women who are seen to deviate too far from
stereotyped notions of chastity, resistance to rape, having visible
physical injuries, behaving a certain way, reporting the offence
immediately, etc. [Paras 38, 39][504-C-E; 505-A-B]
A
B
C
D
E
F
G
H
485
State of Punjab v. Gurmit Singh (1996) 2 SCC 384
: [1996] 1  SCR  532  - relied on.
R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L’Heureux-
Dubé & Gonthier JJ, dissenting in part) (Canada,
Supreme Court) – referred to.
10. The use of reasoning/language which diminishes the
offence and tends to trivialize the survivor, is especially to be
avoided under all circumstances. Thus, the following conduct,
actions or situations are hereby deemed irrelevant, e.g. - to say
that the survivor had in the past consented to such or similar
acts or that she behaved promiscuously, or by her acts or clothing,
provoked the alleged action of the accused, that she behaved in
a manner unbecoming of chaste or “Indian” women, or that she
had called upon the situation by her behavior, etc. These instances
are only illustrations of an attitude which should never enter
judicial verdicts or orders or be considered relevant while making
a judicial decision; they cannot be reasons for granting bail or
other such relief. Similarly, imposing conditions that implicitly
tend to condone or diminish the harm caused by the accused and
have the effect of potentially exposing the survivor to secondary
trauma, such as mandating mediation processes in non-
compoundable offences, mandating as part of bail conditions,
community service (in a manner of speaking with the so-called
reformative approach towards the perpetrator of sexual offence)
or requiring tendering of apology once or repeatedly, or in
any
manner getting or being in touch with the survivor, is especially
forbidden. The law does not permit or countenance such conduct,
where the survivor can potentially be traumatized many times
over or be led into some kind of non-voluntary acceptance, or be
compelled by the circumstances to accept and condone behavior
what is a serious offence. [Para 42][506-G; 507-A-E]
11. The instances spelt out in the present judgment are
only illustrations; the idea is that the greatest extent of sensitivity
is to be displayed in the judicial approach, language and reasoning
adopted by the judge. Even a solitary instance of such order or
utterance in court, reflects adversely on the entire judicial system
of the country, undermining the guarantee to fair justice to all,
and especially to victims of sexual violence (of any kind from the
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR.
A
B
C
D
E
F
G
H
486
SUPREME COURT REPORTS
[2021] 4 S.C.R.
most aggravated to the so-called minor offences). [Para 43]
[507-E-F]
12. 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; 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; 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;
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; 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; 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 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.
[Para 44][507-G-H; 508-A-F]
13. Courts should also desist from expressing any
stereotype opinion, in words spoken during proceedings, or in
the course of a judicial order, to the effect that (i) women are
physically weak and need protection; (ii) women are incapable of
or cannot take decisions on their own; (iii) men are the “head” of
the household and should take all the decisions relating to family;
A
B
C
D
E
F
G
H
487
(iv) women should be submissive and obedient according to our
culture; (v) “good” women are sexually chaste; (vi) motherhood
is the duty and role of every woman, and assumptions to the effect
that she wants to be a mother; (vii) women should be the ones in
charge of their children, their upbringing and care; (viii) being
alone at night or wearing certain clothes make women responsible
for being attacked; (ix) a woman consuming alcohol, smoking,
etc. may justify unwelcome advances by men or “has asked for
it”; (x) women are emotional and often overreact or dramatize
events, hence it is necessary to corroborate their testimony; (xi)
testimonial evidence provided by women who are sexually active
may be suspected when assessing “consent” in sexual offence
cases; and (xii) lack of evidence of physical harm in sexual offence
case leads to an inference of consent by the woman. [Para 45]
[508-F-H; 509-A-C]
14. 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. [Para 46][509-C-E]
15. The National Judicial Academy is hereby requested to
devise, speedily, the necessary inputs which have to be made
part of the training of young judges, as well as form part of judges’
continuing education with respect to gender sensitization, with
adequate awareness programs regarding stereotyping and
unconscious biases that can creep into judicial reasoning. The
syllabi and content of such courses shall be framed after
necessary consultation with sociologists and teachers in
psychology, gender studies or other relevant fields, preferably
within three months. The course should emphasize upon the
relevant factors to be considered, and importantly, what should
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR.
A
B
C
D
E
F
G
H
488
SUPREME COURT REPORTS
[2021] 4 S.C.R.
be avoided during court hearings and never enter judicial
reasoning. Public Prosecutors and Standing Counsel too should
undergo mandatory training in this regard. The training program,
its content and duration shall be developed by the National Judicial
Academy, in consultation with State academies. The course should
contain topics such as appropriate court-examination and conduct
and what is to be avoided. Likewise, the Bar Council of India
(BCI) should also consult subject experts and circulate a paper
for discussion with law faculties and colleges/universities in regard
to courses that should be taught at the undergraduate level, in
the LL.B program. The BCI shall also require topics on sexual
offences and gender sensitization to be mandatorily included in
the syllabus for the All India Bar Examination. Each High Court
should, with the help of relevant experts, formulate a module on
judicial sensitivity to sexual offences, to be tested in the Judicial
Services Examination. [Paras 47, 48, 50][509-E-H; 510-A-B, C]
16. In the light of the above, the bail conditions in the
impugned judgment, are set aside, and expunged from the record.
[Para 51][510-C-D]
Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC
74; Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC
570 : [2013] 10 SCR 125; State of M.P v. Madanlal
(2015) 7 SCC 681: [2015] 7 SCR 998; Ramphal v. State
of Haryana Crl. A.No. 438 of 2011 decided on
27.11.2019;
Munish Bhasin v. State (2009) 4 SCC 45 :
[2009] 2 SCR 806; Parvez Noordin Lokhandwalla v.
State of Maharashtra (2020) 10 SCC 77; Sakshi v. State
(2004) 5 SCC 518: [2004] 2 Suppl. SCR 723 – referred
to.
Case Law Reference
(2018) 16 SCC 74
referred to
Para 5
[2013] 10 SCR 125 
referred to
Para 5
[2009] 2 SCR 806  
referred to
Para 12
(2020) 10 SCC 77
referred to
Para 12
[1996] 1 SCR 532 
relied on.
Para 16
A
B
C
D
E
F
G
H
489
[2004] 2 Suppl. SCR 723 
referred to
Para 16
[2015] 7 SCR 998  
referred to
Para 28
[1996] 1 SCR  532 
referred to
Para 41
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 329 of 2021.
From the Judgment and Order dated 30.07.2020 of the High Court
of Madhya Pradesh at Indore in MCRC No. 23350 of 2020.
K K Venugopal, AG., Sanjay Parikh, Sr. Adv., Pukhrambam
Ramesh Kumar, Ms. Karishma Maria, Satwik Parikh, B V Balaram
Das, Ms. Suhashini Sen, Vinam Gupta, Advs. for the appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
A woman cannot be herself in the society of the present day,
which is an exclusively masculine society, with laws framed by men
and with a judicial system that judges feminine conduct from a
masculine point of view.” 
        – Henrik Ibsen
1. Leave granted. The appellants are public-spirited individuals,
concerned about the adverse precedent set by the imposition of certain
bail conditions in a case involving a sexual offence against a woman;
they impugn a part of the judgment of the Madhya Pradesh High Court1
that imposed these bail conditions. With the consent of counsel for the
parties, the appeal was heard finally. The appellants also filed an
application2, seeking directions that all the High Courts and trial Courts
be directed to refrain from making observations and imposing conditions
in rape and sexual assault cases, at any stage of judicial proceedings,
that trivialize the trauma undergone by
survivors and adversely affect
their dignity. Certain intervenors also preferred an application in support
of the appeal, seeking clear directions to all Courts to refrain from
imposing “irrelevant, freaky or illegal bail conditions”.
2. Ibsen, the prescient nineteenth century author, made a powerful
statement (quoted as the epigram at the beginning of this judgment);
1 In Vikram v. The State of Madhya Pradesh in MCRC 23350/ 2020, dated 30.7.2020
2 Crl. M.P No. 102226/2020
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR.
A
B
C
D
E
F
G
H
490
SUPREME COURT REPORTS
[2021] 4 S.C.R.
sadly, even today, in the twenty first century, after 70 years as a republic
with the goal of equality for all, many courts seem to be oblivious of the
problem. In a sense, this judgment is not as much about only the merits
of the impugned conditions of the bail order, but is meant to address a
wider canvas of (what appears to be) entrenched paternalistic and
misogynistic attitudes that are regrettably reflected at times in judicial
orders and judgments.
3. The brief facts of the case are that on 20.04.2020 at about 2.30
a.m., the accused-applicant, a neighbour of the complainant, entered her
house and caught hold of the complainant’s hand, and allegedly attempted
to harass her sexually. Accordingly, Crime No. 133/2020 was registered
at Police Station, Bhatpachlana, District-Ujjain for the offences punishable
under sections 452, 354A3, 323 and 506 of the Indian Penal Code (IPC).
The case was investigated and a charge sheet was filed. The accused
filed an application under Section 438 of Code of Criminal Procedure,
1973 (hereafter “CrPC”) seeking pre-arrest bail. The High Court, by
the impugned order, even while granting bail to the applicant imposed
the following condition which is under challenge in this petition.
(i) “The applicant along with his wife shall visit the house of
the complainant with Rakhi thread/ band on 3rd August, 2020
at 11:00 a.m. with a box of sweets and request the complainant
-Sarda Bai to tie
the Rakhi band to him with the promise to
protect her to the best of his ability for all times to come. He
shall also tender Rs. 11,000/- to the complainant as a
customary ritual usually offered by the brothers to sisters on
such occasion and shall also seek her blessings. The applicant
3 Section 354A reads as follows:
“354A. Sexual harassment and punishment for sexual harassment.—
(1) A man committing any of the following acts—
(i) physical contact and advances involving unwelcome and explicit sexual
overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual
harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or
clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1)
shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.”
A
B
C
D
E
F
G
H
491
shall also tender Rs. 5,000/- to the son of the complainant –
Vishal for purchase of clothes and sweets. The applicant shall
obtain photographs and receipts of payment made to the
complainant and her son, and the same shall be filed through
the counsel for placing the same on record of this case before
this Registry. The aforesaid deposit of amount shall not
influence the pending trial, but is only for enlargement of the
applicant on bail.”
4. The appellants submit that the expressions “in the interest of
justice”, “such other conditions court considers necessary” and “as
it may think fit” as provided in the bare text of the Section 437(3)(c) as
well as Section 438(2)(iv) of the CrPC, give discretion to the Courts to
impose such other conditions as may be required in the facts of a particular
case, but those conditions have to be in consonance with the other
conditions in the provisions, the purpose of granting bail and no other
consideration.
5. The appellants cite Kunal Kumar Tiwari v. State of Bihar4
and Sumit Mehta v. State (NCT of Delhi)5 and argue that this court’s
observations in those decisions must be followed by every court while
considering and dealing with bail applications. They also rely on the
observations made in para 18 of State of M.P v. Madanlal,6 and urge
that in cases of sexual offences, the idea of compromise, especially in
the form of marriage between the accused and the prosecutrix is abhorrent,
and should not be considered a
judicial remedy, as it would be antithetical
to the woman’s honour and dignity. Likewise, reliance was placed on
Ramphal v. State of Haryana7, where the court took note of the
compromise between the survivor and accused, but found that such
compromise is of no relevance when deciding on cases of rape and
sexual assault.
6. The appellants brought to the notice of this Court, various
decisions and orders where the observations made by the judges in
offences against women including cases under the Protection of Children
from Sexual Offences Act, 2012 (POCSO) were extraneous. The
appellants submitted that the courts, in many cases, especially under the
4 (2018) 16 SCC 74
5 (2013) 15 SCC 570
6 (2015) 7 SCC 681
7 Crl. A. No. 438/2011decided on 27.11.2019
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
492
SUPREME COURT REPORTS
[2021] 4 S.C.R.
POCSO Act, granted bail on the plea that an agreement to marry had
been reached between the accused and prosecutrix. Additionally, they
also submitted that while adjudicating matters of sexual harassment and
rape, judges have made shocking remarks on the character of the
prosecutrix.
7. Reference is made to Ravi Jatav v. State of M.P8, where the
High Court of Madhya Pradesh, while granting bail (to an accused of
committing offences under Sections 376-D, 366, 506, 34 IPC) imposed
conditions that the accused “shall register himself as a Covid-19
Warrior” and was to be assigned work of Covid-19 disaster management
at the discretion of the District Magistrate. In Rakesh B. v. State of
Karnataka9, the Karnataka High Court granted bail to an accused alleged
to have committed offences under Sections 376, 420, 506 IPC and Section
66-B of the Information Technology Act, 2000 (“IT Act”), and made
remarks on the survivor’s conduct. The relevant extract is produced
below:
“c) nothing is mentioned by the complainant as to why she
went to her office at night, that is, at 11 PM; she has also not
objected to consuming drinks with the petitioner and allowing
him to stay with her till morning; the explanation offered by
the complainant that after the perpetration of the act she was
tired and fell asleep, is unbecoming of an Indian woman; that
is not the way our women react when they are ravished;”
8. The appellants submit that no
observation/condition should be
made in any judgment, or orders which reflects bias of the judge or
affects the dignity of a woman or affects the conduct of the trial in a fair
and unbiased manner. They highlight that the impugned order, while
granting bail, imposed a condition that the applicant shall visit the house
of the complainant. The appellants submit that this is unacceptable and
no observation/condition should be made which permits the accused to
meet/have access to the survivor and her family members.
9. The appellants also cite Mohan v. State10, where the Madras
High Court had referred the case of rape of a minor to mediation and
observed that the case was fit for attempting a compromise between
8 MCRC No. 13734/2020 order dated 19.05.2020 passed by Madhya Pradesh High
Court.
9 Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka.
10 M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015
A
B
C
D
E
F
G
H
493
the parties. Likewise, Samuvel v. Inspector of Police11 is cited, where
the High Court of Madras referred to mediation, a case of rape where
the prosecutrix was a minor and had become a mother of a child as a
consequence of rape, because the accused agreed to marry her. It is
urged that no observation/condition should be made which initiates or
encourages compromise that disparages and downgrades an otherwise
heinous crime thus indicating that such offences are remediable by way
of a compromise/ by marriage.
10. Sopikul Sk. @ Safikul Islam v. State,12 an order of the High
Court of Calcutta in a POCSO case granting bail is cited; here, relief
was given to the accused since the prosecutrix had attained majority
and the accused intended to marry her. Further, in the case of
Gyanaranjan Behera v. State of Odisha,13 the Orissa High Court in a
POCSO case granted interim bail to the accused for the purpose of
marrying the prosecutrix. In Suraj Kushwah v. State of M.P,14 the Madhya
Pradesh High Court granted temporary bail to the accused for a crime
under sections 376 (2)(n), 506 IPC read with Sections 3(1) (W-II), 3(2)(V),
3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 for the
purpose of solemnizing marriage with the prosecutrix. The appellants
submit that in POCSO and rape cases, no observation/condition should
be made, which takes note of the fact that the survivor has attained
majority and that the accused has offered to marry her.
11. Vikas Garg
v. State of Haryana15, by the High Court of
Punjab is cited, where the court granted bail to three persons accused of
committing offences under Sections 376D, 376(2)(n), 376, 292, 120-B,
506 IPC and Section 67 of the IT Act, and made observations regarding
the prosecutrix’s “casual relationships”,”promiscuous attitude”,
“voyeuristic mind”, etc. The appellants submit that no observation/
condition should be made which grants bail on the ground that the victim
is of “loose character” or is “habituated to sexual intercourse.”
12. Counsel for the Intervenors submitted that under sections
437(2) and 438, the power to impose conditions have been expressed in
11 Crl. O.P. No. 1881/2015.
12 CRM No. 2961/2020 Order dated 16.04.2020 of the Calcutta High Court
13 BLAPL No. 2596/2020 Order dated 02.06.2020, passed by Orissa High Court.
14 CRA No. 3353/2020 Order dated 02.09.2020 passed by the Madhya Pradesh High
Court
15 Cr. M. No. 23962/2017, order dated 13.09.2017 passed by the Punjab and Haryana
High Court
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
494
SUPREME COURT REPORTS
[2021] 4 S.C.R.
very wide terms by using the phrase “any condition.” Recently, High
Courts while granting bail under these sections have started imposing
irrelevant conditions. The Intervenors have annexed around twenty-three
orders in which such conditions for bail were imposed. They argue that
the conditions that can be imposed under the law are clearly laid down
by the Supreme Court in the case of Munish Bhasin v. State16 and
reiterated in Parvez Noordin Lokhandwalla v. State of Maharashtra.17
Accordingly, it is clear that imposing conditions like rendering community
service in COVID hospitals or in any other institution, plantation of trees,
contributing to any particular charity relief fund, etc. is impermissible in
law. The Intervenors further submit that the accused, during pendency
of the trial are presumed innocent and their guilt is as yet to be adjudicated
by the Court. Imposition of conditions like compulsive community service,
etc. is violative of the right to equality and personal liberty, including
procedure established by law in the Indian Constitution.
13. The Intervenors also submit that the Court while deciding a
bail application, cannot assume the role of a social reformer or fund
raiser for charities and impose conditions which have no nexus with the
offense or relevance with the object of the bail provisions.
14. It was submitted that in IA No. 102226/2020, the appellants
have brought to the notice of this
Court, several other instances in which
similar directions have been made by High Courts and Trial Courts across
the country. Such wide prevalence necessitates the urgent intervention
of this Court to firstly, declare that such remarks are unacceptable and
have the potential to cause grave harm to the prosecutrix and the society
at large, secondly, reiterate that judicial orders have to conform to certain
judicial standards, and thirdly, take necessary steps to ensure that this
does not happen in the future.
15. It was further submitted that this Court should intervene and
issue directions or guidelines on bail and anticipatory bail to ensure that
courts impose only those conditions as are permissible in law. Further,
this Court was urged to issue directions on gender sensitization of the
bar and the bench, particularly with regard to judicial empathy for the
prosecutrix.
16. The learned Attorney General, who had been issued notice in
this matter, made his submissions in support of the appeal; he also filed a
16 (2009) 4 SCC 45
17 (2020) 10 SCC 77
A
B
C
D
E
F
G
H
495
detailed note suggesting the steps that should be taken to sensitize all
stakeholders, especially courts, while dealing with offences against
women. Highlighting the observations made in Kunal Kumar(supra),
Sumit Mehta (supra), State of Punjab v. Gurmit Singh18 and Sakshi
v. State19, the learned Attorney General submitted that while relying
upon the observations made in the above-mentioned cases, the court
may highlight that in cases of crimes against women, the following
additional considerations may be kept in mind:
i.
Bail conditions should not mandate or even permit contact
between the accused and the victim.
ii.
Bail conditions must seek to protect the complainant from
any harassment by the accused.
iii.
Where considered necessary, the complainant/prosecutrix
may be heard on whether there is any peculiar circumstance
which may require additional conditions for her protection.
iv.
Wherever bail is granted, the complainant may immediately
be informed that the accused has been granted bail.
v.
Bail conditions must be free from stereotypical or patriarchal
notions on women and their place in society, and must strictly
be in accordance with the requirements of the CrPC.
vi.
The Courts while adjudicating a case, should not suggest or
entertain any notions (or encourage any step) towards
compromises between the prosecutrix and the accused to
get married, as it is beyond their powers and jurisdiction.
17. On gender equality and gender sensitization, the
Attorney
General argued that to achieve the goal of gender justice, it is imperative
that judicial officers, judges, and members of the bar are made aware of
gender prejudices that hinder justice. Accordingly, he submitted that the
foremost aspect to facilitate a gender sensitive approach, is to train judges
to exercise their discretion and avoid the use of gender-based stereotypes
while deciding cases pertaining to sexual offences. Secondly, judges
should have sensitivity to the concerns of the survivor of sexual offences.
18. Reliance was placed on the Bangkok General Guidance for
Judges on Applying a Gender Perspective in South East Asia, by the
18 (1996) 2 SCC 384
19 (2004) 5 SCC 518
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
496
SUPREME COURT REPORTS
[2021] 4 S.C.R.
International Commission of Jurists. It was pointed out that the following
stereotypes are often encountered in the course of judicial decision-
making and should be avoided: -
i.
Women are physically weak;
ii.
Women cannot make decisions on their own;
iii.
Men are the head of the household and must make all the
decisions related to family;
iv.
Women should be submissive and obedient;
v.
Good women are sexually chaste;
vi.
Every woman wants to be a mother;
vii.
Women should be the ones in charge of their children;
viii.
Being alone at night or wearing certain clothes make women
responsible for being attacked;
ix.
Women are emotional and often overreact or dramatize
hence it is necessary to corroborate their testimony;
x.
Testimonial evidence provided by women who are sexually
active may be suspected when assessing “consent” in sexual
offence cases; and
xi.
Lack of evidence of physical harm in sexual offense case
means consent was given.
19. The Attorney General submitted that training for gender
sensitization for judges at all levels of the judiciary should mandatorily be
conducted at regular intervals by the National Judicial Academy and
State Judicial Academies. He emphasized that any directions towards
gender sensitization should include judges of all levels of the judiciary.
Further, the counsel urged that courses on gender sensitization should be
included in the curriculum of law schools, and the All-India Bar
Exam
should include questions on gender sensitization as well. In addition to
this, he recommended that a detailed curriculum may be prepared with
the help of subject matter experts by each High Court, to be a part of the
syllabus for the Judicial Services Exams and training for inducted judges.
A
B
C
D
E
F
G
H
497
Nature of the beast20: the problem
20. Women often experience obstacles in gaining access to
mechanisms of redress, including legal aid, counselling services and
shelters. They are re-victimized and exposed to further risk of violence
through the denial of redress in the context of informal trials or
negotiations between families and community leaders. The payment of
financial compensation by the perpetrator or his family for acts of violence
against women, in lieu of legal remedies, was a recurrent concern vis-à-
vis the formal and informal justice systems. Violence against women in
India is systematic and occurs in the public and private spheres. It is
underpinned by the persistence of patriarchal social norms and inter-
and intra-gender hierarchies. Women are discriminated against and
subordinated not only on the basis of sex, but on other grounds too, such
as caste, class, ability, sexual orientation, tradition and other realities.21
21. Gender violence is most often unseen and is shrouded in a
culture of silence. The causes and factors of violence against women
include entrenched unequal power equations between men and women
that foster violence and its acceptability, aggravated by cultural and social
norms, economic dependence, poverty and alcohol consumption, etc. In
India, the culprits are often known to the woman; the social and economic
“costs” of reporting such crimes are high. General economic dependence
on family and fear of social
ostracization act as significant disincentives
for women to report any kind of sexual violence, abuse or abhorrent
behaviour. Therefore, the actual incidence of violence against women in
India is probably much higher than the data suggests, and women may
continue to face hostility and have to remain in environments where
they are subject to violence. This silence needs to be broken. In doing
so, men, perhaps more than women have a duty and role to play in
averting and combating violence against women.
22. Unlike many other victims of interpersonal crimes such as
theft, robbery or muggings, survivors of sexual assault are vulnerable to
being blamed for their attack, and thus victim-blaming (overtly or in more
subtle forms) in sexual assault cases has been the focus of several
20 A phrase that means the traits inherent to a thing or situation, especially a negative or
difficult one (See  https://idioms.thefreedictionary.com/the+nature+of+the+beast )
21 Report of the Special Rapporteur on Violence against Women, its Causes and
Consequences, on her Mission to India (22 April to 1 May, 2013)  A/HRC/26/38/
Add.1 (accessible at www.ohchr.org› Documents)  A-HRC-26-38-Add1_en)
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
498
SUPREME COURT REPORTS
[2021] 4 S.C.R.
writings. Myths and stereotypes “underlie and fuel sexual violence
against women and inform negative societal reactions”.22 Joanne
Conaghan points out pertinently that “removing the doctrinal debris
of a legally instituted gendered hierarchical order does not
necessarily get rid of deeply ingrained social and cultural attitudes
which law has long endorsed and which continue to infuse the
criminal justice process, albeit in more covert, less accessible
forms.”23
23. Sexual violence is varied in degree. At the highest (or, rather
most aggravated) level, is rape with or without attendant violence.
However, there are a substantial number of incidents which fall within
the rubric of sexual violence, that amount to offences under various
penal enactments. These outlaw behaviours such as stalking, eve-teasing,
shades of verbal and physical assault, and harassment. Social attitudes
typically characterize this latter category of crimes as “minor” offences.
Such “minor” crimes are, regrettably not only trivialised or normalized,
rather they are even romanticized and therefore, invigorated in popular
lore such as cinema. These attitudes – which indulgently view the crime
through prisms such as “boys will be boys” and condone them,
nevertheless have a lasting and pernicious effect on the survivors.
24. The United Nations Organisation has defined “violence against
women” as “any act of gender based violence that results in, or is
likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or
private life.”24  The effect of offensive behaviour against women, which
22 Shannon Sampert“Let Me Tell You a Story: English-Canadian Newspapers and Sexual
Assault Myths” (2010) 22:2 Canadian Journal of Women and the Law 301 at 304; also
Janice Du Mont, and Deborah Parmis; “Judging Women: The Pernicious Effects of
Rape Mythology” (1999) 19:1-2 Canadian Woman Studies 102 at 102
23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113
24 The Declaration on the Elimination of Violence Against Women (also ‘DEVAW).
Articles 1 and 2 read as follows:
“Article One:
For the purposes of this Declaration, the term “violence against women” means
any act of gender-based violence that results in, or is likely to result in, physical, sexual
or psychological harm or suffering to women, including threats of such acts, coercion
or arbitrary deprivation of liberty, whether occurring in public or in private life.
Article Two:
Violence against women shall be understood to encompass, but not be limited to,
the following:
A
B
C
D
E
F
G
H
499
laws criminalize- physical, verbal, or other acts which threaten or give
them acute discomfort, undermining their dignity, self-worth and respect,
is to silence or subdue the survivor.
25. In The Standard of Social Justice as a Research Process25
two scholars of psychology made a strong indictment of the (contextually,
Canadian) criminal justice process:
“The more general indictment of the current criminal justice
process is that the law and legal doctrines concerning
sexual assault have acted as the principle [sic] systemic
mechanisms for invalidating the experiences of women and
children.  Given this state of affairs, the traditional view of
the legal system as neutral, objective and gender-blind is not
defensible. Since the system is ineffective in protecting the
rights of women and children, it is necessary to re-examine
the existing doctrines which reflect the cultural and social
limitations that have preserved dominant male interests at the
expense of women and children.” 
Previous rulings
26. In Kunal Kumar Tiwari v. State of Bihar (supra), this court
while dealing with Section 437(3)(c), Cr. PC (general conditions of bail)
observed as follows:
“9. There is no dispute that Sub-clause (c) of Section 437(3)
allows Courts to impose such conditions in the interest of
justice. We are aware that palpably such wordings are capable
of accepting broader meaning. But such conditions cannot
be arbitrary, fanciful or extend beyond the ends of the
provision.
The phrase ‘interest of justice’ as used under the
(a) Physical, sexual and psychological violence occurring in the family, including
battering, sexual abuse of female children in the household, dowry-related violence,
marital rape, female genital mutilation and  other traditional practices harmful to women,
non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and intimidation at work,
in educational institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the
State, wherever it occurs.”
25 (1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park at p. 100
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
500
SUPREME COURT REPORTS
[2021] 4 S.C.R.
Sub-clause (c) of Section 437(3) means “good administration
of justice” or “advancing the trial process” and inclusion of
broader meaning should be shunned because of purposive
interpretation.”
27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court,
with respect to the conditions that can be imposed validly under section
438(2) of the CrPC, observed that:
“11. While exercising power under Section 438 of the Code,
the Court is duty bound to strike a balance between the
individual’s right to personal freedom and the right of
investigation of the police. For the same, while granting relief
Under Section 438(1), appropriate conditions can be imposed
Under Section 438(2) so as to ensure an uninterrupted
investigation. The object of putting such conditions should
be to avoid the possibility of the person hampering the
investigation. Thus, any condition, which has no reference to
the fairness or propriety of the investigation or trial, cannot
be countenanced as permissible under the law. So, the
discretion of the Court while imposing conditions must be
exercised with utmost restraint.”
28. It was urged that the observations made in Kunal Kumar and
Sumit Mehta ought to be followed while imposing bail conditions. The
appellants relying upon the observations made in para 18 of State of
M.P v. Madanlal,26 submit that in cases of sexual offences, the concept
of compromise, especially in the form of marriage between the
accused
and the prosecutrix shall not be thought of, as any such attempt would
be offensive to the woman’s dignity.
“18. …We would like to clearly state that in a case of rape or
attempt of rape, the conception of compromise under no
circumstances can really be thought of. These are crimes
against the body of a woman which is her own temple. These
are offences which suffocate the breath of life and sully the
reputation. And reputation, needless to emphasise, is the
richest jewel one can conceive of in life. No one would allow
it to be extinguished. When a human frame is defiled, the
“purest treasure”, is lost. Dignity of a woman is a part of her
26 (2015) 7 SCC 681
A
B
C
D
E
F
G
H
501
non-perishable and immortal self and no one should ever think
of painting it in clay. There cannot be a compromise or
settlement as it would be against her honour which matters
the most. It is sacrosanct. Sometimes solace is given that the
perpetrator of the crime has acceded to enter into wedlock
with her which is nothing but putting pressure in an adroit
manner; and we say with emphasis that the Courts are to
remain absolutely away from this subterfuge to adopt a soft
approach to the case, for any kind of liberal approach has to
be put in the compartment of spectacular error. Or to put it
differently, it would be in the realm of a sanctuary of error.”
29. The decision in Ramphal v. State of Haryana27 by order dated
27.11.2019, took note of the compromise between the survivor and
accused persons but found that such compromise is of no relevance
when deciding on rape and cases of sexual assault.
“It is brought to our notice that during the pendency of the
appeals, both the appellants have paid Rs. 1.5 lakhs each in
favor of the prosecutrix and she has accepted the same
willingly for getting the matter compromised. However, it is
imperative to emphasize that we do not accept such compromise
in matters relating to the offence of rape and similar cases of
sexual assault. Hence, the aforesaid compromise is of no
relevance in deciding this matter. On merits, we do not find
any ground to interfere in as much as the evidence of the
prosecutrix is coupled with
the medical evidence which clearly
proves that the offence of rape has been committed. Therefore,
the Trial Court and the High Court have rightly convicted the
accused/appellants.”
30. Empirically, the statistics regarding certain kinds of crimes
against women have not shown any significant decline. In states and
union territories, 32033 rape cases (under Section 376 IPC) were
registered in 2019; 4038 cases of attempt to rape were registered the
same year (under Section 376 read with Section 511, IPC). As many as
88,387 cases under Section 354 IPC were registered the same year,
whereas 6939 cases were registered under Section 509 (outraging the
modesty of a woman) in 2019. In all, a total of 4, 05,861 crimes against
women were reported in 2019 (as against 359849 in 2017 and 378236 in
27 Crl. A. No. 438/2011
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
502
SUPREME COURT REPORTS
[2021] 4 S.C.R.
2018). The statistic for a relatively new species of offensive activities,
cybercrimes that are women-centric, such as Transmitting of Sexually
Explicit Material (Sec. 67A/67B, Information Technology Act),
Blackmailing Defamation/Morphing/creating Fake Profile etc) registered
in 2019, were 1645. POCSO offences, where girl children were victims,
reported in 2019 were 46,005.28
The role of the courts and law enforcement agencies as neutral
authorities, under a duty to ensure fairness
31. The role of all courts is to make sure that the survivor can rely
on their impartiality and neutrality, at every stage in a criminal proceeding,
where she is the survivor and an aggrieved party. Even an indirect
undermining of this responsibility cast upon the court, by permitting
discursive formations on behalf of the accused, that seek to diminish his
agency, or underplay his role as an active participant (or perpetrator) of
the crime, could in many cases, shake the confidence of the rape survivor
(or accuser of the crime) in the impartiality of the court. The current
attitude regarding crimes against women typically is that “grave” offences
like rape are not tolerable and offenders must be punished. This, however,
only takes into consideration rape and other serious forms of gender-
based physical violence. The challenges Indian women face are
formidable: they include a misogynistic society with entrenched cultural
values and
beliefs, bias (often sub-conscious) about the stereotypical
role of women, social and political structures that are heavily male-centric,
most often legal enforcement structures that either cannot cope with, or
are unwilling to take strict and timely measures. Therefore, reinforcement
of this stereotype, in court utterances or orders, through considerations
which are extraneous to the case, would impact fairness.
32. Academic writings highlight that a judgment at all levels has a
number of distinct audiences, each of which engages with it in a different
way. The parties to the case and their counsel will be interested in how
the judge resolves their specific dispute - what the law gives to or requires
of them. At the same time, in a legal system where judgments of courts
set precedents, and in particular within a common law system, judgments
have significance beyond their authoritative resolution of a specific
dispute—particularly in the Supreme Court. Thus, the judge is not only
communicating to the parties their rights and liabilities in the context of
the specific dispute being litigated; the judge is also addressing the
28 https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf
A
B
C
D
E
F
G
H
503
broader legal community—other lawyers, judges, legal academics,
law students—and indeed the public at large.29
33. Using rakhi tying as a condition for bail, transforms a molester
into a brother, by a judicial mandate. This is wholly unacceptable, and
has the effect of diluting and eroding the offence of sexual harassment.
The act perpetrated on the survivor constitutes an offence in law, and is
not a minor transgression that can be remedied by way of an apology,
rendering community service, tying a rakhi or presenting a gift to the
survivor, or even promising to marry her, as the case may be. The law
criminalizes outraging the modesty of a woman. Granting bail, subject to
such conditions, renders the court susceptible to the charge of re-
negotiating and mediating justice between confronting parties in a criminal
offence and perpetuating gender stereotypes.
34. The Inter-American Commission on Human Rights has noted
that judicial stereotyping “is a common and pernicious barrier to
justice, particularly for women victims and survivors of violence.
Such stereotyping causes judges to reach a view about cases based
on preconceived beliefs, rather than relevant facts and actual
enquiry.”30 Furthering of rape myths and stereotypes by the judiciary,
limits the emancipatory potential of the law.
35. ‘Judicial stereotyping’ refers to the practice of judges ascribing
to an individual specific attributes, characteristics or roles by reason
only of her or his
membership in a particular social group (e.g. women).
It is used, also, to refer to the practice of judges perpetuating harmful
stereotypes through their failure to challenge them, for example by lower
courts or parties to legal proceedings.31 Stereotyping excludes any
individualized consideration of, or investigation into, a person’s actual
circumstances and their needs or abilities.32
29 Erica Rackley,  The Art and Craft of Writing Judgements in Hunter, Rosemary and
McGlynn, Clare and Rackley, Erika, eds. FEMINIST JUDGMENTS : FROM THEORY TO PRACTICE,
Hart Publishing, Oxford.
30 Inter-American Commission on Human Rights,  Access to Justice for Women Victims
of Sexual Violence: Education and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; Simone
Cusack,  Eliminating Judicial Stereotyping, Paper submitted to the Office of the High
Commissioner for Human Rights (2014).
31 Simone Cusack,  Eliminating Judicial Stereotyping, Paper submitted to the Office of
the High Commissioner for Human Rights (2014), p. 2.
32 Supra, p. 17.
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
504
SUPREME COURT REPORTS
[2021] 4 S.C.R.
36. There have been notable rulings by the CEDAW33 Committee
in this regard. In V.K. v. Bulgaria34, the Committee observed that:
‘stereotyping affects women’s right to a fair trial and that the
judiciary must be careful not to create inflexible standards
based on preconceived notions of what constitutes domestic
or gender-based violence’.
37. In Karen Tayag Vertido v. The Philippines35, the CEDAW
Committee stressed that court should not create “inflexible standards”
of what women should be or have done, when confronted with a situation
of rape.
38. Judges can play a significant role in ridding the justice system
of harmful stereotypes. They have an important responsibility to base
their decisions on law and facts in evidence, and not engage in gender
stereotyping. This requires judges to identify gender stereotyping, and
identify how the application, enforcement or perpetuation of these
stereotypes discriminates against women or denies them equal access
to justice. Stereotyping might compromise the impartiality of a judge’s
decision and affect his or her views about witness credibility or the
culpability of the accused person.36As a judge of the Canadian Supreme
Court remarked:
“Myths and stereotypes are a form of bias because they impair
the individual judge’s ability to assess the facts in a particular
case in an open-minded fashion. In fact, judging based on
myths and stereotypes is entirely incompatible with
keeping
an open mind, because myths and stereotypes are based on
irrational predisposition and generalization, rather than
fact.”37
33 The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), was adopted in 1979 by the UN General Assembly; it is sometimes described
as an international bill of rights for women.
The CEDAW Committee is set up under Article 17 of CEDAW.
34 V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008
(2011) (CEDAW)
35 Karen Tayag Vertido v. The Philippines, Communication No. 18/2008, UN Doc.
CEDAW/C/46/D/18/2008 (2010) (CEDAW), para. 8.4.
36 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of
the High Commissioner for Human Rights (2014), p. 22.
37 The Honourable Madame Justice Claire L ’Heureux-Dubé,  ‘Beyond the Myths:
Equality, Impartiality, and Justice’ (2001) 10(1)  Journal of Social Distress and the
Homeless  87, 88.
A
B
C
D
E
F
G
H
505
39. The stereotype of the ideal sexual assault victim disqualifies
several accounts of lived experiences of sexual assault. Rape myths38
undermine the credibility of those women who are seen to deviate too
far from stereotyped notions of chastity, resistance to rape, having visible
physical injuries, behaving a certain way, reporting the offence
immediately, etc. In the words of the Supreme Court of Canada, in R v.
Seaboyer,39
“The woman who comes to the attention of the authorities
has her victimization measured against the current rape
mythologies, i.e., who she should be in order to be recognized
as having been, in the eyes of the law, raped; who her attacker
must be in order to be recognized, in the eyes of the law, as a
potential rapist; and how injured she must be in order to be
believed.”
40. The Bangalore Principles of Judicial Conduct, 2002, were from
a meeting of Chief Justices of Asian and African countries, and endorsed
by the UN Commission on Human Rights, the ECOSOC and the
Commission on Crime Prevention and Criminal Justice. The Bangalore
Principles provide that:
“2.4 A judge shall not knowingly, while a proceeding is before,
or could come before, the judge, make any comment that might
reasonably be expected to affect the outcome of such
proceeding or impair the manifest fairness of the process.
Nor shall the judge make any comment in public or otherwise
that might affect the fair trial of any person or issue.
********
5.1 A judge shall be
aware of, and understand, diversity in
society and differences arising from various sources, including
but not limited to race, colour, sex, religion, national origin,
caste, disability, age, marital status, sexual orientation, social
38 Explained in  R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case)  as opinions
improperly forming the background for considering evidentiary issues in sexual assault
trials. These include the false concepts that: women cannot be raped against their will;
only “bad girls” are raped; anyone not clearly of “good character” is more likely to have
consented.
39 R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L’Heureux-Dubé & Gonthier JJ, dissenting
in part) (Canada, Supreme Court).
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
506
SUPREME COURT REPORTS
[2021] 4 S.C.R.
and economic status and other like causes (“irrelevant
grounds”).
5.2 A judge shall not, in the performance of judicial duties,
by words or conduct, manifest bias or prejudice towards any
person or group on irrelevant grounds.”
41. This court held, in State of Punjab v. Gurmit Singh & Ors.40
that:
“The trial court not only erroneously disbelieved the
prosecutrix, but quite uncharitably and unjustifiably even
characterised her as a girl “of loose morals” or “such type
of a girl”. … We must express our strong disapproval of the
approach of the trial court and its casting a stigma on the
character of the prosecutrix. The observations lack sobriety
expected of a judge. … The courts are expected to use self-
restraint while recording such findings which have larger
repercussions so far as the future of the victim of the sex crime
is concerned and even wider implications on the society as a
whole – where the victim of crime is discouraged – the criminal
encouraged and in turn crime gets rewarded!’
*****
“Language is ‘a medium of social action’ not ‘merely a vehicle
of communication’ and the written judicial opinion is the
primary, if not the sole, medium in which judges within our
judicial system execute language.”41
*****
…the text of judicial decisions and opinions constitutes the
law by which our common law system abides and the basis on
which judges, lawyers, and citizens make reasoned legal
judgments about future
action.”42
42. This Court therefore holds that the use of reasoning/language
which diminishes the offence and tends to trivialize the survivor, is
40 State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384.
41 Rachael K. Hinkle et al., A Positive Theory and Empirical Analysis of Strategic Word
Choice in District Court Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012).
42 Ibid, at p. 409.
A
B
C
D
E
F
G
H
507
especially to be avoided under all circumstances. Thus, the following
conduct, actions or situations are hereby deemed irrelevant, e.g. - to say
that the survivor had in the past consented to such or similar acts or that
she behaved promiscuously, or by her acts or clothing, provoked the
alleged action of the accused, that she behaved in a manner unbecoming
of chaste or “Indian” women, or that she had called upon the situation
by her behavior, etc. These instances are only illustrations of an attitude
which should never enter judicial verdicts or orders or be considered
relevant while making a judicial decision; they cannot be reasons for
granting bail or other such relief. Similarly, imposing conditions that
implicitly tend to condone or diminish the harm caused by the accused
and have the effect of potentially exposing the survivor to secondary
trauma, such as mandating mediation processes in non-compoundable
offences, mandating as part of bail conditions, community service (in a
manner of speaking with the so-called reformative approach towards
the perpetrator of sexual offence) or requiring tendering of apology once
or repeatedly, or in any manner getting or being in touch with the survivor,
is especially forbidden. The law does not permit or countenance such
conduct, where the survivor can potentially be traumatized many times
over or be led into some kind of non-voluntary acceptance, or be
compelled by the circumstances to accept and condone
behavior what
is a serious offence.
43. The instances spelt out in the present judgment are only
illustrations; the idea is that the greatest extent of sensitivity is to be
displayed in the judicial approach, language and reasoning adopted by
the judge. Even a solitary instance of such order or utterance in court,
reflects adversely on the entire judicial system of the country, undermining
the guarantee to fair justice to all, and especially to victims of sexual
violence (of any kind from the most aggravated to the so-called minor
offences).
44. Having regard to the foregoing discussion, 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
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
508
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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.
45. Further, courts should desist from expressing any stereotype
opinion, in words spoken during proceedings, or in the course of a judicial
order, to the effect that (i) women are physically weak and need
protection; (ii) women are incapable of or cannot take decisions on their
own; (iii) men are the “head” of the household and should take all the
decisions relating to family; (iv) women should be submissive and obedient
according to our culture; (v) “good” women are sexually chaste; (vi)
motherhood is the duty and role of every woman, and assumptions to the
effect that she wants to be a mother; (vii) women should be the ones in
A
B
C
D
E
F
G
H
509
charge of their children, their upbringing and care; (viii) being alone at
night or wearing certain clothes make women responsible for being
attacked; (ix) a woman consuming alcohol, smoking, etc. may justify
unwelcome advances by men or “has asked for it”; (x) women are
emotional and often overreact or dramatize events, hence it is necessary
to corroborate their testimony; (xi) testimonial evidence provided by
women who are sexually active may be suspected when assessing
“consent” in sexual offence cases; and (xii) lack of evidence of physical
harm in sexual offence case leads to an inference of consent by the
woman.
46. 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.
47. The National Judicial Academy is hereby
requested to devise,
speedily, the necessary inputs which have to be made part of the training
of young judges, as well as form part of judges’ continuing education
with respect to gender sensitization, with adequate awareness programs
regarding stereotyping and unconscious biases that can creep into judicial
reasoning. The syllabi and content of such courses shall be framed after
necessary consultation with sociologists and teachers in psychology,
gender studies or other relevant fields, preferably within three months.
The course should emphasize upon the relevant factors to be considered,
and importantly, what should be avoided during court hearings and never
enter judicial reasoning. Public Prosecutors and Standing Counsel too
should undergo mandatory training in this regard. The training program,
its content and duration shall be developed by the National Judicial
Academy, in consultation with State academies. The course should
contain topics such as appropriate court-examination and conduct and
what is to be avoided.
APARNA BHAT & ORS. v. STATE OF MADHYA PRADESH
& ANR. [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
510
SUPREME COURT REPORTS
[2021] 4 S.C.R.
48. Likewise, the Bar Council of India (BCI) should also consult
subject experts and circulate a paper for discussion with law faculties
and colleges/universities in regard to courses that should be taught at the
undergraduate level, in the LL.B program. The BCI shall also require
topics on sexual offences and gender sensitization to be mandatorily
included in the syllabus for the All India Bar Examination.
49. Before parting, this Court expresses its gratitude for the
valuable suggestions and the assistance rendered by the learned Attorney
General pursuant to the notice issued. We also appreciate the submissions
made on behalf of the appellant(s) and the intervenor(s).
50. Each High Court should, with the help of relevant experts,
formulate a module on judicial sensitivity to sexual offences, to be tested
in the Judicial Services Examination.
51. In the light of the above, the bail conditions in the impugned
judgment, extracted at para 3 above, are set aside, and expunged from
the record.
52. Before concluding, it would be appropriate to quote certain
excerpts from the Canadian Commentaries on Judicial Conduct:43
“[T]he wisdom required of a judge is to recognize, consciously
allow for, and perhaps to question, all the baggage of past
attitudes and sympathies that fellow citizens are free to carry,
untested, to the grave.
True impartiality does not require that the judge have no
sympathies or opinions; it requires
that the judge nevertheless
be free to entertain and act upon different points of view with
an open mind.”
53. Judges play – at all levels – a vital role as teachers and thought
leaders. It is their role to be impartial in words and action, at all times. If
they falter, especially in gender related crimes, they imperil fairness and
inflict great cruelty in the casual blindness to the despair of the survivors.
54. The appeal is disposed of in the above terms; there shall be no
order on costs.
43 Les Éditions Yvon Blais Inc, 1991, quoted by Rt. Hon’ble Beverley Mclachlin,
former Chief Justice of Canada, in her Speech Judging in a Democratic State https://
www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx#fnb10
Devika Gujral
Appeal disposed of.