What are the Dos and Don’ts while granting Bail for Sexual Crimes?

The Supreme Court has issued guidelines that courts should follow while dealing with sexual crimes, setting aside the Madhya Pradesh High Court’s order in which a man accused of sexual assault was asked to get a “rakhi” tied on his wrist by the survivor as a condition of bail.

The Supreme Court said that all courts must ensure that the survivor/aggrieved woman can rely on the court’s impartiality and neutrality at every stage in a criminal proceeding. 

Guidelines while granting bail

While granting bail, courts must not impose conditions that tend to diminish the offence, trivialize the harm to the survivor or potentially expose her to secondary trauma. The Supreme Court laid down the following bail guidelines for sexual crimes: 

• Bail conditions should not require or permit contact between the accused and the survivor, and must try to protect the complainant from further harassment by the accused. 
• If there is a potential threat of harassment of the victim, the court must take appropriate steps to protect the victim after considering the police reports. 
• If the court grants bail to the accused, they must immediately inform this to the complainant and give them a copy of the bail order within two days. 
• Bail orders and conditions should not reflect stereotypical or patriarchal ideas about women and their place in society. The court should strictly follow the law on criminal procedure while granting bail. 
• Courts should not consider or discuss the survivor’s dress, behavior, past “conduct” or “morals” while deciding whether to grant bail.
• For gender related crimes, courts should not suggest or encourage compromises between the survivor and the accused, like marriage. They must not order compulsory mediation in such cases. 
• Judges must show sensitivity and ensure that the survivor is not traumatized during court proceedings.
• Judges should not use words that decrease the survivor’s confidence about the court’s fairness or impartiality. 

Recommendations regarding trainings and gender sensitization

The Supreme Court also ordered that:

• The Bar Council of India must compulsorily include topics on sexual offences and gender sensitization in the syllabus for the All India Bar Examination.
• High Courts should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, and test this in the Judicial Services Examination.
• A Judge’s training must include a module on gender sensitization, aimed at making judges more sensitive in hearing and deciding cases of sexual assault, and eliminating social bias, especially misogyny. 

Read more on sexual crimes in our explainer.