Judges must consider themselves in victim's shoes before their response: AG

Batting for gender sensitization, Attorney General K K Vengopal on Wednesday told the Supreme Court that judges needs to place themselves in the victim's shoes while conceptualizing their response to sexual offences as if the crime was committed upon a member of their own family.

He said that improving the representation of women in the judiciary could also go a long way towards a more balanced and empathetic approach in cases involving sexual violence.

Venugopal said that there has never been a female chief justice of India and Supreme Court of India has at present only two women judges as against a sanctioned strength of 34 judges and the figure is consistently low across the higher judiciary.

The top law officer suggested that only those bail conditions should be imposed by the court that are permissible and in line with the statutes and cannot be extraneous, onerous, fanciful, or alien to these considerations.

A bench of Justices AM Khanwilkar and S Ravindra Bhat, which reserved its verdict on the issue was told by Venugopal that Judges who are from the old school and are patriarchal needs to be sensitized and there was need for training of two to three years.

Venugopal gave his suggestion to the bench in an appeal filed by advocate Aparna Bhat against a Madhya Pradesh High Court order granting bail to an accused in a molestation case on the condition that he requests the alleged victim to tie a rakhi'.

He said that the top court can intervene and pass directions on two broad areas on guidelines including on bail and anticipatory bail, in line with already settled jurisprudential principles and gender sensitization of the bar and the bench.

Gender sensitization of the bar and the bench -- particularly with regard creating a sense of judicial empathy with the victim, with the judges placing themselves in the victims shoes, and secondly conceptualizing their response to the crime in terms of the same having been committed upon a member of their own family, Venugopal said in his written submission.

He said that to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar (including specifically public prosecutors), are aware themselves of stereotypes, bias, and other irrational tendencies that have to be shunned in the process of judicial adjudication.

Such understanding would help foster a judicial system that guarantees the right of women to equal access to fair and gender-sensitive court proceedings, mediation processes, adjudication and enforcement of judgments, he said.

He pointed that three aspects which are important to be born in mind to facilitate a more gender sensitive approach are to train judges to exercise their discretion by placing themselves in the shoes of the victim of sexual violence, assessing the crime as if the same had been committed on a member of their own family and avoiding the use of gender-based stereotypes while handling cases of sexual violence.

Venugopal referred to the Bangkok General Guidance for Judges on Applying a Gender Perspective in South East Asia which pointed out certain stereotypes that are often encountered in the course of judicial decision making and can be avoided.

He said that some of such stereotypes which can be avoided include--women should be submissive and obedient, good women are sexually chaste, being alone at night or wearing certain clothes make women responsible for being attacked and testimonial evidence provided by women who are sexually active may be suspect when assessing consent in sexual offense cases.

It must be borne in mind that any directions towards gender sensitization would have to include judges of all levels of the judiciary. This is because all judges come from the general public (either through examinations or the basis of collegium recommendations), and therefore may hold the same stereotypes/may exhibit the same biases as the rest of the population, he said in his 25-page written submission given to the court.

Advocating for training of judges at all levels of the judicial hierarchy in aspects of gender sensitization, Venugopal said that it can be conducted at regular intervals by the National Judicial Academy and the State Judicial Academies mandatorily.

He said that in addition to training on judgements relating to women and the law, training on biases, stereotypes, approaches to be taken and avoided, and the like may be included and a detailed curriculum may be prepared with the help of subject matter experts by each High Court.

Pointing out the gender imbalance, he said that as far as Senior Designation is concerned, there are only 17 women senior counsel designates in the Supreme Court, as opposed to 403 men, the Delhi High Court has 229 men and 8 women designates and similarly, in the Bombay High Court, there are 6 women and 157 men designates.

He suggested that to remedy this imbalance, this Court must direct collection of data to determine the number of women judges in the lower judiciary, tribunals and senior designates by all high courts and ensure greater representation of women at all levels of the judiciary.

This initiative must come from the Supreme Court itself, considering that the power of appointment rests almost exclusively with the Supreme Court Collegium. The goal must be to achieve at least 50% representation of women in all leadership positions, he said.