A recent order of the Kozhikode sessions-court has shed light on the need for greater and more pervasive gender sensitisation in the Indian judiciary. Considering an anticipatory bail case under Section 438 concerning civil activist called Civic Chandran accused of sexual harassment under Section 354A, Justice Krishna Kumar stated that the photographs produced by the accused reveal that the complainant “herself is exposing to dresses which are having some sexual provocative one’. This was offered as grounds for Section 354A failing to stand against the accused prima facie. He further opined that it was ‘impossible’ to believe that a 74-year-old disabled man could force the complainant in his lap and make sexual advances towards her by way of pressing her breast. These were the two reasons cited by the sessions-court judge which made this case ‘fit’ for the accused to be granted bail.
Such posturing by the court is not only harmful towards women but also deters their ability to have access to justice. The question raised in this case is not about whether the bail order should have been granted to Chandran but about the reasons and assumptions made by the judge in passing such an order, more specifically, his reasoning and facts considered before passing such an order.
The complainant had alleged that Chandran had sexually harassed her at a poetry camp at Kozhikode’s Nandi beach where he had caught her hands and asked her to lie on his lap after which he had pressed her breast and tried to outrage her modesty. Section 354A of the Indian Penal Code, 1860 reads that a man committing any of the acts which may involve physical contact and advances involving sexual overtures, or a demand for sexual favours, or making sexually coloured remarks shall be guilty of the offence of sexual harassment. Instead of focussing on the application of the law, the judge diverted his attention towards making a moral judgment based on the clothes worn by the victim. They were taken by the accused’s lawyers from Facebook and in any case, should not have sufficed so as to undermine such an accusation. This order’s rationale re-affirmed misogynistic ideas rooted in sexist grounds wherein the onus of the crime is placed on a victim’s conduct during or before such an event and not on the perpetrator’s actions. The occurrence of such an incident is seen as being the victim’s fault and questions are raised regarding her character.
This, however, was not the first case where Chandran has been accused of trying to outrage a woman’s modesty. In July, a Dalit writer had alleged that he had tried to kiss her on the neck and outrage her modesty. Chandran was booked under Sections 354, 354A (i), 354 A (2), and 354 D (2) of the IPC. He was also charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 under Section 3 (w)(i) and Section 3 (2) (va) which deal with intentionally and sexually touching a woman belonging to a Scheduled Caste or Scheduled tribe without her consent and committing an offence stated in the Schedule against a person knowing that the person belongs to a Scheduled Caste or Scheduled Tribe respectively.
The same judge had granted him anticipatory bail in this case too and had stated that the offences would not stand against the accused as it was “highly unbelievable that he will touch the body of the victim fully knowing that she is a member of Scheduled Caste.” He stated that this complaint was “an attempt to tarnish the status of the accused in society” and since Chandran was fighting against the caste system and wrote in support of a casteless society, the offences would prima facie fail to stand. Further, the judge noted that while considering Chandran’s age and health that it was not believable that he kissed the back of a woman’s neck when she was much taller than him.
It must be noted that these orders echo the very same archaic sentiment that the apex court of this country has taken a strong stance against. The Supreme Court’s judgement in Aparna Bhat vs The State of Madhya Pradesh, 2021 highlighted certain guidelines that must be kept in mind when dealing with cases of crimes against women stating clearly that bail conditions must be free from ‘stereotypical’ or ‘patriarchal notions on women’ and that such gendered prejudices must not hinder the path of justice. It is time for the same to be seen and implemented in practice.
The author is a student at Government Law College, Mumbai. Views are personal