Supreme Court stays Allahabad High Court’s observations over rape, terms them ‘insensitive’-OxBig News Network

The Supreme Court of India on Wednesday (March 26) stayed the observations made in an order of the Allahabad High Court which said mere grabbing of the breast and pulling the string of a ‘pyjama’ do not amount to the offence of rape. A bench of Justices BR Gavai and Augustine George Masih today observed that it was painful to say that some of the observations made in the high court order depicted total ‘insensitiveness’ and an ‘inhuman approach’.

Supreme Court bench issues notice to Centre, UP govt 

The bench on Wednesday issued notice to the Centre, Uttar Pradesh government and others seeking their responses in the suo motu proceedings initiated over the high court’s March 17 (Monday) order. The apex court has taken cognisance on its own of the controversial order. It also sought the assistance of Attorney General of India R Venkataramani and Solicitor General Tushar Mehta in the matter.

The high court on March 17 ruled that mere grabbing of the breast and pulling the ‘pyjama’ string does not amount to the offence of rape, but such an offence falls under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked.

The order was passed by Justice Ram Manohar Narayan Mishra on a revision petition filed by two persons who moved the court, challenging the order of a special judge of Kasganj by which the court had summoned them under Section 376 (rape) of the Indian Penal Code apart from other sections.

What were the key observations made by the Allahabad High Court?

According to facts of the case, an application was moved before the court of Special Judge, POCSO Act, alleging that around 5:00 pm on November 10, 2021, she (the informant) was returning from the home of her sister-in-law (husband’s sister) along with her minor daughter, aged about 14 years.

Accused Pawan, Akash and Ashok, who were from her village, met her on the way on a muddy road and asked where she was coming from. When she replied she was coming from her sister-in-law’s place, Pawan offered a lift to her daughter, assuring her that he would drop her at her residence. Relying on his assurance, she permitted her daughter to accompany him on his motorcycle.

The accused persons stopped their motorcycle on the muddy way to her village and started grabbing her breasts. Akash dragged her and tried to take her beneath the culvert and pulled the string of her ‘pyjama’. Two persons reached the spot on hearing the cries of her daughter. The accused persons threatened them with life by pointing a country-made pistol and fled the place. After recording the statement of the victim and the witnesses, the court summoned the accused for the offence of rape.

After going through the materials on record, the court found, “In the present case, the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim, and Akash tried to bring down the lower garment of the victim, and for that purpose, they had broken the string of her lower garments and tried to drag her beneath the culvert, but due to the intervention of witnesses, they left the victim and fled away from the place of the incident.

“This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on the victim, as apart from these facts, no other act is attributed to them to further their alleged desire to commit rape on the victim,” the court said.

Legal experts condemn Allahabad High Court ruling on rape

Legal experts earlier deplored the observation of the Allahabad High Court on what constitutes a rape charge, calling for restraint by judges and underlining the drop in public confidence in the judiciary due to such statements. The high court ruled that actions like grabbing of breasts and breaking of the string of a ‘pyjama’ or lowers of a woman did not amount to rape.

Senior advocate Vikas Pahwa said the interpretation of the Allahabad High Court appeared to set a concerning precedent by narrowly defining what constitutes an attempt to rape. He said that the alleged actions of “grabbing breasts, pulling down the pyjamas, and dragging the girl towards the culvert” strongly indicated an intent to commit rape, arguably surpassing mere preparation and entering the realm of attempt to rape.

He said that the alleged actions of “grabbing breasts, pulling down the pajamas, and dragging the girl towards the culvert” strongly indicated an intent to commit rape, arguably surpassing mere preparation and entering the realm of attempt to rape.

“Decisions like this risk undermining public confidence in the judicial system’s commitment to protecting victims of sexual violence. They may also discourage survivors from coming forward, fearing that their experiences will be minimised or dismissed. It is imperative that the judiciary adopts a more victim-centric approach, ensuring that actions indicative of an intent to commit rape are appropriately recognised and prosecuted to uphold justice and deter potential offenders,” Pahwa said.

He further said that at the summoning stage, courts typically assess whether there is a prima facie case based on the allegations, without delving deeply into the evaluation of evidence.

“By re-evaluating the nature of the offense at this preliminary stage, the High Court may have overstepped, as such determinations are generally reserved for the trial phase,” he said.

Echoing his views, senior advocate PK Dubey said such an observation was not warranted. “There is no place of personal views of a judge, and a judge must follow settled law and jurisprudence,” he said. In the matters involving sexual offences the test is whether there is an expression of sexual desire in any form coupled with the fact that the act committed, caused injury to the person on whom the act was committed, he added.