SC may issue sensitivity norms for courts in sexual assault cases

The Supreme Court on Monday agreed to consider framing comprehensive guidelines for courts across the country on the sensitive handling of cases involving sexual assault victims

The Supreme Court on Monday agreed to consider framing comprehensive guidelines for courts across the country on the sensitive handling of cases involving sexual assault victims, calling “unfortunate” a March 17 judgment of the Allahabad High Court that had ruled that grabbing a minor girl’s breasts, breaking the string of her pyjama and dragging her under a culvert did not amount to an attempt to rape.

The bench was hearing applications filed after the court had in March taken suo motu cognisance of the Allahabad HC decision. (ANI)

Continuing the suspension of that ruling, a bench led by Chief Justice of India Surya Kant expressed anguish over the lack of sensitivity displayed in judicial pronouncements in cases involving sexual offences.

“Our concern is that at the level of the High Court, the degree of sensitivity which we are required to observe is missing…we are inclined to issue comprehensive guidelines,” said the bench, also comprising Justice Joymalya Bagchi as the matter came up for hearing.

The bench was hearing applications filed after the court had in March taken suo motu cognisance of the Allahabad HC decision, which had sparked nationwide outrage. The top court had then stayed the observations contained in the order, describing them as “insensitive and inhuman” and asking the chief justice of the Allahabad HC to take “appropriate steps” against the judge responsible, Justice Ram Manohar Narayan Mishra.

During Monday’s hearing, senior advocate Shobha Gupta, appearing on behalf of the NGO We the Women of India, said that the order was not an isolated aberration but part of a disturbing trend where courts made comments that risked shaming survivors and trivialising sexual violence.

“Unfortunately, this is not a single judgment. Similar judgments came from another bench of Allahabad High Court, saying if you are drunk (the victim) and went to the home, you are inviting trouble yourself. Calcutta High Court-- similar observations; Rajasthan High Court -- similar observations. It’s being repeated,” Gupta submitted.

Another counsel highlighted concerns about the treatment of victims even during closed in-camera trials, pointing to a Kerala sessions court instance where several people were present during the testimony of the survivor, who was then harassed.

The CJI observed that the impact of judicial language cannot be understated. “Sometimes we ignore and make observations which may have a chilling effect on the victims or the society at large. Maybe these kinds of observations happening at the trial court levels are going unnoticed, where the victims and their families might be unfortunately reconciling with the accused because of this kind of observation,” he remarked.

The bench then ordered that the impugned judgment of the Allahabad High Court be stayed in entirety, clarifying that the trial of the accused will proceed on charges under attempt to rape and rape of the Indian Penal Code, besides pertinent provisions of the Protection of Children from Sexual Offences (POCSO) Act. It noted that the accused are aware of the proceedings and directed the state to ensure they are informed of the next hearing.

The bench also sought written suggestions from counsel on the framework of proposed guidelines. The matter will be listed for further consideration, with the court indicating that it intends to lay down gender-sensitive procedural standards for all courts.

The case arose out of the November 2021 incident when three men, Pawan, Akash and Ashok, allegedly sexually assaulted their 11-year-old neighbour after offering her a ride, grabbing her breasts and attempting to drag her under a culvert. The trial court had treated the incident as an attempt to rape, summoning the accused accordingly. However, Justice Mishra of the Allahabad High Court downgraded the charges to Section 354-B IPC (assault or use of criminal force with intent to disrobe) and Sections 9/10 of POCSO, holding that the actions did not amount to an attempt to rape as they had not gone “beyond the stage of preparation.” This distinction drew heavy backlash from women’s groups, legal experts and politicians.

When the Supreme Court took up the matter suo motu on March 26 following a letter by senior advocate Gupta, it condemned the judgment as one showing a “complete lack of sensitivity” and violating “canons of law,” calling the reasoning “very serious.”

Solicitor General Tushar Mehta had then told the court: “I take strong exception to this judgment. It is one of those cases where the Chief Justice of the High Court needs to act.” The top court had observed that the judgment could not be justified as a hurried decision since it was reserved in November 2023 and delivered four months later, making clear that it was the outcome of deliberate judicial thought.

The ruling had prompted strong reactions from political and civil society circles. Union Minister for Women and Child Development Annapurna Devi called it “unacceptable” and said it had “no place in a civilized society.” Shiv Sena (UBT) MP Priyanka Chaturvedi wrote to the Chief Justice of India and the Union Law Minister demanding removal of Justice Mishra from judicial duties, calling the ruling “depraved.”