On March 26, the Supreme Court of India stayed a deeply controversial judgment delivered by the Allahabad High Court, which held that the acts of grabbing the breasts of a minor girl, breaking the string of her pyjama, and attempting to drag her beneath a culvert did not amount to an offence of attempt to rape. Instead, the High Court ruled that such actions would prima facie constitute ‘aggravated sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act, 2012, which carries a lesser punishment compared to attempt to rape under the erstwhile Indian Penal Code (IPC).
This decision sparked significant public outrage, with legal fraternity and child rights activists criticising the ruling as a gross misinterpretation of sexual offence laws. The Supreme Court, acknowledging the gravity of the issue, intervened suo moto. Hearing the suo-moto case, a bench comprising Justices B.R. Gavai and A.G. Masih strongly rebuked the High Court’s observations, terming them “shocking” and indicative of a “complete lack of sensitivity” in the judicial reasoning.
Supreme Court’s observations
The Supreme Court took particular exception to the rationale of the High Court, noting that the judgment was not issued in haste but was delivered after being reserved for nearly four months. This indicated that the judge had ample time to consider the legal implications, making the insensitivity of the judgment even more alarming. The bench specifically pointed out paragraphs 21, 24, and 26 of the judgment, stating that they reflected an “inhuman approach” and a complete departure from established legal principles. Consequently, the Supreme Court stayed these observations and issued notices to the Union of India, the State of Uttar Pradesh, and other parties involved in the proceedings before the High Court.
For reference, following are the mentioned paras from the judgment of the High Court:
“21. 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 lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim.”
“24. The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”
“26. After giving a thoughtful consideration and meticulous examination of the facts of the case, this court is of the considered opinion that mere fact that according to prosecution version two accused Pawan and Akash grabbed the breasts of the victim and one of them namely Akash broke the string of her pyjama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby/witnesses the accused persons fled away from the spot leaving the victim behind, is not sufficient to hold that a case of Section 376, 511 IPC or Section 376 IPC read with Section 18 of POCSO Act has been made out against the accused persons.”
Solicitor General of India, Tushar Mehta, also appeared before the Supreme Court and condemned the High Court’s judgment, calling it “disturbing” and “untenable.” The court took cognisance of the case based on a letter submitted by Senior Advocate Shobha Gupta on behalf of the NGO ‘We the Women of India,’ highlighting the potential ramifications of such a ruling on child safety jurisprudence.
Facts of the case and High Court’s ruling
According to the prosecution, the accused persons, Pawan and Akash, assaulted an 11-year-old girl by grabbing her breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert. The trial court, considering this a case of attempt to rape or attempt to commit penetrative sexual assault, invoked Section 376 of the IPC along with Section 18 of the POCSO Act and issued a summoning order under these provisions.
However, when the accused challenged the summoning order before the Allahabad High Court, the single-judge bench presided over by Justice Ram Manohar Narayan Mishra ruled that the allegations did not meet the threshold for attempt to rape. The court made a legally questionable distinction between preparation and attempt, arguing that the prosecution had not established that the accused had moved beyond the stage of preparation towards committing the offence. Instead, the High Court directed that the accused be tried under the lesser offence of Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9 and 10 of the POCSO Act, which deal with aggravated sexual assault.
The High Court’s ruling has been widely condemned for its regressive and flawed interpretation of sexual violence laws. By holding that a greater degree of determination was required to establish an attempt to rape, the court demonstrated an outdated and restrictive understanding of sexual crimes. The ruling also suggested that unless complete disrobing or a near-penetrative act occurred, the offence of attempt to rape could not be established. Such an interpretation ignores decades of legal evolution, including Supreme Court judgments that have recognised a broader and more victim-centred approach to defining sexual violence.
Furthermore, the judgment was riddled with factual inconsistencies regarding the victim’s age. While at one point, the High Court referred to her as 14 years old, in another instance, it described her as “older than 11 years.” However, since the court invoked Section 9(m) of the POCSO Act—applicable in cases where the victim is below 12 years—it can be inferred that the court assumed the victim to be between 11 and 12 years old. This lack of clarity raises concerns about the judicial application of key statutory provisions.
More concerning was the High Court’s failure to consider the victim’s psychological trauma and the terror she must have experienced during the attack. Legal experts have pointed out that the court’s approach was not just legally unsound but also deeply insensitive to the lived realities of sexual violence survivors.
The judgment of the HC may be read below.
Previous dismissal of writ petition challenging the High Court order
In a separate but related development, the Supreme Court had on March 25 dismissed a writ petition filed under Article 32 of the Constitution, which sought to challenge the Allahabad High Court’s ruling. The petition was filed by an unrelated third party who was not part of the original criminal proceedings. A bench comprising Justices Bela M. Trivedi and P.B. Varale ruled that such a challenge should have been filed as a Special Leave Petition (SLP) under Article 136, rather than as a writ petition under Article 32.
During the hearing, an advocate appearing for the petitioner attempted to invoke the government’s “Beti Bachao, Beti Padhao” campaign to highlight the case’s broader significance. However, Justice Trivedi immediately interjected, stating that “lecture baazi” (sermonising) would not be entertained in court. She also questioned the absence of the Advocate on Record (AOR) and the petitioner. Following these observations, the court summarily dismissed the writ petition, reinforcing the view that procedural technicalities should not be bypassed in challenging judicial orders.
Implications of the Supreme Court’s intervention
The Supreme Court’s decision to stay the Allahabad High Court’s order is a necessary and urgent corrective measure for several reasons:
- Judicial accountability: The Supreme Court’s intervention underscores the need for High Courts to exercise sensitivity when adjudicating sexual offence cases. Judges must be held accountable for legal interpretations that dilute the protections granted to victims.
- Gender justice: The ruling highlights the persistent challenges in ensuring a gender-sensitive legal system. The High Court’s flawed reasoning reflects a need for continuous judicial training on laws related to sexual violence.
- Legal precedent: By staying the High Court’s order, the Supreme Court has signalled that outdated and restrictive interpretations of sexual offences will not be allowed to shape legal discourse.
- Child protection: The judgment serves as a reminder that courts must prioritise the best interests of children in cases of sexual violence, rather than engaging in overly technical distinctions that undermine victim/survivor rights.
This case is a stark reminder that while legal statutes provide a framework for justice, the judiciary’s interpretation of these laws plays a crucial role in determining whether justice is truly served. The Supreme Court’s intervention reassures the public that regressive judicial reasoning will not be allowed to weaken protections for survivors of sexual assault.
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