While the expunction of the remarks has been hailed, the high court’s upholding of the anticipatory bail to the accused has disappointed observers.
On Thursday, the Kerala High Court judge, Justice Kauser Edappagath, expunged the controversial remarks by a Sessions Court Judge in Kozhikode, Kerala while granting anticipatory bail order to the Kerala writer and social activist, Civic Chandran, in a sexual harassment case. The High Court, however, upheld the decision of the Sessions Court in granting anticipatory bail to him.
On August 12, the Sessions Court Judge, S. Krishna Kumar, while granting anticipatory bail to Chandran, observed that the charge of Section 354A of the Indian Penal Code (‘IPC’) would not prima facie stand against the accused as the complainant wore a dress, which was “sexually provocative”.
The complaint against the 74-year-old accused was pertaining to an alleged sexual assault under Sections 354A(2), 341, and 354 of the IPC.
On the remark of the Sessions Court judge, the High Court in its judgement observed, “Everyone has the freedom to wear whatever he/she wants to wear subject to the laws of the land. Objectifying women in regard to what she wears cannot be justified. There cannot be any thought that women dress only to lure male attention.”
“Sexually provocative dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of insulting the modesty of a woman. The right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution of India. Even if a woman wears a sexually provocative dress, that cannot give a licence to a man to outrage her modesty”, the court added.
The court relied on the Supreme Court’s decision in Aparna Bhat and Others versus State of Madhya Pradesh and Another (2021) that held a discussion about the dress, behaviour, or past conduct of the victim should not enter the verdict while granting bail to the accused. It, thus, observed, “The remarks in the impugned order regarding provocative dress of the victim cannot be sustained and they are hereby expunged.”
On the complainant’s plea that the bail application should be remanded to the lower court for fresh disposal, Justice Edappagath held: “A perusal of the entire records would show that, even otherwise, on merits, the accused has made out a case for pre arrest bail”.
According to the court, on the delay in filing a First Information Report, the explanation by the complainant that such delay of two and a half years occurred due to fear and shame is ‘vague and not convincing’. Further, the court observed that the accused is a senior citizen, and since the investigation is over, his custodial interrogation is not necessary.
While the high court confirmed the anticipatory bail order, it imposed additional conditions on the accused.
Advocate J Sandhya, an activist, lawyer, and a former member of the Kerala Child Rights Commission, hailed the order expunging the controversial remarks. However, she wished that there were some directions to the lower court. With the High Court taking up the matter, it should have given some directions to prevent such observations from being made, she said. Some directions to the Kerala Judicial Academy to sensitise judges should have been given, she added.
Sandhya, however, expressed her dissatisfaction that the high court chose to uphold the grant of anticipatory bail to the accused in this case, instead of quashing the lower court’s order, as sought by the state and the complainant.