Kerala sessions court’s grant of bail to accused citing woman’s provocative dress is an egregious violation of law

The legal position is beyond clear that there is no ground for a judge to base their decision regarding the determination of guilt on their subjective analysis of a woman's character. Any judicial scrutiny over the persona of the victim – her character, her clothes – is an affront to the spirit of justice, inherent in the prized functioning of a court, and must be desisted by institutional forces and the citizenry alike.

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ON August 12, the Keralite writer and activist, Civic Chandran was granted anticipatory bail by a sessions court in Kerala in a sexual harassment case. The grounds on which the bail was granted raise some pertinent issues related to judicial stereotyping, the relevance of a victim's character in cases of sexual harassment, and the sexism entrenched in the institutional mind-set.

Why is the grant of bail controversial?

The court of sessions in the Kozhikode Division of Kerala granted anticipatory bail under Section 438 of the Code of Criminal Procedure ('CrPC') to the septuagenarian on his apprehension of being arrested by the police in a case registered under Sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354A (sexual harassment and punishment for sexual harassment) and 341 (punishment for wrongful restraint) of the Indian Penal Code ('IPC'). The court, while granting anticipatory bail, reasoned:

"The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused".

The court based its decision on the principle that a case of sexual harassment doesn't prima facie stand if the complainant is wearing a "sexually provocative" dress. It also reasoned that there was a long delay in lodging the first information report ('FIR'), basing it as another ground for the grant of bail.

It may be pertinent to note that Judge S. Krishnakumar, who granted the bail, has been transferred days after delivering this order to the Labour Court, Kollam, apparently because of the public angst that followed this order.

Also read: Kerala writer, accused of sexual harassment, gets anticipatory bail on the basis of 'regressive' reasoning

How relevant is the question of a woman's character in a criminal trial for sexual offences?

Although it is beyond logic for a judicial authority to assess character of a woman on the metric of her clothes, yet a bigger question is if this assessment of a woman's character is at all relevant for the purposes of deciding the guilt of the accused, let alone the question of granting or denying bail. This question has been answered in the negative by a slew of amendments to the Indian Evidence Act.

Section 53A, which was added to the Indian Evidence Act in 2013, on the recommendations of the Justice J.S. Verma-led Judicial Committee appointed by the Union Government, provides that in a prosecution for an offence under Sections 354 and 354A, among others, of the IPC, where the question of consent is in issue, evidence of the character of the victim or of their previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

Even prior to the 2013 Amendment, the 2002 Amendment to the Evidence Act had sowed the seeds of a statutory guard against attempts at character-assassination while exercising functions of judicial scrutiny. The 2002 Amendment deleted Section 155(4) of the Evidence Act, which provided that "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character", in order to impeach the credit of such prosecutrix. The deletion of section 155(4) was done to put an end to the possibility of virtual trial of a victim of sexual offences in a court trying the accused.

Another legislative amendment to the Evidence Act which assumes relevance here is the amendment to Section 146, which provides for the type of questions that may be asked by an adverse party while conducting cross-examination during trial. The 2013 Amendment to this Section has inserted a proviso to section 146 which provides that:

"In a prosecution for an offense under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent".

The legal position is beyond clear that there is no ground for a judge to base their decision regarding the determination of guilt on their subjective analysis of a woman's character. The present Kerala court bail order, by basing its decision on an assessment of a woman's character, and letting that be solely determinative of the possibility of the commission of offence, is in violation of the clear mandate of evidence law.

Also read: Pedantic Approach by Kerala High Court Holding that Gender Discrimination is Not Sexual Harassment

What are the "gender-stereotypes" implicit in the reasoning of the court, and why is the same problematic?

The bail order reflects that the reasoning of the court followed this logic: the notion of "dressing" a certain way as amounting to "provocative dressing"; the notion of "provocative dressing" as reflective of "loose character"; the notion of "loose character" as a safe ground to disbelieve the victim.

While the third leg of this reasoning is clearly against the legislative mandate of the Evidence Act, as explained above, the other two have also been challenged in judicial pronouncements. For instance, in the Supreme Court judgment in the case of Aparna Bhatt versus State of MP, pronounced earlier this year, the court held that:

"The verdict granting bail should limit itself to the CrPC and should not reflect any stereotype or biasness of the judge and no comments on the conduct, dressing choice, morals or behavior of the complainant should be made."

The court also laid down an illustrative list of 10 stereotypes. The eight stereotypes in that order states: "Being alone at night or wearing certain clothes make women responsible for being attacked".

The present order is in sharp violation of the guidelines of the Supreme Court, in making the "provocative dress" of a woman the single-most dominant factor of granting bail.

Also read: Supreme Court issues guidelines to be followed in sexual harassment and assault cases

Is delay in lodging FIR a fair ground to disbelieve allegations and grant anticipatory bail? 

While granting anticipatory bail, the court also reasoned that since there has been a long delay in lodging an FIR, it must be properly explained. The court based that as another reason to support its order for grant of anticipatory bail.

It becomes relevant in this light to discuss the law on delay in lodging an FIR and its impact on trials for sexual offences. In the landmark Supreme Court judgment of State of Punjab versus Gurmit Singh & Ors. (1996), the court, while dealing with the defence of long delay in lodging an FIR in a rape case, observed that:

"Some delay, in facts and circumstances of the case, was natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family."

The observation of the court reveals a presumptive approach in deeming the nature of the offence as a sufficient explanation of delay, and that delay simpliciter is ipso facto no ground to raise "reasonable doubts" on the prosecution case.

Another important point to be noted here is that, the present case is one dealing with grant of bail, and not determination of guilt. This stage doesn't call for the meticulous weighing of evidence; rather, it requires the court to form a broad view of the case.

It is pertinent in this context to take note of a judgment pronounced by the Punjab and Haryana High Court last month, dealing with a similar plea of grant of anticipatory bail in the context of allegations of sexual harassment. The court held in that case that the delay in lodging the FIR could not be taken into account at the stage of consideration of anticipatory bail when the investigation is at the threshold.

The emphasis by the Sessions court of Kerala on delay as forming a ground for grant of anticipatory bail is therefore reflective of a lack of sensitivity and ignorance of legal specificities.

Is this the first bail order of judicial stereotyping in matters dealing with sexual harassment? 

No. The Karnataka High Court, while granting bail in a rape case in 2020, observed: "The explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman. That is not the way our women react when ravished." Further, the judgment impressed upon the fact that the complainant had left her office at 11 p.m., and did not object to consuming drinks with the accused.

The 2016 Supreme Court judgment in Raja & Ors versus State of Karnataka is another example of rape-myths and judicial stereotyping. The court, disbelieving the testimony of the victim, observed:

"From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct. Her post-incident conduct and movements are also noticeably unusual."

Also read: Unmasking the misogyny of Indian Courts

Is there a "benevolent side" to stereotypical sexism in judicial scrutiny over cases of sexual harassment and rape?

The trend of judicial stereotyping is not always hostile towards women; it does come in different forms. Benevolent sexism in the judiciary's approach in dealing with cases of sexual harassment is, unlike instances of hostile sexism, not a rarity – but it usually manifests as stray remarks, made as a matter of course in judgments. Viewing rape as "a serious blow to the supreme honour of a woman" and as something that "indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity", and opining that "[a woman's] chastity or virginity…is the most valued possession of hers", are common threads of reasoning that are often taken as the logical bases to convict accused persons in cases of sexual offences against women. The attachment of honour to the chastity of women is the other end of the sexism-spectrum, namely, benevolent sexism.

This approach, though seemingly innocuous, needs to be critically re-evaluated. The problem with such an approach can be understood in light of the observations made by Justice Dipak Misra in the Supreme Court's judgment in Joseph Shine versus Union of India (2018). While striking down Section 497 of the IPC, which criminalized adultery, and in doing so only punished men and not women, he observed that:

"At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ―romantic paternalism which stems from the assumption that women, like chattels, are the property of men."

The benevolent sexism entrenched in the semantics used by courts while describing the plight of a rape victim need to be re-assessed from this lens. At first glance, it seems favourable towards women. However, on a deeper evaluation, it classifies them as a separate class, and uses generalizations to associate values with them. In United States versus Virginia (1996), the U.S. Supreme Court cautioned against provisions based on overbroad-generalizations of capacities of women, to the effect that they presume "the way women are", and held that as violative of the principle of equality.

Any judicial scrutiny over the persona of the victim – her character, her clothes – is an affront to the spirit of justice, inherent in the prized functioning of a court, and must be desisted by institutional forces and the citizenry alike.

It is hoped that the Kerala court's bail order is reversed at the earliest.