Kerala writer, accused of sexual harassment, gets anticipatory bail on the basis of ‘regressive’ reasoning

Kohzhikode sessions court gives relief to Kerala writer Civic Chandran, accused of sexual harassment and under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on specious grounds, despite the 2018 amendment to the Act, which seeks to make the bar against grant of anticipatory bail to those accused under it stringent. 

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THE ghost of the Supreme Court verdict in Dr. Subhash Kashinath Mahajan versus State of Maharashtra (2018) refuses to get salvation despite the serious efforts by the Union Government to make the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 more stringent by way of amendment in 2018.

A recently passed order of the Session’s Court, Kozhikode in Kerala (Crl. MC 1221/2022 dated August 2) raises many fidgety questions about the oblivious judicial interpretations of the law, which was made more stringent subsequent to the agitations and the blood shed of the members of the Scheduled Castes and Scheduled Tribes communities in April 2018 in response to Dr. Subhash Kashinath Mahajan, which ruled that arrests can be made without a preliminary inquiry, and anticipatory bail can be granted to an accused if the complaint is found to be prima facie mala fide upon judicial scrutiny.

The bar created under the Sections 18 and 18A(2) of the Act with respect to granting anticipatory bail to those who are booked under the Act, is easily being outdone in courts. Though section 18A(2) stipulates that the provisions of Section 438 of the Code of Criminal Procedure (‘CrPC’), dealing with anticipatory bail, shall not apply to a case under the Act notwithstanding any judgement or order directions of any court, thanks to the interpretations of many high courts as well as the Supreme Court, particularly in Prathvi Raj Chauhan versus Union of India (2020), the test to grant anticipatory bail now rests with the judge, who has to decide whether a prima facie case exists in the matter before them. This highly judge-centric norm has started to adversely affect the effective implementation of the Act.

The above mentioned order of the district Court is one such example. The court, merely by looking at the first information report (‘FIR’) and the statement under Section 161 of the CrPC of a victim of sexual harassment, concluded that no prima facie case exists, and even went to the extent of asserting that the case is not genuine. The court’s order assumes significance as this pertains to a case of sexual harassment meted out to a Dalit woman writer at the hands of a noted septuagenarian writer and activist from Kerala, Civic Chandran. (Subsequent to this complaint, another ‘me too’ complaint was also registered against Chandran).

The wheels of investigation had just began to roll with the registration of the FIR by the Dalit complainant against the accused under Sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354A(1)(ii) (sexual harassment through demand or request for sexual favours), 354A(2) (punishment for sexual harassment) and 354D(2) (punishment for stalking) of the Indian Penal Code, and Section 3(1)(w)(i) and (2)(va) (punishments for offences atrocities) of the 1989 Act.

However, the court, in order to meet the standard of test to be applied, that whether there is a prima facie case in the matter, hurriedly established that there is no prima facie case, and went on to state that the complaint was made to tarnish the status of the accused in society.

The reasoning cited for reaching this conclusion is all the more astounding and regressive. The court states that “[the accused] is writing and fighting for a casteless society. In such a circumstance it is highly unbelievable that he will touch the body of the victim fully knowing that she is a member of schedule caste”, and that “the victim is taller than the accused. Considering his age and poor health condition it cannot be believed that the accused made a kiss on her back without her consent”.

Such gender-insensitive and regressive reasoning resonates with the observations of the Sessions Court in the much debated Bhanwari Devi case of 1995. The judicial stereotyping expressed by the sessions judge in the instant case reveals that any further in delay in following the direction of the Supreme Court in Aparna Bhat versus The State of Madhya Pradesh (2021), with respect to conducting gender sensitisation programmes for judicial officers, will be catastrophic for female victims of violence.

In addition to the gender bias, the caste bias is also evident in the impugned order. In the anticipatory bail order with respect to a crime under the 1989 Act, the court, in the initial part of the order, expressly calls for the future prospect of doing away with special legislation such as the 1989 Act, and forgoing reservation given to Scheduled Castes, Scheduled Tribes and Other Backward Classes!

After obtaining a clean chit from the district court at the bail stage itself, it is anybody’s guess as to the next move of the accused in the present case.

In spite of having a stringent law in the country for the protection of Dalits from caste atrocities, justice eludes many like the present Dalit woman complainant. In a country where there is no sincere effort to unpack the gender notions and caste biases amongst the judicial fraternity, can we afford to keep these judge-centric norms and still say we have done it all to provide justice to the Dalit community?

Click here to view the Kozhikode Sessions Court’s full order.

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