Trigger warning: The article contains mentions of gender-based violence.
In a recent order which is appalling, to say the least, the Kozhikode Sessions Court, whilst granting bail to the accused in a sexual harassment complaint, noted that the offence under Section 354A of the Indian Penal Code was not prima facie attracted when the victim had photographs clad in ‘sexually provocative’ dresses.
The Court further noted that the accused, being a 74-year-old male with a disability, could not have forcefully touched the complainant, thereby making the matter fit for grant of bail.
While the order has rightfully attracted widespread condemnation from all corners, it still goes on to establish the deep-rooted misogyny and the problematic yet pervasive trend of normalising sexual abuse by questioning the reputation of the victim.
The crux of the issue
The accused in question, Civic Chandran, is a well-known Malayalam writer and prominent cultural figure in Kerala. The victim alleged that during a writing camp in February 2020, the accused forcefully took her to a lonely place, asked her to lie on his lap and thereafter tried to outrage her modesty.
The sessions judge noted that the accused was a man of ‘good reputation’ and that it was ‘impossible’ for the Court to believe that he could have sexually harassed the complainant in the present case.
It was also averred that the complaint had been filed with the objective of seeking vengeance from the accused and lowering his reputation in society. The Court took the view that the protection of sexual harassment law could not be extended to the victim since photographs produced on record showed the complainant dressed in ‘sexually provocative’ clothes.
The Court’s sympathy with the accused person and the strong belief that he could not have committed the crime is perplexing. Interestingly, shortly after the FIR was filed, the accused remained absconding and actively sought to evade any investigation against him.
This is also the second instance of a sexual harassment complaint against the accused, wherein another writer had also made similar allegations of outraging her modesty. Despite this utter regard for the judicial system and unwillingness to cooperate during the investigation, the accused was still granted bail, and the blame was brazenly shifted onto the victim.
The law of it
The sessions court judge invalidly noted that Section 354A of the Indian Penal Code did not stand against the accused as the complainant had photographs in ‘sexual provocative’ dresses.
The substance of Section 354A(1)(i) provides that physical contact and advances involving unwelcome and explicit sexual overtures constitute sexual harassment which shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. It is noteworthy that the law does not provide any exceptions to the application of this section based on the victim’s clothing or attitude.
On a separate but related note, the Supreme Court in State (NCT of Delhi) v. Pankaj Chaudhary & Ors., elucidated that even if allegations pertaining to the moral character of a woman are found to be true, she is still entitled to privacy and it is not open to any person to violate her.
Therefore, in the present matter, the complainant’s right to seek protection under the sexual harassment law remains unfettered, and the judge’s interpretation is not only alarmingly insensitive but also legally erroneous.
Two steps back and none forward
Despite growing awareness about rape and the catastrophic effects of sexual harassment on the physical and mental being of women, the legal treatment of such offences continues to perpetuate archaic gender norms, including the notion of women ‘asking for it’ unless the absence of consent is explicitly proven.
The Court’s approach, in this case, indicates a systemically rooted presumption that women are willing recipients of their abuser’s conduct on account of exhibiting behaviour which doesn’t fall within the four walls of what is stereotypically acceptable.
Literature on this subject indicates that where welcomeness to sexual harassment is presumed, courts often look to the victim’s conduct for evidence to the contrary. Hence, the Court may view certain conduct as condoning the harassment resulting in more scepticism against protecting such women.
Positing that women who choose to dress as they please waive their right to bring sexual harassment claims to promote a harmful ideology which stands in sharp contrast to the ethos of bodily agency and the right to choose.
In reality, clothing is not probative or relevant evidence of the attitude of the wearer. Rather, the inferences drawn by the perceiver are only an extension of their own mindset and intention.
The macro-level apathy towards ensuring justice for sexual abuse survivors in India is reflected in the fact that usage of the word ‘sexual harassment’ has now been deemed ‘unparliamentary’ on the floor of the Indian Parliament.
The Delhi High Court’s split verdict on the criminalisation of marital rape in May 2022 was another disappointing judgement which licensed the continuing brutalisation of women within their own homes in the name of upholding the institution of marriage.
At a time such as this, re-instating accountability and bringing gender justice to the fore is the need of the hour to send out a strong signal to existing as well as potential sexual offenders.
The long road ahead
As the judicial system of the country is vested with the duty of upholding citizens’ rights, these gender-insensitive and regressive statements which rationalise sexual harassment can further jeopardise the safety of women in the country.
It is, therefore, essential for the higher judiciary to intervene in this matter to ensure that the irrationally devised prima facie view is quashed.
Further, it is pivotal to address this issue at a systemic level to ensure greater sensitivity among law enforcement personnel. While the legal investigation may take its own course, such issues ought to be approached through the lens of gender inclusivity and a sense of sincerity to inspire confidence in the legal system.
The same could also be ensured by enabling better representation of women in the judiciary so that a more empathetic approach can be adopted in instances of sexual abuse.
Featured image source: Shreya Tingal for Feminism In India