The Allahabad High Court’s recent decision that grabbing a minor girl’s breasts and breaking the string of her pyjama and dragging her under the bridge does not amount to an attempt to rape as the accused ran off after interruption from passerby has elicited serious concerns over the way sexual violence is perceived and interpreted by Indian courts. Instead of terms like “attempt to sexually assault,” the court chose to downgrade the incident to aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, which carries a significantly lesser penalty.
Instead of terms like “attempt to sexually assault,” the court chose to downgrade the incident to aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, which carries a significantly lesser penalty.
This judgement is not just an aberration but forms a pattern, in which the courts have shown extreme reluctance in acknowledging certain sexual offenses as “attempt to rape.” They are therefore inadvertently creating a disadvantageous precedent for survivors’ legal provisions. Fot the Rajasthan High Court in 2024, taking off a minor’s innerwear and undressing before her did not make it an attempt to rape. It stands tall as another example whereby the courts remained reluctant to apply the strongest provisions.
This series of judgments sends troubling signals on what constitutes a “serious” sexual offense, further removing from the consciousness of the law the realities survivors face and extending the very loopholes that protect perpetrators.
The legal technicality shielding sexual offenders
The court’s interpretation of “attempt” is one of the undermentioned and key issues of the Allahabad HC ruling. Under Section 511 of the IPC (now Section 62 of the Bharatiya Nyaya Sanhita), an attempt to commit a crime comprises an act which goes beyond mere preparation and has a direct connection with the commission of the offense. Courts have previously held that initiative and preparatory acts may, in some cases, amount to an attempt. But this standard applies selectively with victimisation of women in sexual crimes.
The Supreme Court in case of Malkiat Singh v State of Punjab notices that the “best test” to determine whether a given series of acts constitute an attempt or merely preparation is whether the acts done so far are such that should the man change his mind and not go any further, the acts already done will cause no harm whatsoever. If they don’t, then it is merely preparation. But when the thing done is such that if not prevented by some outside agency, it would bring about the commission of the offence, it shall amount to an attempt to commit that offence. In this particular case, the accused only ran after the interference of the passerby.
The physical act of forcefully grabbing breasts of a child and breaking the pyjama string shows unambiguous sexual intent, which could not be brushed aside as “outraging modesty” or a smaller form of assault.
The physical act of forcefully grabbing breasts of a child and breaking the pyjama string shows unambiguous sexual intent, which could not be brushed aside as “outraging modesty” or a smaller form of assault. The judgment fails to recognise that aberrance does not ensure that these acts are arbitrary, but rather, this is often a result of progress to full-blown sexual violence if unchecked.
Why this judgment matters: the far-reaching consequences
One of the worst consequences of the ruling is the legal precedent that it creates for future sexual violence cases. Such judicial ruling is bound to be in the consideration of lower courts when they are applying similar cases, but unfortunately, a judgment such as this is an excellent reference point for the defense lawyer who will find it useful at the trial for arguing for less charges in the case of attempted sexual assault.
Because if courts do not treat the obvious acts of sexual aggression as attempts at rapes, then by mistake they create a loophole which could be beneficial to culprit if they are sentenced for lighter punishment thus reducing the severity of such offenses.
Sexual violence cases in India already face major legal hurdles, including delays in trials, social stigma, and insensitive legal proceedings. Courts which would only term flagrant sexual acts as “outraging modesty” or “aggravated assaults” give a fillip for these offenders to avail lesser punishments.
Further, this would give the survivors a disincentive from reporting such acts, knowing that the system does not consider their trauma. Even if such brave persons come out, such rulings can further encourage defense lawyers to plead that such a form of severe assault cannot be considered an attempt at rape, which might result in less punishment or acquittal.
Even if such brave persons come out, such rulings can further encourage defense lawyers to plead that such a form of severe assault cannot be considered an attempt at rape, which might result in less punishment or acquittal.
The Indian judiciary has often been criticised for its inconsistent and patriarchal approach to sexual violence. Such rulings would prove weird in nature, as courts, while issuing such incongruous judgments, go a long way toward undermining the public trust in a system. Survivors, activists, and legal experts have campaigned long for more survivor-centric judgments; however, this ruling adds to an already growing belief that the system would be stacked against victims, especially women and children.
Impact on survivors of sexual violence: the psychological and social consequences
It should be a court of justice and closure for the survivor of sexual violence. When judges belittle grievous offenses to lesser crimes, it reopens the traumatising wound and affirms the acts of the perpetrator. Most survivors have great problems with PTSD, depression, and anxiety; however, the knowledge that there might be little or no punishment for someone who attacked them, produces severe emotional distress, suicidal thoughts, and disillusionment with the justice system. On top of it all, the dismissive attitude of the legal systems creates further psychological trauma, which worsens the chances of recovery for the survivors.
Sexual violence has already resulted in an abysmally lower reporting rate. The National Crime Records Bureau (NCRB) data suggest that about 77% of this crime goes unreported due to the fear of social stigma, faithlessness in the legal system, and victim-blaming. The Allahabad HC judgment has the potential to add to this by further strengthening the already dangerous message to survivors: you may go to the courts after you’re assaulted, you’ve been through this ordeal; now go report it, and yet you can be made to feel it’s nothing. Courts trivialising clear strong cases of sexual aggression communicates to these survivors that they have been better off silent.
Implicit in this ruling is encouragement of victim-blaming, which happens to be among the most damaging socially. Courts in India have a long history of not believing survivors and asking questions such as whether they resisted enough and what they were wearing during the incident.
By reducing serious offenses to “modesty outrages,” courts undercut the serious treatment of “certain kinds” of sexual violence offenses.
By reducing serious offenses to “modesty outrages,” courts undercut the serious treatment of “certain kinds” of sexual violence offenses. Rape culture engenders women being held responsible for their own assaults, pushes survivors to “prove” their victimhood in court, and begins to normalises lesser punishments for sexual violence within the very society.
Judicial accountability: a call for legal reform
The term internalising the definition of attempt to rape in the legal system of India, however, would entail a more drastic change. The need to view sexual violation as a spectrum of harms instead of merely penetration will also have to be included within the courts’ perception of what actually happened. Judges must go through training in gender sensitisation so that they can appreciate the nuance of sexual assault, thereby giving due credence to survivor testimony.
The laws on sexual violence should also have an amendment laying down harsh punishment for an attempted sexual assault even if penetration is not established. Courts should justify in writing, their description of any of the sexual offenses in published judgments to avoid future misuse of loopholes, and legal definitions have to be updated in terms of modern knowledge of trauma and the survivor experience, instead of being dictated by archaic technicalities.
The judiciary’s role in ending rape culture and sexual violence
A strong and well-functioning judiciary is the foundation of any democracy, and when the courts fail survivors, it only gives credence to a stronger culture of impunity. Sexual violence must be treated as a crime deserving of the utmost gravity and should not be subject to any legal loopholes benefiting the offenders. The ruling of the Allahabad High Court is a dangerous step backward. Unless Indian courts correct their course, we are in danger of normalising a situation where predators are protected, and their victims are silenced. The time has come for India’s judiciary to choose justice over mere technicalities-or else more and more survivors will be left to suffer in silence.
This ruling, joined by equally calamitous judgments emerging from Rajasthan and other parts of India, underlines an urgent need for judicial accountability and reform in sexual violence cases. Courts must center the justice of survivors over antiquated legal technicalities, ensuring that every case of sexual violence-whether penetrative or non-penetrative-is dealt with the full force of law. Until then, survivors will keep losing faith in the system, and justice will remain an illusion for many.
