‘Insensitive, inhuman’: SC stays Allahabad HC controversial observations on rape
The top court had taken a suo motu cognisance of the matter after the contentious observations of the high court were brought to the notice of Chief Justice of India Sanjiv Khanna by "We the Women of India" collective
New Delhi: The Supreme Court on Wednesday took a strong exception to the Allahabad High Court’s recent views that mere grabbing of a woman’s breasts and pulling drawstrings of her “pyjama” wasn’t rape, and stayed the observations, outlining total “insensitivity” and “inhuman approach”.
Calling it a “very serious matter”, a bench of Justices BR Gavai and Augustine George Masih said, “In normal circumstances, we are slow in granting stay at this stage. But since the observations in paragraphs 21, 24 and 26 are totally unknown to canons of law and depict total insensitive and inhuman approach, we are inclined to stay the said observations.”
The top court had taken a suo motu cognisance of the matter after the contentious observations of the high court were brought to the notice of Chief Justice of India Sanjiv Khanna by “We the Women of India” collective.
The staying of the high court’s controversial observations made in a March 17 verdict would mean that they cannot be used in any judicial proceedings for seeking relief by the present set of accused or others. The high court’s verdict had come on a plea by two persons challenging a trial court’s order summoning them for the alleged offence of attempt to rape a minor.
The verdict had held that the attempt to rape offence was not made out against the accused. The high court had held they were liable to be summoned for the lesser offence of assault or use of criminal force to woman with intent to disrobe her.
Referring to the high court’s observations, solicitor general Tushar Mehta said, “This is one judgement I take a very serious exception.”
Attorney general R Venkataramani also appeared in the matter.
“It is a very serious matter,” Justice Gavai said, “exhibiting total insensitiveness on the part of the judge.” The bench added, “We are sorry to use such harsh words against the judge.”
Mehta said the chief justice of the high court was the master of the roster there and it was advisable that some steps were taken. “We have perused the order (of the high court). We are at pains to say that some of the observations made in the impugned order and particularly in paragraphs 21, 24 and 26 depicts a total lack of sensitivity on the part of the author of the judgement,” the bench said.
The apex court said it was not as if that the verdict was dictated at the spur of the moment in the court itself. The high court had reserved its verdict in the matter in November last year and after almost four months, the judgement was pronounced, it added.
The bench said it was clear that the judge had authored the verdict after application of mind. The top court issued notices to the Centre, Uttar Pradesh government and the parties before the high court in the matter seeking their responses in the suo motu proceeding.
The registrar (judicial) of the apex court was directed by the bench to communicate its order to the registrar of the Allahabad High Court following which it would be “immediately” placed before the chief justice there.
The high court’s chief justice was urged to examine the matter and take such steps as he deemed proper. The bench said the matter would be heard after two weeks.
During the hearing, one of the advocates appearing in the matter said they moved a plea against the high court order.
The bench said the plea would be heard along with the suo motu proceedings. Another advocate said they would file an application on behalf of the victim’s mother.
The March 17 ruling had also said that such an offence fell under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked.
Justice Ram Manohar Narayan Mishra’s verdict came on a petition filed by two persons challenging the order of a special judge in Kasganj through which they were summoned under Section 376 (rape) of the IPC among other sections.
It came on record that an application was moved before the court of special judge, POCSO Act, alleging that on November 10, 2021, she (informant) was returning from the home of her sister-in-law along with her 14-year-old daughter.
It was alleged that accused Pawan, Akash and Ashok, who were from her village, met her on the way and offered a lift to her daughter. The accused allegedly stopped their motorbike on the way to her village and started grabbing her breasts. Akash dragged her and tried to take her beneath the culvert and pulled the drawstring of her lowers.
The high court said the alleged actions of the accused Pawan and Akash was “not sufficient to draw an inference that the accused persons had determined to commit rape” on the survivor as “apart from these facts no other act was attributed to them to further their alleged desire to commit rape on the victim.”
