New Delhi: Legal experts Friday deplored the Allahabad High Court’s observation on what constitutes a rape charge, calling for a restraint by judges and underlining the dip in public confidence in the judiciary due to such statements.
The high court had ruled that actions like grabbing of breasts and pulling the string of a “pyjama” or lowers of a woman did not amount to rape.
Senior advocate and former additional solicitor general of India Pinky Anand pointed out in the present day and age, particularly in the aftermath of cases such as Satish vs. State of Maharashtra where the Supreme Court deprecated the dilution of sexual crimes, the Allahabad high court ruling diluted a heinous crime of attempt to rape which was a travesty of justice.
“The case based on the facts such as grabbing breasts, pulling the strings on her pyjama, and trying to drag her beneath the culvert and the fact that they only ran away due to intervention, falls squarely in the category of attempt to rape, where all possible actions have been taken to rape an 11-year-old girl,” she told PTI.
Anand declared a time had come for a “reawakening”.
“Violators of the law and offenders against women and children cannot get away and the judgment clearly errs by ignoring this. I am sure that appropriate reversals would be made to such a judgment and justice will be done,” she added.
Senior advocate and Supreme Court Bar Association president Kapil Sibal took to X, saying, “God save this country with such judges adorning the Bench! The Supreme Court has been too soft in dealing with errant judges (sic).”
Sibal subsequently said judges, especially those from the high courts, should refrain from making such statements, as it would “send wrong message to the society and people will lose faith in the judiciary”.
“I think giving such controversial statement is improper, because in current time, whatever the judges say sends a message to the society. If the judges, especially those from the high courts, give such statements, it will send wrong message to the society and people will lose faith in the judiciary,” he said.
Senior advocate Sonia Mathur said the judgment was “not legally right” for the reason that facts of the case clearly reflected the intent of the accused persons, particularly considering the stage of proceedings.
“At the stage of summoning only a prima facie view has to be taken and on these facts to say that case of “attempt” is not made out is against basic principles.
Secondly, intent to commit an offence, or mens rea, is a crucial element that can only be proven in a trial to establish guilt. For high court to decide the issue in revision jurisdiction was totally wrong,” she said.
Senior advocate Vikas Pahwa said the interpretation of the Allahabad High Court appeared to set a concerning precedent by narrowly defining what constitutes an attempt to rape.
He said that the alleged actions of “grabbing breasts, pulling down the pyjamas, and dragging the girl towards the culvert” strongly indicated an intent to commit rape, arguably surpassing mere preparation and entering the realm of attempt to rape.
“Decisions like this risk undermining public confidence in the judicial system’s commitment to protecting victims of sexual violence. They may also discourage survivors from coming forward, fearing that their experiences will be minimized or dismissed. It is imperative that the judiciary adopts a more victim-centric approach, ensuring that actions indicative of an intent to commit rape are appropriately recognised and prosecuted to uphold justice and deter potential offenders,” Pahwa said.
He further said that at the summoning stage, courts typically assess whether there is a prima facie case based on the allegations, without delving deeply into the evaluation of evidence.
“By re-evaluating the nature of the offence at this preliminary stage, the high court may have overstepped, as such determinations are generally reserved for the trial phase,” he said.
The 2021 case has an 11-year-old girl survivor from Uttar Pradesh’s Kasganj and involves two accused men.
Allahabad High Court bench of Justice Ram Manohar Narayan Mishra ruled mere grabbing of breasts and pulling the string of a ‘pyjama’ do not amount to offence of rape but such offence falls under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked.
PTI
