Sexual harassment has nothing to do with woman's dress; even women in burqa molested: Lawyers on Kerala Court's "provocative dress" order

A recent order passed by a court in Kerala sparked outrage, triggered rows and re-ignited the discussion surrounding judicial outlook towards crimes against women.

The contentious verdict passed by Kozhikode Sessions Judge S Krishna Kumar and running into merely 4 pages, granted anticipatory bail to writer-activist Civic Chandran a sexual harassment case.

However, what sparked outrage was that the judge said in his order that a case of sexual harassment complaint Section 354A of the Indian Penal Code (IPC) will not prima facie stand if the woman was wearing a “sexually provocative dress”.

“In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused," the order stated.

The Sessions Court's reliance on what it considered to be the survivor's tendency to wear "sexually provocative" clothes to assess a sexual harassment case under Section 354 of the IPC has been met with condemnation from all corners.

The legal community in particular has been almost unanimous in their criticism of the observations in the order with many expressing exasperation and calling for more judicial training and sensitisation.

Speaking to Bar & Bench, Senior Advocate Vikas Pahwa pointed out the most obvious flaw in the reasoning of the Court, terming it as "absurd and preposterous"

"The act of molestation and outraging the modesty of a woman has nothing to do with provocative dresses. What is provocative is subjective and may differ from person to person. Women are molested even when they are wearing burqa," he pointed out.

"For prosecuting an accused for outraging the modesty, what has to be seen is the criminal intent and his knowledge that the act in question would outrage the modesty of the woman, which is independent of the dress of the victim. This observation of the Sessions Judge is infelicitous and shall have an adverse effect on the understanding of such serious crime against women and thus requires to be set aside," Pahwa added.

Senior Advocate Pinky Anand echoed the same sentiment condemning the victim shaming and exposition on classification of acts/dresses of women while deciding sexual harassment cases.

"It is so typical of such aberrant judgements to foist blame on the victim. When are we going to wake up to the stark reality of shouldering responsibility for our own wrongs. Victim shaming and blaming has to be effaced. If a man has assaulted a woman, there can’t be a chant that the woman has by her actions or dressing been responsible for attack on herself," she asserted.

Senior Advocate Geeta Luthra opined that such judgments were a reflection of the thought process of the society and said that there is a need to implement continuing education and training to change the mindset of judges and other decision makers.

"If many of our citizens have the same mindset, then obviously the judges are going to be, however repugnant it may be to our minds, a reflection of that mindset. So how do you change the mindset? What is very important is continuous judicial training for judges which imbibes sensitivity which would go towards changing mindsets," she said.

She pointed out that it is not just the layperson but also other decision makers and even ministers who carry and propagate the same ethos.

"We have had ministers who have said that women shouldn't go out in the dark and other things which reflect the mindset that does not respect or accept a woman's bodily autonomy or dignity. How do you change the ethos?," she pondered.

Responding to a question on whether it is at all surprising that this order came from a State which regularly boasts of high literacy rates and an impressive sex ratio and female participation in the labour force, Luthra answered in the negative.

"I don't think one should be totally surprised. In India, there are pockets and pockets where you will realise that people's mental growth on women's empowerment and women's dignity is lacking. So why not Kerala?," she said.

Senior Advocate Sanjoy Ghose highlighted how patriarchy permeates every level and attempts to hammer in the idea that men are helpless to resist any external stimulus; in this case, the clothing of the woman.

"This shows the issues with the patriarchal construct that a man is helpless to external stimuli or external deterrent. In this case, the external stimulus is the provocative dress. We are always trying to always locate the fault in the man in some external source, and the external source is always a woman, a woman who is blamed or given unnecessary credit," he said.

Ghose also critiqued another order delivered by the same Sessions Court judge, just 10 days prior, granting anticipatory bail to the same accused in another case of sexual harassment as well as offences under the SC/ST (Prevention of Atrocities) Act.

The Court in that order had observed that being an anti-caste activist, it was highly unbelievable that he would touch the complainant knowing that she belongs to a Scheduled Caste.

"A person may have a lot of views in public life but in private, in his interpersonal relationships, he may be a totally different person. If a man works for a women's NGO, does it mean he will never rape a woman? How can that be judicial reasoning? With greatest respect, this shows a pre-historic kind of awareness of gender issues," he said.

It is pertinent to note that there are few, if any, objections to the grant of bail itself.

Advocate John S Ralph, a criminal lawyer practicing in Kerala, pointed out that granting bail would have been reasonable since there was a long delay in lodging the complaint and because the offence carries a maximum of a 3-year sentence. However, he stressed that the observation of the Court regarding the clothing of the woman to hold that Section 354A is not attracted, is misplaced.

"The assumption that sexual interest in indicated by wearing provocative clothing is purely subjective and depends upon the state of mind of the accused. The finding that if the woman is dressing in a provocative manner, Section 354A will not be attracted seems to be misplaced," he said.

Luthra too agreed that the presumption of innocence and the two year delay alone could have been sufficient to grant bail, especially in light of the Supreme Court's stand on bail being the rule and jail the exception.

"What is disturbing is the basis on which he has granted bail, which is a woman wearing provocative dresses. Another aspect is the observations on how because there was no overt sexual remark or obscene language or physical touch, 354A wouldn't stand. At the stage of granting bail, a judge need not dilate the issue so much," she elaborated.

To a question on what needs to change, apart from more judicial training and sensitisation camps as suggested by Luthra, Ghose stressed on the need to address the issues in the current system of judicial appointments.

"Unfortunately, the way the system of judicial appointments is, we always have a male dominated appointment system. Even if certain women judges are appointed in the High Court or Supreme Court, even then its not seen like a woman is appointed on her rights or her merit, it is kind of like a great charity, as if they have to also be beholden to the male judges of the collegium that is appointing them. Because we have this male dominance, we also have this patriarchal construct that permeates everything," he pointed out.

However, he was firm in his belief that things are changing and that it will continue to improve, albeit at a slow pace.

"It will improve. You are a woman doing legal reporting at one of our premier legal sites. That is a beginning just like the fact that more and more women are coming into the legal profession even compared to just 10 years back," Ghose said.

He recalled the answer given by Ruth Bader Ginsburg, former judge of Supreme Court of the United States, when asked how many of the nine judges on the Court should be female, and at what point there would be enough women on the bench

Ruth Bader Ginsburg had a simple answer: "When there are nine. Nine men was a satisfactory number until 1981"

He said that even though change would be slow paced due to the present collegium system of judicial appointments, one needs to hold on to hope.

"Because of the way the collegium system works, people with fresh ideas or people who are very vocal about changing the system, will never make it to the Bench. We won't be seeing overnight miracles in gender justice. But if we don't hope, we can't survive, we can't wake up every morning, put on our gowns and go to court. We have to hope that we are working towards a better tomorrow," he said.

Whether on not it is because of the public outcry or the legal criticism of the Court's order, the Kerala government has filed appeals before the Kerala High Court challenging both the orders granting bail to Chandran.