The campaigners assert that the order trivialises crimes against women and children, reflecting a mindset that fails to recognise the fine line between attempted rape and rape, especially in cases where external intervention prevents the completion of the act.

A groundswell of outrage has erupted following a recent revision order by a single judge bench of the Allahabad High Court, with an online petition addressed to the Chief Justice of India (CJI) demanding immediate intervention. The petition, signed by a collective of citizens, social activists, writers, lawyers, and journalists, alleges that the order, delivered by Justice Ram Manohar Narayan Mishra in Criminal Revision No. 1449/2024 dated March 17, 2024, disregards contemporary jurisprudence and regresses the justice system by decades.

The case in question involves allegations of sexual assault against a minor survivor. According to the petition, the accused offered the minor a motorcycle ride, subsequently stopping near a culvert where they allegedly grabbed her breast, attempted to drag her underneath, and broke the string of her lower garment. The intervention of witnesses, who arrived on a tractor, prevented a potential gang rape, with the accused fleeing after issuing death threats and brandishing a firearm.

The trial court, acting on an application filed by the survivor’s mother under Section 156(3) of the Criminal Procedure Code (CRC), summoned the accused under Section 376 of the Indian Penal Code (IPC) and Section 18 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). However, the Allahabad High Court, in its revision order, modified the summoning, stating that the accused were liable to be summoned for “minor offences” under Section 354(b) of the IPC read with Section 9/10 of the POCSO Act, effectively downgrading the charge from attempted rape to molestation and disrobing.

Alarming rise in child abuse

The petition vehemently contests this modification, arguing that the High Court’s interpretation ignores the gravity of the accused’s actions and the intent behind them. “By employing an archaic and deeply misogynistic interpretation, the court has concluded that the accused’s actions constituted nothing more than molestation and disrobing,” the petition states. “Viewing the set of facts in the context in which they happened, obviously the grabbing of her breast and trying to drag her beneath the culvert and breaking the string of her pyjami (lower garment) are nothing else but ingredients of attempt to commit rape.”

The campaigners assert that the order trivialises crimes against women and children, reflecting a mindset that fails to recognise the fine line between attempted rape and rape, especially in cases where external intervention prevents the completion of the act. They argue that this ruling undermines the progressive strides made in gender justice jurisprudence, particularly the POCSO Act 2012, which was enacted to address sexual exploitation and abuse of children.

The petition highlights the alarming rise in child abuse cases in India, citing National Crime Records Bureau (NCRB) data that indicates an 8.7 per cent increase, with 162,000 incidents reported. It emphasises the judiciary’s responsibility to consider the vulnerability of children in such cases.

Furthermore, the petitioners criticise the High Court’s reasoning, which relies on century-old judgments from the colonial era. The order quoted judgments such as Rex v. James Lloyd (1836) and Express v. Shankar (1881), which emphasised the need for evidence of a “determination to gratify his passions at all events and in spite of all resistance” to establish an intent to rape.

Patriarchal Mindset

The petition counters this by citing a recent Supreme Court judgment, Criminal Appeal No. 2127 of 2009, which states that “the attempt to commit an offence begins when the accused commences to do an act with the necessary intention.” The petitioners argue that the High Court’s reliance on outdated judgments reflects a patriarchal mindset that views sexual assault as a mere gratification of male passion rather than an act of power and violence.

“These above quotes relied upon by the order are in complete contravention of established jurisprudence and are in fact reflection of patriarchal mind set, which sees, sexual assault not as crime, which is committed to establish power over women and children but as gratification of male passion,” the petition asserts.

The petitioners express concern over a “disturbing trend” within the judiciary, where perpetrators of crimes against the socially weak, particularly women, are shielded. They fear that this order will set a dangerous precedent, emboldening perpetrators and eroding hard-won protections enshrined in the POCSO Act.

In their appeal to the CJI, the petitioners demand the following:

• Suo Moto Cognisance: The Supreme Court should take suo moto cognisance of the matter and issue appropriate orders.
• Judicial Sensitisation: The judiciary must be regularly sensitised to the realities of sexual violence and the trauma inflicted on survivors.
• Exclusion of Biased Judges: Judges who have demonstrated patriarchal bias in cases of sexual violence should be excluded from handling such cases.
• Judicial Academy Reform: National and state judicial academies must revise their training programs to sensitise judges at all levels.

The petitioners emphasise that the order not only denies justice to the victim but also threatens to undermine progressive reforms aimed at strengthening women’s rights and ensuring gender justice. The petition underscores the urgent need for judicial reform and a shift in mindset to effectively address the pervasive issue of sexual violence in India.