(Image source from: Theweek.in)

Highlighting a profound absence of sensitivity, the Supreme Court has today halted a ruling from the Allahabad High Court in a child abuse case, in which the presiding judge noted that inappropriate touching and attempts to undress do not constitute an attempt at rape. The bench, comprised of Justice BR Gavai and Justice Augustine George Masih, expressed distress upon reviewing certain comments made in the judgment and requested responses from both the Centre and the Uttar Pradesh state governments regarding the issue. They remarked, "We regret to say that this reflects a complete insensitivity on the part of the judgment's author. This was not a spontaneous reaction; it was issued four months after the judgment was reserved. Hence, the author had ample time to contemplate. We are typically reluctant to grant a stay at this stage. However, given that the comments in paragraphs 21, 24, and 26 contradict legal principles and exhibit an inhumane perspective, we have decided to stay those particular observations," as stated by the court.

Solicitor General Tushar Mehta concurred with the bench, noting that "some judgments warrant a stay due to their reasoning." Justice Gavai emphasized, "This is a grave situation. The judge has shown total insensitivity. This was during the summons phase. We regret having to employ such stark language regarding the judge." The court took up the matter on its own accord following a concern raised by the organization 'We the Women of India', which criticized the high court's ruling. Additionally, the victim's mother has filed an appeal with the Supreme Court, which is now linked to the suo motu proceedings.

The controversial judgment was issued on March 17 by Justice Ram Manohar Narayan Mishra of the Allahabad High Court, while addressing the accused’s challenge to a lower court’s order summoning them under Section 376 of the Indian Penal Code, which pertains to rape. The ruling includes, "The accusations against Pawan and Akash state that they seized the victim's breasts and Akash attempted to remove the lower garments of the victim. They reportedly broke the string of her lower garments and attempted to drag her under a culvert, but they fled the scene when witnesses intervened. This incident alone does not suffice to infer that the accusers intended to commit rape, as no other actions have been ascribed to them that would further illustrate their alleged intent to violate the victim," as highlighted in paragraph 21 of the ruling that has now come under scrutiny.

The mother of the minor has claimed that the accused tried to give her daughter a ride and promised to take her home. According to the high court's ruling, “The accused stopped their motorcycle on a muddy path while heading to her village, where they began groping her. Akash then pulled her and attempted to take her under the culvert, tearing the string of her pyjami. Witnesses, Satish and Bhurey, who were driving a tractor behind, arrived on the scene after hearing her screams. The assailants threatened him with death while brandishing a homemade gun before escaping the area.” The lower court had charged the accused under IPC Section 376, which pertains to rape, in conjunction with Section 18 of the Protection of Children from Sexual Offences (POCSO) Act. However, the high court judge dismissed the charges by stating, “To establish an attempt to commit rape, the prosecution must demonstrate that it has advanced beyond mere preparation. The distinction between preparation and the actual attempt lies primarily in the level of determination shown.”

This ruling sparked widespread backlash, prompting people to question what constitutes an attempt at rape if actions such as trying to undress a girl or woman against her will do not qualify. Prominent jurist Indira Jaising was among those criticizing the outdated judgment and called for the Supreme Court to take notice on its own initiative. Notably, a bench consisting of Justice Bela Trivedi and Justice Prasanna B Varale had previously declined to consider a petition that challenged the decision of the Allahabad High Court. Advocate Rachna Tyagi, representing the mother of the survivor, communicated to the press that “The Supreme Court has acknowledged serious comments made by the Allahabad High Court and has put a stay on that judgment. Additionally, the Supreme Court has sent a notice to the Union of India.”