"Inhuman": Top Court Pauses "Grabbing Breasts Not Rape Attempt" Verdict

Underlining a "total lack of sensitivity", the Supreme Court today paused the Allahabad High Court ruling in a child abuse case, in which the judge had observed that the grabbing of breast and pulling the string of a pyjama don't amount to a rape attempt. The bench of Justice BR Gavai and Justice Augustine George Masih said it was pained to see some observations in the verdict and sought replies from the Centre and the Uttar Pradesh governments on the matter.

"We are pained to state that it shows a total lack of sensitivity on the part of the author of the judgment. It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras," the court ordered.

Solicitor General Tushar Mehta agreed with the bench and said "some judgments contain reasons for staying them". Justice Gavai said, "It is a serious matter. Total insensitiveness on part of the judge. This was at the stage of issuing summons! We are sorry to use such harsh words against the judge."

The court was hearing the matter suo motu after an organisation, 'We the Women of India', flagged the high court ruling. The victim's mother has also moved an appeal in the top court and it has been tagged with the suo motu case.

The judgment in question was delivered on March 17 by Justice Ram Manohar Narayan Mishra of Allahabad High Court. The judge was hearing the accused's challenge to a lower court order summoning them under Section 376 of Indian Penal Code, which deals with rape.

"...the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim," reads para 21 of the high court ruling, which has come under the scanner.

The minor's mother has alleged that the accused had offered a lift to her daughter and assured to drop her home. "The accused persons had stopped their motorcycle on muddy way, on way to her village they started grabbing her breasts and Akash dragged her and tried to take her beneath the culvert and broke the string of her pyjami. The witnesses Satish and Bhurey who were coming behind on a tractor reached the spot on hearing cries of her daughter. The accused persons threatened him with life by pointing a country made pistol to them and fled away from the place," the high court order says.

The lower court had summoned the accused under IPC Section 376, relating to rape, read with Section 18 of Protection of Children from Sexual Offences (POCSO) Act. Striking this down, the high court judge had said, "In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination."

The observations drew a wave of criticism, with people questioning if attempts to undress a girl or woman against her will do not qualify as a rape attempt, what does? 

Among the voices that flagged the regressive judgment was senior jurist Indira Jaising, who had called for a suo motu cognizance from the top court. 

Interestingly, a bench of Justice Bela Trivedi and Justice Prasanna B Varale had earlier refused to entertain a petition challenging the Allahabad High Court ruling.

Advocate Rachna Tyagi, legal counsel for the survivor's mother and Just Rights for Children, told the media, "The Supreme Court has taken cognizance of serious observations made by the Allahabad High Court and stayed that judgment. The Supreme Court has also issued notice to the Union of India," she said.