The judiciary is the fulcrum of justice. The most vulnerable and the victims of crimes are not only hopeful that their rights will be ensured by the judiciary but are also dependent on it. However, when judges fail them, it erodes public confidence in the legal system, which in turn discourages victims from coming forward. The recent judgment by the Allahabad High Court, which held that abducting an 11-year-old child, dragging her below a culvert away from the road, grabbing her breasts, and pulling down her clothes by the accused did not constitute attempted rape, is a travesty of justice.
If this isn't an attempt to rape, then what is? By downgrading the charge to aggravated sexual assault, the court not only minimised the crime's severity but also trivialised the child's trauma.
The litmus test of a society's growth and progress is how effectively it upholds justice. The essence of a civilised society rests upon the Constitution and the rule of law - and any failure to uphold them is, in itself, a failure of civilisation. Yet, when this role begins to blur under the weight of inconsistent interpretations of law, personal opinion and biases, overreach, or even a complete lack of responsibility and accountability, it raises unsettling questions. Judges are public servants entrusted with the most important role in society by the public: to be the guardians and sentries of constitutional values and the rule of law. Their performance needs to be transparently scrutinised by the people.
Who will guard the guardians when the custodians of justice bring their own interpretations to override what the law - the will of the people laid down by Parliament - clearly provides?
A Grave Judicial Failure
Justice Ram Manohar Narayan Mishra's highly irresponsible and atrocious ruling relied on a problematic interpretation of the law, arguing that the accused had not gone beyond the "stage of preparation" to commit rape and that there was no material evidence to prove an intent to commit penetrative sexual assault. However, this insensitive approach not only risks dehumanising the survivor's lived experience but also overlooks the brutal realities of sexual violence rampant in our country. Attempted rape need not require penetration; the intent and actions of the perpetrator should be sufficient to constitute the crime.
The absolute disregard of the victim's trauma and the witness testimonies reduces her trauma to a question of legal definitions rather than acknowledging the full extent of the harm inflicted. A child has been stripped of fundamental rights to dignity, justice, and protection. The law must serve to protect children, not let perpetrators escape harsher punishment.
This judgment also reflects a broader pattern in which courts fail to consider the psychological impact of sexual violence. The Supreme Court has previously ruled that "modesty" and "dignity" must not be assessed solely through physical violation but through the victim's trauma and the perpetrator's intent. Yet, by reducing the charge, the Allahabad High Court effectively diminished the crime's severity and set a dangerous precedent.
When Hypertechnicality Overrides Justice
The acquittal of a serial rapist by the Madhya Pradesh High Court in 2018 serves as a stark reminder. Four years after being sentenced to death for abducting and raping an eight-year-old girl, the man walked free and raped an 11-year-old hearing- and speech-impaired girl last month. The HC had overturned the lower court's 2014 verdict on technical grounds, stating that as the girl's father was present during the identification parade, it could have influenced the result.
In another case involving the alleged kidnapping and sexual assault of a 14-year-old girl, a trial court convicted the 22-year-old accused under BNS Section 63 and Section 4 of the POCSO Act, sentencing him to life imprisonment. Since POCSO deems any sexual act with a minor as rape, consent was legally irrelevant. However, the Delhi High Court overturned the conviction, holding that the victim's use of the phrase "sambandh banana" did not conclusively indicate penetration. This narrow reading of language allowed legal technicalities to override the very intent of the law.
Jurisprudence holds that it is better to let a hundred guilty go free than to punish one innocent person. However, the same holds true for justice. A single act of injustice allowed anywhere will perpetuate injustice everywhere. One wrong judgment, especially from a higher court, can set dangerous precedents.
There is an urgent need for judges to adopt a victim- and law-centric approach and do away with hypertechnical legal barriers. Procedural technicalities must not become an enabler of injustice. When judicial errors allow criminals to walk free, the justice system becomes an enabler of violence rather than a deterrent. Victims of sexual violence need the assurance that the law will protect them. While the scars of assault may never fully heal - and the sense of wholeness may never return - judges have a duty to act with fairness and ensure swift justice.
The Reality of Violence
Every day, thousands of women and children endure rape, assault, harassment, and bullying. According to the National Crime Records Bureau (2022), 64,469 cases of child sexual abuse and 38,444 cases of child rape were reported - amounting to seven children sexually abused and four children raped every hour. As of January 2023, 243,237 child sexual abuse cases were pending in fast-track courts, and of the 268,038 cases under trial, only 3% (8,909 cases) resulted in convictions. These numbers, already staggering, barely scratch the surface - countless cases go unreported, particularly within families and communities where silence is enforced, and where nearly every girl and woman has encountered some form of sexual violence in her lifetime.
When Justice Is Denied
The erosion of trust in the judiciary is driving victims of sexual violence into silence. Many do not report their assaults, and those who do are fed up with a legal system that neither punishes offenders nor supports those who suffer. When justice is denied, the victim endures lifelong trauma, forced to relive the horror every day while grappling with self-blame. At first, they ask, What if? - only to later question, Why did I trust this unjust system? Revictimisation by the justice system must end.
Repeated acts of violence - and the failure to punish them - create a culture of impunity where society becomes numb to the rage, pain, and horror that any human should feel when a child is assaulted. When the judiciary, law enforcement, and those entrusted with upholding justice turn a blind eye - or worse, shift blame onto victims - they do more than erode the gravity of these offences. This burden of blame and shame must be reversed.
When courts misinterpret laws designed to protect victims, they betray their duty. Judges are supposed to deliver timely justice to victims, yet the scales remain heavily tilted in favour of the accused, reducing victims to mere footnotes in their fight. Where does the buck stop? What happens to judges who pass orders that let perpetrators walk free on flimsy grounds?
Justice is not a privilege; it is a fundamental right. As citizens of this country, we deserve a legal system that encourages the prevention of crime through reaffirmation of laws and deterrence. We demand that this right be upheld - not as an afterthought, but as the judiciary's foremost responsibility. Those who neglect this duty must be held accountable.
We deserve a justice system that prioritises prevention over punishment. Prevention before protection, protection before prosecution, and prosecution that reinforces prevention - creating real deterrence in society and dismantling the very ecosystem that enables such crimes. Without systemic and systematic reforms at scale for accountability, the cycle of impunity will continue, and victims will be left to navigate a legal system that fails them at every turn.
(Bhuwan Ribhu is a child rights activist, advocate, and author working to end impunity against child sexual abuse and exploitation through the Just Rights for Children network)
Disclaimer: These are the personal opinions of the author
