Provocative dress not licence to outrage modesty: Kerala HC

The Kerala High Court Thursday expunged the controversial observations made by a Sessions Judge who had ruled that sexual harassment case would not prima facie stand if the victim was wearing a “sexually provocative dress”.

A Kozhikode Principal District and Sessions Judge S Krishnakumar had made the controversial observations while granting bail to activist Civic Chandran in a sexual harassment case.

Justice Kauser Edappagath of High Court upheld the grant of anticipatory bail to Chandran but chose to remove the controversial remarks in the order.

The Court was hearing a plea moved by the Kerala government challenging the order granting bail to Chandran who was charged with committing offences punishable under sections 354 A(2) &341 and 354 of the Indian Penal Code.

The prosecution case is that on February 2020 at 5 pm, a cultural camp was organized by a group named “Nilanadatham” in Kadal veedu at Nandi beach. After the function, while the defacto complainant was taking rest near the seashore, the accused forcefully embraced her and asked her to sit on his lap. The accused also pressed the breast of the woman, thereby outraging her modesty.

The complainant registered a case only in July 2022 admitting that she was apprehensive and ashamed.

The Session Court order passed by judge S Krishna Kumar stated that to attract the offence under Section 354A, there must be some unwelcome sexual advances but in the instant case, the photographs of the complainant showed her "exposing herself in provocative dresses".

“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 Court said.

On August 24, the High Court had stayed the the controversial order, observing that the Sessions Judge seemed to have relied on irrelevant material while passing the order.

The appeal filed by the State through Additional Public Prosecutor P Narayanan, contended that the Session Court order granting bail is against the facts and circumstances of the case, thus amounting to an infringement of the personal liberty of the survivor and violation of the right to life guaranteed under Article 21 of the Constitution of India.

Reference was made to the decision of the Supreme Court in Aparna Bhat & ors. v State of Madhya Pradesh in which it was held that the dress, behavior, or past “conduct” or “morals” of the procesutrix, should not be considered while granting bail.

It was further stated that the court below flouted all the guidelines issued by the Supreme Court and granted pre-arrest bail to the accused by making observations which have been deprecated by superior courts.

Further, it was submitted that sexually provocative dressing of a victim cannot be construed as a legal ground for absolving an accused from the charge of outraging the modesty of a woman, which is highly insensitive and insulting.

It was also contended that the accused had committed a similar offense and is in the habit of molesting women. That being so, such an accused is not entitled to get discretionary relief as mandated under section 438 of the Code of Criminal Procedure (CrPC)

The State government has also appealed the bail granted by the same court to Chandran in a different sexual harassment case in which it was observed that Chandran, being an anti-caste social activist, would not have knowingly touched or sexually harassed a woman belonging to a Scheduled Caste/Scheduled Tribe.

Interestingly, the Sessions Judge who delivered the order was transferred to a Labour Court in Kollam though that decision was also, subsequently, stayed by the High Court.