'Insensitivity': Supreme Court stays Allahabad high court's 'grabbing breasts not rape attempt' ruling

The Supreme Court today stayed the Allahabad High Court’s ruling in a child abuse case, criticizing it for a “complete lack of sensitivity.” The high court judge had controversially stated that acts such as grasping a breast and tugging at a pyjama’s string did not amount to an attempted rape. A bench comprising Justices BR Gavai and Augustine George Masih expressed strong disapproval of the judgment, calling it 'insensitive'.

"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."

After 'We the Women of India', an organisation, brought attention to the high court's decision, the court began hearing the case on its own initiative.  Additionally, the victim's mother filed an appeal with the highest court, which has been associated with the suo motu case.

Justice Ram Manohar Narayan Mishra of the Allahabad High Court gave the disputed ruling on March 17.  The accused was contesting a lower court summons under Section 376 of the Indian Penal Code, which addresses rape, before the judge.

"...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."

A surge of criticism followed the findings, with many wondering what constitutes a rape attempt if attempts to undress a woman or girl against her consent do not. 

Senior jurist Indira Jaising was one of those who raised concerns about the regressive ruling and urged the top court to take suo motu cognisance. 

It's interesting to note that a bench consisting of Justices Bela Trivedi and Prasanna B. Varale had previously turned down a plea against the Allahabad High Court decision.

Advocate Rachna Tyagi, who appeared for the survivor's mother, 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.