SC mulls guidelines to curb insensitive judicial remarks in sexual assault cases

New Delhi: The Supreme Court on Monday signalled that it may frame comprehensive guidelines for high courts and trial courts on observations made during sexual assault proceedings, warning that careless judicial comments can create a “chilling effect” on survivors, their families and society.

A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi made the remarks while hearing suo motu proceedings triggered by concerns over “insensitive” observations in a March 17 order of the Allahabad High Court. During the hearing, several lawyers informed the bench that similar comments have been surfacing across courts.

Senior advocate Shobha Gupta, appearing for an intervenor, cited a recent instance in which the Allahabad High Court remarked that the fact that an incident occurred at night amounted to an “invitation” to the accused. She also referred to cases from the Calcutta and Rajasthan high courts. Another lawyer reported a fresh incident earlier on Monday in a trial court, where several people were allegedly present during an in camera hearing and the survivor was harassed despite confidentiality requirements.

“If you can cite all these instances, then we can consider issuing a set of comprehensive guidelines. Any observations of this nature can have a chilling effect on victims, their families and the society at large.

Also, at times, such modalities are also adopted to make them withdraw the complaints,” the Chief Justice said. He added that while high court remarks draw attention, similar observations in trial courts likely go unnoticed, prompting the need for broader directions.

The bench asked lawyers to file brief written suggestions ahead of the next hearing. It also reiterated that it had taken suo motu cognisance of the Allahabad High Court’s March 17 order, which held that “mere” grabbing of a minor girl’s breasts, breaking the string of her pyjamas and attempting to pull down her lower garment were insufficient to infer an attempt to commit rape.

Referring to the facts of the case, the Chief Justice said the Supreme Court will set aside the high court’s order and allow the trial to continue. The bench was informed that the high court had overturned a trial court decision framing harsher charges under rape provisions of the IPC and instead directed charges under Section 354B, which deals with assault or use of criminal force with intent to disrobe and carries a punishment of three to seven years and a fine.

To prevent prejudice to the survivor, the Supreme Court stayed the operation of the high court order. It directed that if the trial court issues a summons, it must summon the accused under Sections 376 and 511 of the IPC and under POCSO, without being influenced by the high court’s conclusions. The bench clarified that these directions do not indicate guilt.

The court also noted that the accused had twice been served notices but had not appeared before the Supreme Court. Senior advocate H S Phoolka said the accused were attending trial court proceedings and were fully aware of the matter. The bench directed the local SHO to convey the information and allowed the accused the option to join the next hearing, adding that the matter would not be adjourned further over service issues.

The case concerns allegations that three men stopped a woman and her 14-year-old daughter, grabbed the minor’s breasts, pulled the drawstrings of her clothing and attempted to drag her beneath a culvert. The Allahabad High Court had found these facts insufficient to infer determination to commit rape and suggested lesser charges under Section 354 IPC.

The Supreme Court initiated proceedings after receiving a letter from the “We the Women of India” collective. In a March 26 hearing, a bench led by Justice B R Gavai described the high court’s observations as “totally unknown to the canons of law” and reflective of an “inhuman approach.”