Sexual harassment charge won’t stand if woman was wearing ‘sexually provocative’ clothes

The case relates to Chandran, the 74-year-old activist and writer, who was accused of sexual harassment who was accused of sexual harassment at the Nandi Beach in 2020 by a young author.

The Kozhikode Sessions Court noted that the sexual harassment offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing "sexually provocative clothes" when granting anticipatory release to author and social activist Civic Chandran in a sexual harassment case.

S Krishna Kumar, the District Sessions Judge, based his view on the photographs the accused provided with his bail plea. The photographs of the de facto complainant were taken from her social media account. The Kozhikode Sessions Court order states “The photographs produced along with the bail application by the accused would reveal that the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So, Section 354A will not prima facie stand against the accused". The court noted that it is thus a fit case wherein the accused can be granted bail. The physically challenged 74-year-old accused's ability to forcibly place the de facto complainant in his lap and touch her breasts was also questioned by the court.

The court said that it is fairly evident from the language of Section 354 that the accused must have intended to offend a woman's modesty. Physical contact and advances comprising unwanted and explicit sexual overtures are also required in order to qualify as sexual harassment.

In a camp gathered at Nandi beach in February 2020, the accused, according to the prosecution, made sexual advances toward the de facto complainant, a young female writer, and attempted to outrage her modesty. The Koyilandi police registered a case against the accused for offences under Sections 354A(2), 341 and 354 of the IPC.

The court stated that it is a well-established rule that where there is a significant delay in filing a FIR, the delay must be well justified. In this case, the FIR was filed two years after the alleged crime date.

Advocates P.V. Hari and Sushama M, who were representing the accused when the Bail Application was heard by the Session Court, argued that the case against the accused was false and had been completely fabricated by some of his enemies in order to take revenge. Additionally, it was argued that the prosecution should explain why the case was not filed sooner given that it was almost two years since the alleged incident.

It was further contended that the de facto complainant was accompanied at the place of occurrence by her partner and that several people were present at the time of the alleged incident, but that no one made a complaint against the accused. The Public Prosecutor argued that the accused had once been the subject of a similar sexual harassment case and thus bail should not be granted. In the earlier case, the court had granted anticipatory bail to Chandran on 2nd August on the grounds of his old age and health problems. Similar charges were filed against the activist in this case as well.

The order welcomed several criticisms and people even questioned whether, after 75 years of independence, the country is indeed progressing. The observations of the court justify the atrocities against women, pointing at their dresses. This is unfortunate, frustrating and sends a very dangerous message.

The Court noted that if the woman was wearing “sexually provocative clothing” then, the charge of sexual assault will not stand. This leads to the question of what exactly constitutes “provocative clothing”, who decides this and more importantly why is there so much reliance placed on the kind of clothes that the victim was wearing to determine the offence of sexual assault. This implies a very disturbing idea that the onus of sexual provocation is on the victim rather than the accused who got sexually provoked and assaulted her in the first place. The comments made by the court operates to ignore and invalidate the experience of the woman who was sexually assaulted.

It is deeply disheartening to realise that a court which is meant to uphold the law, is observing something based on a total misinterpretation of the law. A simple reading of the provision would clearly indicate that the victim's clothes have no relevance on the sexual assault charge.

Being sexually assaulted is a traumatic experience that alters the victim's life and leaves a lingering memory. It should be taken into account that it is very challenging and traumatic for victims to even bring up the issue and report the same. In such a scenario, when sexual assault crimes are reported, it is crucial to approach each case with much care and consideration.

It is really unsettling to know that today's courts are stating remarks about the victim's clothing and even go so far as to infer that the accused was provoked into the sexual attack because of the victim's clothing. This further perpetuates the idea of victim blaming and victim shaming that already exists in our society. It is extremely hard to accept what was stated by the court in the order especially for women because most women see themselves in the facts of this case as if it is their own story. Thus, the bail order granted by the Kozhikode Sessions Court is a blatant disregard to an already punishing process.