The observation of the Kozhikode District and Sessions Judge recently that a survivor herself was “exposing to dresses which have some sexual provocative one [sic]” while granting anticipatory bail to writer Civic Chandran in the case related to outraging the modesty of a woman has created a public outcry in Kerala.
While social media went into a tizzy over the observation, legal circles feel that the legal premises of the bail order was flawed.
The judge, it appeared, heavily relied on the dresses worn by the survivor to conclude that Section 354 (A) of the Indian Penal Code (IPC) (assault or use of criminal force to woman with the intent to disrobe her) will not prima facie stand against the accused. The term ‘sexually provocative’ is too general and a subjective one. There cannot be any yardstick on what is sexually provocative or otherwise. Sexually provocative dressing cannot be construed as a legal ground for absolving an accused from the offence of outraging the modesty of a woman, pointed out judicial sources.
The right to decide on what to wear and how to wear it is the natural extension of Article 21 of the Constitution which speaks about the right to life and personal liberty, they pointed out.
The conclusion of the judge that the 74-year-old physically challenged man cannot forcefully “put the de facto complainant on his lap and press her breasts” was a faulty one, and the act amounted to sexual overture. The accused was not a bed-ridden person but an active one in organising an event attended by the survivor. The alleged act of the accused amounted to seeking sexual favours and the case should have been considered in that perspective, pointed out legal sources.
Though the decision on granting bail is the discretion of the judicial officer concerned, the judge can grant or deny bail only on the basis of well-considered legal principles. The legal option available for the survivor and the prosecution is to challenge the order before the Kerala High Court, sources said.
