‘Shameful’ order involving 11-year-old girl caused outrage in India
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The Supreme Court of India stayed a controversial High Court order which held that “grabbing the breasts” of a minor girl and snapping the drawstring of her trouser did not amount to an attempt to rape.
The apex court called the judgement passed by Allahabad high court as “shocking” and “inhuman” in the case of alleged sexual assault of an 11-year-old girl on Wednesday.
In a 17 March ruling, the Allahabad High Court in Uttar Pradesh said that the offences by two men did not amount to attempted rape but “aggravated sexual assault”, a charge that carries a lesser punishment.
The top court said: "We are at pains to say that some of the observations made in the impugned judgment ... depict a total lack of sensitivity on the part of the author of the judgment”.
The two-judge Supreme Court bench of Justice BR Gavai and Justice Augustine noted that the order was “shocking”, especially because it was not delivered in the spur of the moment but had been delivered reserving for nearly four months.
The judges said the observations are "totally unknown to the tenets of law and depict total insensitivity and inhuman approach".
The apex court said it issued a notice to India's federal authorities, the state government in Uttar Pradesh (UP) and the parties before the High Court.
The Solicitor General of India, Tushar Mehta, appeared in the court and denounced the judgment as shocking.
The case involves an 11-year-old girl from Kasganj – a city in UP– who was walking with her mother when the two men, named only as Pawan and Akash, offered a lift to the girl to her village as they knew the family. However, they sexually assaulted the girl after stopping the motorcycle on the way.
"The accused persons stopped their motorcycle on the way to the village and started grabbing her breasts," the high court order said. It said that one of the men dragged her beneath a culvert and "broke her pyjama [trouser] string".
Her screams alerted passers-by, who intervened, forcing the attackers to flee.
A trial court had initially summoned Pawan and Akash on charges of rape under the Protection of Children from Sexual Offences (Pocso) Act.
However, the judge modified the charges to assault or use of criminal force with intent to disrobe.
The High Court ruling by Justice Ram Manohar Narayan Mishra presented the argument that “preparation” of rape was different from actual rape and the “prosecution must establish that it had gone beyond the stage of preparation”.
“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape,” Justice Mishra stated in the ruling.
“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.”
The ruling sparked outrage in India, with many warning that the ruling will send a “wrong message to the society”.
Federal Minister for Women and Child Development, Annapurna Devi, said the “ruling has no place in a civilized society”.
"Somewhere, this will have a negative impact on society, and we will discuss this matter further," she added.
Lawyer Indira Jaisingh told broadcaster Mirror Now said the allegations clearly amounted to “attempt to rape” in legal terms and there should be systematic review of such judgements by the Supreme Court.
“How do you prove intent? Intent is proved by actions which precede the actual act of rape,” she said.
Activist Shabnam Hashmi called the ruling “shameful”, adding: “The child was saved only because passers-by intervened. The judge does not see the intent to rape!”
Allegations of sexual abuse and rape is one of India’s rampant problems despite decades-long struggle to curb rising sexual violence against women.
Reports of horrific sexual assaults on women have become familiar in India, where police recorded 31,516 rape cases in 2022, a 20 per cent increase from 2021, according to the National Crime Records Bureau.
However, the real figure is believed to be far higher due to the stigma surrounding sexual violence and victims’ lack of faith in police, especially in rural areas.
Earlier this month, a 27-year-old Israeli tourist and a 29-year-old Indian homestay operator were gang-raped, in a deadly high-profile case involving international tourists.
A man was killed in the attack near Sanapur lake in Hampi, Karnataka.