Bas hua, judge sahab!

Feminists for Judicial Accountability

On 28 March 2025, 2600+ activists, academics, lawyers, journalists, artists and concerned citizens from across movements and different sections of society wrote to the Chief Justice of India regarding the recent revisional order (No. 1449/2024 dated 17th March 2025) issued by Allahabad High court in a POCSO case. 

While welcoming the fact that the Supreme Court has finally taken a suo-motu cognisance of the regressive order by saying that the order was ‘totally insensitive, inhuman’ and ‘unknown to the tenets of law’; the letter  notes that the revisional order was just one of the many manifestations of the misogyny that has become normalised across institutions. That while the SC has taken cognisance of this grave error, the issue still persists across legal institutions and will need a gender sensitive overhaul in order to function in a gender-just democratic and equitable institution. 

The letter notes that ‘there is a disturbing trend in society as well as in the judiciary, of shielding the perpetrator of crimes against the socially weak, especially women. Whether they be victims of domestic violence, sexual or communal crimes. This judgment is a striking example of such a trend and is likely to strengthen such an unfortunate and unfair trend.’

It further demands that: 

• The judiciary must be sensitized to the realities of sexual violence and trauma unleashed on survivors.

• We strongly urge that judges who have demonstrated their patriarchal bias while denying justice for the survivors and victims of sexual violence should not be assigned cases dealing with Sexual crimes.

The letter has been endorsed by groups like People’s Union of Civil Liberties, Forum Against Oppression of Women, Saheli Women’s Resource Centre, Feminists in Resistance, Reclaim the Night, Bebaak Collective, Catholic Association of Archdiocese of Delhi, All India Progressive Women’s Association, Sruti Disability Rights, All India Democratic Women’s Association, National Federation of Indian Women, Bailancho Saad, Uttarakhand Mahila Manch, Hazrat-e-Zindagi Mamuli, All India Feminist Alliance(ALIFA-NAPM) and many more.

It has also been endorsed by prominent citizens of the country like Syeda Hameed, Aruna Roy, Annie Raja, Uma Chakravarty, Beena Pallical, Kalyani Menon Sen, Suhasini Muley, Ranjana Padhi, Kumudini Pati, Kavita Srivasatava, Mariam Dhawale, Hasina Khan, Chayanika Shah, Maya Rao, Vani Subramanian, Meera Sanghamitra and many more.

Feminists for judicial accountability, a national forum formed by many organisations and individuals is also initiating this as a long term campaign demanding judicial accountability from all judiciary. 

28 March 2025

To,

The Hon’ble Chief Justice of India,​​​​​​​    

Supreme Court of India,

New Delhi.

Subject: Revisional order delivered by Hon’ble Ram Manohar Narayan Mishra, J. Allahabad High Court in Criminal Revision No. 1449/2024 dated 17th March 2025

We the undersigned citizens of India, social activists, writers, lawyers, journalist, from various sections of society thank you for taking suo moto cognisance of the above-mentioned order passed by the single judge bench of Allahabad High Court, as we are most anguished with the order which does not take into account the evolved jurisprudence and legislations passed in recent past and in fact, drags back our justice delivery system by at least a century.

We welcome the judgement passed by the Supreme Court bench headed by Justice B.R.Gavai, staying the above mentioned order of Allahabad Court, with observation that the said High Court order was “totally insensitive, inhuman” and “unknown to the tenets of law”. 

In this case, the allegation against the accused/revisionist is that they offered to give lift on motorcycle to the minor survivor, they stopped the motorcycle on the way near the culvert, grabbed her breast and tried to drag her beneath the culvert and broke the string of her pyjami (lower garment). On hearing her shrieks, the witnesses emerged on the spot who were coming behind on a tractor and challenged the accused persons who fled away after giving the witnesses threat to kill and pointed country made pistol towards them. This was obviously a case where gang rape would have taken place but for the fortuitous circumstances. 

The mother of the minor girl filed an application under Section 156(3) Cr.P.C. bearing date 12.01.2022 before the court of Special Judge, POCSO Act

The trial court summoned the two accused under Sections 376 as defined by the Indian Penal Code and Section 18 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The accused approached Allahabad High Court challenging the summoning order of the learned Special Judge POCSO Act, Kasganj, UP.

While modifying the summoning order the Hon’ble High Court, in its judgement, states that:

“This court finds that the finding of the learned court below with regard to offence of attempt to rape in respect of revisionist Pawan and Akash in the impugned summoning order is not sustainable and instead they are liable to be summoned for minor offence under Sections 354(b) IPC read with Section 9/10 of POCSO Act.”

We are most aggrieved with this order on two accounts.

Firstly because it completely ignores that offence is committed under Section 7 of POCSO Act 2012 read with section 18 and section 376 of IPC read with section 511 provisions.

By employing an archaic and deeply misogynistic interpretation, the court has concluded that the accused’s actions constituted nothing more than molestation and disrobing. Viewing the set of facts in the context in which they happened, obviously the grabbing of her breast and trying to drag her beneath the culvert and breaking the string of her pyjami (lower garment) are nothing else but ingredients of attempt to commit rape. 

By categorising it as a minor offence it trivializes the crimes against women and children. It is indicative of mindset which fails to comprehend the gravity and extremely thin line that exists between attempt to rape and the crime of rape, which did not succeed due to external intervention.

Thereby, it makes invisible the strides made by jurists, women and women’s organizations in evolving gender just jurisprudence over decades. Over the years we have also had Amendments and Sexual Assault laws with recommendations from Justice Varma Committee and have brought into force new legislations like POCSO Act 2012.  

The aim of this POCSO Act 2012, the special law, is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or in adequately penalised.  India has witnessed a staggering 8.7% increase in child abuse cases, reaching a total of 162,000 incidents, as reported by the National Crime Records Bureau (NCRB). The Judiciary has to take into consideration the vulnerability of children, while presiding over cases dealing with violence against children.

Attempting to commit rape, under Section 376 read with Section 511 of the Indian Penal Code (IPC), means attempting to commit the crime of rape, even if the act is not completed, and is punishable under Section 511 of the IPC. 

Secondly, we are also extremely aggrieved by the conclusion drawn by the said order and the reasoning provided for the same:

“This fact (above stated) 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.”

The reasoning provided by the said order, relies on century-old judgement from the colonial period while completely undermining and ignoring all the jurisprudence provided by the Supreme Court of India in recent past. The following are quotes from the two judgements.

Referring to judgement of Rex v. James Lloyd (1836) 7C and P 817 : 173 ER 141 the said order quotes from it the following:

Justice Patterson observed: “In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part”.

Referring to Express v. Shankar, (1881) ILR 5 Bom 403 the said order quotes from it the following: There the observations of M.Malyill J., which as quoted below, are very pertinent :

“We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events and in spite of all resistance.”

These above quotes relied upon by the order are in complete contravention of established jurisprudence and are in fact reflection of patriarchal mind set, which sees, sexual assault not as crime, which is committed to establish power over women and children but as gratification of male passion. It reveals a mindset which has no understanding of the social context in which the violence is being unleashed on women, and clearly completely lacks knowledge of trauma caused to the survivors of such crimes. 

It also reveals complete non-application of mind, by not taking into consideration evolved jurisprudence.

One recent Judgement of the Supreme Court of India, CRIMINAL APPEAL NO. 2127 OF 2009 while confirming the guilt of the accused appellant, in offences under Section 354 and Section 511 read with Section 376 IPC, has stated clearly that:

“The attempt to commit an offence begins when the accused commences to do an act with the necessary intention.”

It further states that: “Therefore, had there been no intervention, the accused appellant would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence.

There is a disturbing trend in society as well as in the judiciary, of shielding the perpetrator of crimes against the socially weak, especially women. Whether they be victims of domestic violence, sexual or communal crimes. This judgment is a striking example of such a trend and is likely to strengthen such an unfortunate and unfair trend.

If this judgement is allowed to prevail it will cause severe damage to rights of women, undermine all the progressive reforms to strengthen women’s rights, and all progress made to access gender justice.

This decision not only denies justice to the victim but also sets a dangerous precedent that will embolden perpetrators and erode the hard-won protections enshrined in POCSO.

To avoid recurrence of such orders from the Judiciary, 

• We request that the judiciary must be sensitized to the realities of sexual violence and trauma unleashed on survivors.

• We strongly urge that judges who have demonstrated their patriarchal bias while denying justice for the survivors and victims of sexual violence should not be assigned cases dealing with sexual crimes.

For more details contact saheliwomen@gmail.com; Sandhya(9820833422); Ranjana(9810201369); Poushali(9477171817); Anuradha(8860824559)