A sessions court in Kerala, while granting anticipatory bail recently to an author and social activist in the State in a case of alleged sexual harassment, observed that the offence under Section 354A of the Indian Penal Code (‘Assault or criminal force to woman with intent to outrage her modesty’) is not prima facie attracted when the de facto complainant was dressed in ‘sexually provocative dresses’. (The Kerala High Court has since stayed the order of the sessions court). The sessions court had relied on photographs submitted with the bail application of the accused showing that the de facto complainant was wearing a dress that was ‘sexually provocative’ and hence, Section 354A would not be used against the accused. The observation was clearly an affront to a woman’s constitutional right to dignity, life and personal liberty, and privacy.
The ratio decidendi proclaimed by the sessions court judge is a (patriarchal) Freudian slip. In psychoanalysis, a Freudian slip is defined as an error in speech, memory or action that occurs due to the interface of an unconscious subdued wish or internal train of thought. Terming a woman’s dress as ‘sexually provocative’ is a result of the objectification of woman as an erotic quiddity. In this case, it is an unwitting sparking of a patriarchy that affected not only the individual judicial officer but also the entire socio-legal system.
The Supreme Court in Aparna Bhat vs The State Of Madhya Pradesh (2021) had held that “the use of reasoning/language which diminishes the offence and tends to trivialize the survivor [in gender violence cases] is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are deemed irrelevant, e.g. - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or ‘Indian’ women, or that she had called upon the situation by her behavior, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief.” The controversial comment of the sessions court judge is a clear violation of the guideline given by the Supreme Court of India.
