"Anti-Women, Causes Trauma To Victim Again": Kerala Govt Moves High Court Against "Sexually Provocative Dress" Remark In Bail Order

The Kerala Government has moved the Kerala High Court challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case. The Kozhikode Sessions Court's order passed on August 12 had created a massive social outrage as it had observations to the effect that sexual harassment complaint will not stand if the woman was wearing a "sexually provocative dress".

In the Criminal Miscellaneous Petition filed under Sections 482 read with 439(2) of the Code of Criminal Procedure,  the State has challenged the findings and reasoning given by the Sessions Court as suffering from "illegality, lack of sensitivity, sobriety and perversity".

The Prosecution Case is that in February 2020, the accused made sexual advances toward the de facto complainant, who is a young female writer and tried to outrage her modesty in a camp convened at Nandi beach. The Koyilandi police have registered a case against the accused for offences under Sections 354A(2), 341 and 354 of the Indian Penal Code.

During the course of the investigation, the accused had sought anticipatory bail, and despite the objection from the prosecution and the victim, bail was granted. While granting anticipatory bail, the Lower Court had observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.

"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 Kozhikode Sessions Court noted in the impugned order.

It is averred in the petition that the conclusion drawn by the Lower Court amounts to an infringement of the personal liberty of the victim and a violation of right to life guaranteed under Article 21 of the Constitution. 

It is submitted that the findings of the Lower Court are, per se, illegal, unjust and have the effect of potentially exposing the survivor to secondary trauma. 

Referring to the Apex Court decision in which it was held that discussion about the dress, behaviours or past 'conduct' or 'moral' of the Prosecutrix should not enter the verdict while granting bail, it is submitted that the Court below flouted all the guidelines issued by the Supreme Court and granted pre-arrest bail to the accused by making observations which were deprecated by the Supreme Court. 

Kerala Government previously filed another appeal challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case filed by a Dalit Writer, citing that the order is against the spirit of the Special Law enacted for Prevention of Atrocities against the people belonging to SC/ST community.

Both orders have been subjected to severe criticism, especially the Courts remark that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.

Case Title: State of Kerala v. Civic Chandran