Woman's 'Provocative Dress' No Licence For Man To Outrage Her Modesty: Kerala High Court Expunges Remarks In Civic Chandran Bail Order

The Kerala High Court on Thursday, while disposing of two pleas challenging the grant of anticipatory bail to the author and social activist Civic Chandran in a sexual harassment case, expunged the 'sexually provocative dress' remark of Kozhikode Sessions Court.

Justice Kauser Edappagath, while disposing of the two pleas moved by the State as well as the De facto complainant against the anticipatory bail order, observed that even though the reason shown by the Court below for granting anticipatory bail cannot be justified, the order granting anticipatory bail cannot be set aside. 

In these circumstances, I am of the view that even though the reason shown by the Court below for granting anticipatory bail cannot be justified, the order granting anticipatory bail by the Court below cannot be set aside.

The observations in the Kozhikode Sessions Court order, which was passed on August 12, had created a massive outrage. The court had said offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.

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

While passing the order, Justice Edappagath observed that the dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of outraging the modesty of a woman.

"The dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of outraging the modesty of a woman. The right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution and a facet of the fundamental right under Article 21 of the Constitution. Even if a woman wears a provocative dress that cannot give a licence to a man to outrage her modesty. Hence, the said finding of the Court below in the impugned order is hereby set aside," said the court.

The Court observed that everyone has the freedom to wear whatever he/she wants to wear, subject to the laws of the land. Objectifying women in regard to what she wears cannot be justified. There is no reason why a woman should be judged by her clothes. Furthermore, the Court observed that norms that categorize women based on their attire and expressions can never be tolerated, and it is wrong to say that a woman was sexually assaulted just because she was wearing provocative clothes. 

Everyone has the freedom to wear whatever he/she wants to wear, subject to the laws of the land. Objectifying women in regard to what she wears cannot be justified. There is no reason why a woman should be judged by her clothes. Norms that categorize woman based on her attire and expressions can never be tolerated.

Relying on the Apex Court decision in Aparna Bhat and Others v. State of Madhya Pradesh and Another in which the Court had held that discussion about the dress, behaviour, or past conduct of the victim should not enter the verdict while granting bail to the accused and it was also observed in the judgment that the Judges should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court; the Court observed that the remarks in the impugned order regarding the provocative dress of the victim cannot be sustained and thereby expunged it.

The Court observed that on merits, the petitioner has made out a case for anticipatory bail. The Director General of Prosecution earlier submitted before the Court that the investigation was almost over in the case.

Therefore, taking into consideration the facts and circumstances of the case and the age of the accused, the Court observed that custodial interrogation will not be necessary.

The Court, thereby, disposed of both the Criminal Miscellaneous Cases and upheld the grant of anticipatory bail to the accused.

Case Title: State of Kerala v. Civic Chandran and XXXXX v. State of Kerala

Citation: 2022 LiveLaw (Ker) 522

Click Here To Read/Download The Order