Kerala HC Removes 'Provocative Dress' Remark From Civic Chandran's Bail Order

The Kozhikode sessions judge's bail order held that a sexual harassment case would not prima facie stand if the survivor was wearing a "sexually provocative dress."

(Photo: The Quint)

The Kerala High Court on Thursday, 13 October, expunged the controversial remarks made by a sessions judge while granting bail to writer and activist Civic Chandran in a sexual harassment case, stating that a woman's clothing does not "absolve an accused from the charge of outraging (her) modesty," reported LiveLaw.

The high court, however, upheld the anticipatory bail granted to Chandran by the Kozhikode sessions court on 12 August, dismissing two petitions challenging the same. "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 bail order cannot be set aside."

"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."

Justice Kauser Edappagath said, according to LiveLaw

The Controversial Bail Order

The order given by S Krishnakumar, the Kozhikode sessions judge, in the bail hearings of Civic Chandran – a well-known activist, writer, and former Maoist – over two sexual harassment cases drew widespread criticism.

• First Case: A Dalit writer complained to the police that Chandran had tried to kiss her on her neck and outraged her modesty on 17 April.

• Second Case: A woman alleged that Chandran sexually harassed her in 2020 at a poetry camp at Kozhikode's Nandi beach.

In the first case, he observed that a case of sexual harassment complaint under Section 354 of the Indian Penal Code (IPC) will not prima facie stand as the woman was wearing a "sexually provocative dress."

In the second order, the same court held that because the accused is a reformer who is engaged in social activities against the caste system, "it is highly unbelievable that he will touch the body of the victim fully knowing that she is a member of a Scheduled Caste."

While granting bail to Chandran, the court also noted that while he was "74," the woman has a "well-built body and aged 42" and is "taller" than Chandran.

"Considering his age and poor health condition," the order said that it cannot be believed that the accused kissed her on the back of her head without her consent.

What Happened Next?

On 24 August, the Kerala High Court, while hearing a plea moved by the state government seeking to cancel the anticipatory bail granted to Chandran by the sessions court, stayed the controversial order.

Justice Edappagath then observed that the offence under sexual harassment was not prima facie attracted when the woman was wearing a "sexually provocative dress."

Meanwhile, the sessions judge, Krishnakumar, who delivered the controversial order, was transferred on 24 August as the presiding officer of a labour court in Kollam district. The order, posted on the Kerala High Court website, said that three others were also transferred along with Krishnakumar.

However, a division bench of the high court, on 16 September, stayed the transfer order of the sessions judge.

(With inputs from LiveLaw)