Insensitive, inhuman: Supreme Court pauses ‘grabbing breasts not rape’ order

On Wednesday, the Supreme Court suspended a contentious ruling from the Allahabad High Court which stated that “grabbing breasts” and “breaking the strings of a girl’s pyjamas” do not qualify as rape or an attempt to rape. The Supreme Court, which initiated suo motu cognizance of the order that sparked outrage, stated that the judgment demonstrated a lack of sensitivity.

The highest court observed that the decision was not made impulsively and that it involved careful consideration, as it was given four months after the judgment was reserved.

“We are at pains to state that it shows total lack of sensitivity on part of the author of the judgment. It was not even at the spur of the moment and was delivered 4 months after reserving the same. Thus, there was application of mind,” a bench of Justices BR Gavai and Augustine George Masih said.

“We are usually hesitant to grant stay at this stage. But since the observations in para 21, 24 and 26 are unknown to cannons of law and show an inhuman approach, we stay the observations,” the Supreme Court said.

The Supreme Court sought the responses of the Centre and the Uttar Pradesh government on the issue.

“We issue notice to the Union, the state of Uttar Pradesh and parties before the HC. The learned Attorney General and Solicitor General shall assist the court,” the court said. Interestingly, another Supreme Court bench refused to entertain a PIL filed against the controversial court order on March 24.

The Allahabad High Court issued its order during the hearing of a petition by two individuals who had been summoned by a trial court on charges of rape. The defendants, Pawan and Akash, reportedly groped the breasts of an 11-year-old girl. One of them snapped the cord of her pajamas and tried to pull her under a culvert.

Justice Ram Manohar Narayan Mishra stated that simply seizing the breast does not qualify as rape; however, this action is categorized as assault or the application of criminal force against a woman with the purpose of undressing her or forcing her to be unclothed.

The High Court determined that the pair should face trial on assault allegations alongside sections 9/10 of the POCSO Act (aggravated sexual assault), which carry lighter penalties if found guilty.