Kerala writer charged with sexual harassment gets early bail on ‘regressive’ reasoning – The Leaflet

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Kohzhikode Court of Sessions grants relief to Kerala Civic writer Chandran, charged with sexual harassment and under the Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989, on specious grounds, despite the he 2018 amendment to the law, which seeks to prohibit the granting of advance bail to persons charged under it, is strict.

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THE phantom of the Supreme Court’s verdict in Dr. Subhash Kashinath Mahajan v State of Maharashtra (2018) refuses to obtain salvation despite the earnest efforts of the Union government to make Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 stricter through amendment in 2018.

A recent order issued by the Court of Session, Kozhikode in Kerala (Crl. MC 1221/2022 of Aug. 2) raises many agitated questions about unwitting judicial interpretations of the law, which was made stricter following the the commotions and the spilled blood members of the Scheduled Castes and Scheduled Tribes communities in April 2018 in response to Dr Subhash Kashinath Mahajanwhich ruled that arrests can be made without a preliminary hearing and that early bail can be granted to a defendant if the complaint is found prima facie to be in bad faith during a judicial review.

The bar created under the Sections 18 and 18A(2) of the Act regarding the granting of advance bail to those convicted under the Act, is easily overruled by the courts. Although section 18A(2) provides that the provisions of Section 438 of the Code of Criminal Procedure (“CrPC”), dealing with early bail, does not apply to a matter under the law notwithstanding any judgment or order of a court, thanks to the interpretations of many courts of High Court as well as the Supreme Court, in particular in Prathvi Raj Chauhan vs Union of India (2020), the test for granting advance bail now rests with the judge, who must decide whether there is a prima facie case in the case before him. This heavily judge-centric norm has begun to undermine the effective implementation of the law.

The aforementioned district court order is an example of this. The court, by simply reviewing the first information report (“FIR”) and statement under Section 161 of the CrPC of a victim of sexual harassment, concluded that there is no prima facie case, and even went so far as to assert that the case is not genuine. The court order is significant as it relates to a case of sexual harassment inflicted on a female Dalit writer by a well-known 70-year-old Kerala writer and activist, Civic Chandran. (Following this complaint, another “me too” complaint was also recorded against Chandran).

The wheels of the investigation had just begun to roll with the registration of the FIR by the Dalit Complainant against the Accused under Articles 354 (assault or criminal violence against a woman with the intention of outraging her modesty), 354A(1)(ii) (sexual harassment by request or request for sexual favors), 354A(2) (penalty for sexual harassment) and 354D(2) (punishment for criminal harassment) of the Indian Penal Code, and Division 3(1)(w)(i) and (2)(va) (punishments for atrocities) of the 1989 Act.

However, the court, in order to meet the standard of test to be applied, namely whether there is a prima facie case in this case, hastily established that there was no prima facie case and sued by stating that the complaint was filed to tarnish the defendant’s status in society.

The reasoning invoked to arrive at this conclusion is all the more astonishing and regressive. The court states that “[the accused] writes and fights for a casteless society. In such a circumstance, it is highly incredible that he should touch the body of the victim knowing fully that he is a member of the annex caste”and that “The victim is bigger than the accused. Given his age and poor state of health, it cannot be believed that the accused gave him a kiss on the back without his consent.”.

Such gender-blind and regressive reasoning echoes the observations of the Sessions Court in the much debated 1995 Bhanwari Devi case. The judicial stereotypes expressed by the trial judge in this case reveal that any further delay in following the Supreme Court’s instruction in Aparna Bhat v Madhya Pradesh State (2021)with regard to the conduct of gender awareness programs for judicial officers, will be catastrophic for women victims of violence.

Besides gender bias, caste bias is also evident in the contested order. In the early bail order for a crime under the 1989 Act, the court in the initial part of the order specifically appeals to the future prospect of removing special legislation such as the 1989 and to renounce the reservation given to Castes, Scheduled Tribes and other retrograde classes!

After getting a clear cut from the district court at the bail stage itself, anyone can guess the defendant’s next move in the present case.

Despite a strict law in the country for the protection of Dalits from caste atrocities, justice eludes many, like the current Dalit complainant. In a country where there is no sincere effort to disentangle notions of gender and caste bias within the judicial fraternity, can we afford to retain these judge-centric norms and continue to say that we have doing anything to do justice to the Dalit community?

Click here to view the full order of the Kozhikode Sessions Court.

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