The debate over how courts interpret sexual offences has intensified after the Patna High Court's observations in an attempt-to-rape case, with women's rights activists and an advocate stressing that judicial reasoning must be guided by the law, constitutional values and survivors' dignity.
Also Read | Explained: The laws on rape and sexual crimes
The remarks came after the Patna High Court, according to media reports, held that attempting to remove a woman's salwar and pressing her breasts did not amount to an attempt to rape.
The Supreme Court had slammed the High Court's observations and said it would pass a detailed order on the issue.
A Bench headed by Chief Justice Surya Kant expressed serious concern over the "lack of thorough research" before such judgments were delivered.
Speaking to PTI, women's rights activist Yogita Bhayana termed the Patna High Court's observation “very insensitive” and alleged that many of these judges have a patriarchal mindset and are insensitive towards women.
“They [judges] are also male chauvinists. They have a very patriarchal mindset and are themselves very insensitive towards women,” she said, adding that “just because someone becomes a judge does not mean they are gender-sensitive or gender-neutral.”
Ms. Bhayana said judges should undergo mandatory gender-sensitisation and legal training across all levels of the judiciary, adding that such programmes were conducted for police, schools and corporates but not for the judges.
“Judges have to be taught... We have to educate those who decide the law. How can you expect justice from such people otherwise?” she said.
She also expressed her concern over such observations, saying that they could deter survivors from reporting crimes and pursuing justice.
“Survivors first fight society and even their own families before they reach the police... But if judges make such absurd observations, who will have the courage to report these crimes?” she said.
Referring to the SC's intervention, Ms. Bhayana said expressions of concern alone would not help and called for judges to undergo training.
“Similar concerns were expressed over the Allahabad High Court's observations as well. But someone has to implement change. Send judges for training. That is what needs to be done," she said.
Archana Agnihotri, founder and director of the NGO Samadhan Abhiyan, told PTI that judges dealing with sexual offence cases needed proper orientation and a sound understanding of the law, describing the Patna High Court's observations as "shocking".
“The law is very clear... They don't even read the law. And despite being judges, they are making such statements. It is embarrassing,” she said, adding that judges “need proper orientation on sexual offence-related issues because they have no clue what they are talking about”.
Referring to the legal interpretation of sexual offences, Ms. Agnihotri said the law was “written in black and white” and alleged that judges were failing to apply it correctly.
“All judges should be tested on their knowledge of the law before they pass any judgment. That should be the rule,” she said.
Ms. Agnihotri said such observations could undermine confidence in the justice system, not only among survivors but among women generally.
“Tomorrow, if anything happens to me, these are the kinds of judges who will decide my case. Where will I get justice? It is demoralising for all weaker sections, not just women,” she said.
“Judges should pass an examination on the relevant law before passing judgments. If they do not pass that examination, they should not be allowed to decide such cases, not at any cost,” she said.
Women's rights activist Shobha Vijender said there was a legal definition of rape and that cases falling within its scope should be treated accordingly.
“There is a legal definition of rape... whatever falls within the legal boundaries should be treated as rape. Whatever does not fulfil the legal definition is obviously not rape,” Ms. Vijender said.
She, however, said such observations lowered the morale of society and created an impression that “penetration alone is what matters”, while overlooking attempts to rape, molestation and their impact on survivors.
“They do not think about attempts, molestation, or the emotional and physical impact on a woman. Such incidents affect her deeply, not only at that very moment but throughout her life,” Ms. Vijender said.
Ms. Vijender said the law itself was clear and contained no ambiguity.
"The law is very clear. There is no lacuna in it. The law explains what rape is, what penetration means and what other acts are covered. If a case comes within that legal definition, then it is rape. It cannot depend on what you, I or any third person thinks," she said.
She said judges should show greater sensitivity while making such observations as people looked to the judiciary as the institution that would ultimately deliver justice.
"We always believed that the judiciary was the last pedestal where survivors would receive justice and sensitivity. These kinds of statements affect the entire social fabric. They hurt the survivor's emotional needs... Dignity is the core of every individual, and I feel such observations strike at that very core," Ms. Vijender said.
Senior advocate Karuna Nundy said the Patna High Court had ignored a recent Supreme Court judgment delivered in February involving "almost identical" facts.
"The Patna High Court, in its decision, ignored a very recent Supreme Court judgment delivered in February where the relevant facts were almost identical. In that case too, the accused untied the victim's salwar and attempted to rape her, and it was held by the Supreme Court to be a case of attempted rape," she said.
Ms. Nundy said that even if the High Court believed the facts were distinguishable, it should have addressed the Supreme Court's ruling.
“As the Chief Justice quite correctly pointed out, more research should have been done. Even if the high court felt that the situation was different from the one the Supreme Court had decided, it should've dealt with the distinction in the judgment. The Patna judgment didn't even mention the prior Supreme Court judgment,” she said.
"Judges come from society, but we must make sure they do not perpetuate societal power structures and prejudice," she said.
Calling for greater scrutiny in judicial appointments, Ms. Nundy said, "Judges must be recruited and interviewed very rigorously for their adherence to constitutional values, so that they can set right the 'might is right' principle of crime. Otherwise, a second layer of injustice gets laid onto the crime against each victim."
Published - July 17, 2026 03:07 pm IST