About three weeks since the Supreme Court exercised its suo moto powers to rectify an order of the Allahabad High Court, we are back at square one. Then, it was a child, pyjama strings broken, breasts groped, pulled beneath the culvert but the honourable judge thought it was not an attempt to rape. Now, another case, another woman, different judge, same Allahabad High Court. This time, it is a young college girl out with friends, drinking at a bar with her male friends, but the judge thinks, “Even if the allegation of the victim is accepted as true, then it can also be concluded that she herself invited trouble and was also responsible for the same.”
A fundamental principle of bail jurisprudence cautions a judge to refrain from making any comments which shall prejudice the investigation or trial. This refrain is paramount in cases of sexual offences as was laid down in XYZ And Others vs State of Madhya Pradesh And Anr. (2021). Completely contrary to the directions of the apex court, the Allahabad HC, in this case, suggests that the complainant’s status as an adult, her educational background, and the fact that she consumed alcohol in the company of male friends somehow imply complicity in her assault.
Our nation is witness to recurring incidents that probe the character of a victim, employing rape myths rife with misogyny and dogma. Time and again, the judiciary decides based on the victim’s conduct, questioning the absence of visible resistance, delays in filing FIRs, or continued association with the accused, as if these factors inherently discredit their testimony. Time and again, the Supreme Court has to step in to quash such decisions. Time and again, it is the victim who is left awaiting justice.
The kind of judicial reasoning used in this case reflects how parts of our society still hold on to the outdated belief that “she asked for it”. It also sends a disturbing message to survivors that their character, not their consent, will be put on trial.
It is important to remember that the justice delivery system has, over time, made progress in stepping away from this mindset. Years of public outcry, activism, and significant legal reform, especially after the Jyoti Singh case, have helped shift the focus of rape laws from placing the survivor under a microscope to holding the accused accountable. The Supreme Court, through multiple rulings, has affirmed that the absence of resistance does not equate consent, that delays in reporting do not suggest fabrication, and that no woman ever “invites” sexual violence.
Section 48 of the Bharatiya Sakshya Adhiniyam, 2023, deems inadmissible any evidence of the victim’s character or past sexual conduct, seeking to curb victim blaming in sexual offence cases and ensuring consent is judged on case facts, not past behaviour of the victim. However, a disconnect persists between legal principles and such orders. This disconnect demands immediate attention. Judicial reasoning, particularly in sexual offence cases, must be grounded in constitutional morality, rather than shaped by subjective views on how a woman should conduct herself.
In this scenario, the responsibility of the judiciary is immense. While judges are human and shaped by the society they live in, they also carry the burden of shaping society in return. Their words have a deep, incisive impact, shaping public discourse, influencing police procedure, and guiding the reasoning of trial courts. A single sentence in a bail order can either protect the dignity of a survivor or tear it apart.
This is why judicial training and sensitisation are so crucial, especially in cases involving sexual violence. Judges need regular and in-depth training not just on legal provisions, but on how trauma works, how survivors process and report assault, and how bias, however subtle, can influence legal reasoning. Sensitisation cannot be a one-time seminar or an optional session. It must be embedded into the culture of the judiciary, constantly refreshed, and treated as essential to upholding the Constitution.
Ultimately, a survivor-centric approach is not about blindly believing every allegation, it is about ensuring that the system treats survivors with dignity, fairness, and without judgement. It means assessing facts without prejudice and upholding the right of every individual to say no and to be heard when that no is violated. When court decisions reflect on how victims “should” behave rather than on objective legal reasoning, the damage extends far beyond any single case. These rulings gradually shape public understanding of justice. That is why even seemingly minor comments in judgments carry real weight; they either uphold the law’s promise of equal treatment or undermine it. Such orders need to be set aside with a demand for accountability from the judges who passed it.
In view of these instances, one is constrained to question the abject failure of the Allahabad Court in upholding the basic tenets of law. Is a citizen to be left with no remedy except to wait until her case reaches the Supreme Court before receiving even-handed justice?
The writer is senior advocate and former Additional Solicitor General of India
The complainant's counsel submitted that the man had committed the offence which would ruin her entire life since no one would be willing to marry her. (File Photo) 
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