2020 was a good year for the Allahabad High Court, when it showed how a constitutional court could stand up for civil liberties even against a strong and powerful government – and even correct course when it got things wrong.
It ordered Uttar Pradesh authorities to take down their 'name and shame' banners being used to target anti-Citizenship (Amendment) Act protesters, declared the detention of Kafeel Khan under the National Security Act illegal, and even ordered the state to compensate students who had been beaten by the police during the anti-CAA protests.
After a single judge passed a shocking order refusing to offer police protection to an inter-faith couple and saying that conversion for marriage was unacceptable, a division bench overturned the decision and explained how it was bad in law (not that the UP government cared, it continued to use the original order to justify its shameful Love Jihad legislation).
In 2022, however, the same high court has found itself making the news for all the wrong reasons. First there was the decision to grant bail to Lakhimpur Kheri violence accused Ashish Mishra despite every reason not to – thankfully overturned by the Supreme Court.
Then there was its decision to refuse to interfere with the Varanasi civil judge's decision to allow a video survey of the Gyanvapi mosque – despite itself having refused such requests in the past in light of the Places of Worship Act and a pending case on the matter.
The latest shocker to come from the court is a judgment which in pure terms of its result isn't the worst, but wants to dictate how complainants are supposed to describe their allegations to the police so that they don't become 'soft porn.'
Justice Rahul Chaturvedi rejected a request from a husband for discharge from a Section 498A cruelty case, while allowing the discharge of the man's parents, who had also been charged.
But even assuming his decision to discharge the parents is justified, that there isn't enough material against the parents to prosecute, the judgment makes some utterly bizarre and problematic comments that raise serious concerns about the judge's approach to these kind of matters.
Details of Complaint Are 'Soft Porn,' It Seems
The most problematic of these is the judge's disapproval of the way the woman complainant provided clear details of all her allegations against her husband and his family in her complaint to the police which was registered as an FIR.
"After reading the FIR allegedly lodged by [the complainant] after 18 days of the incident, which is ever abhorring, full of dirt and filth," writes Justice Chaturvedi. He goes on to say:
"The graphical description portrayed by her in her FIR is deplorable to be condemned in its strongest terms. The FIR is the place where the informant gives the story mobilizing the State Machinery engaging in the commission of cognizable offence."
And then comes the part which has made the headlines:
"It is not soft porn literature where the graphical description should be made."
The reason for this pearl-clutching by the judge is that in her complaint, the woman had alleged that her father-in-law and brother-in-law had demanded sexual favours from her, she had been forced to get abortions, as well as that her husband had forced her to have sexual intercourse with her when pregnant and subjected her to acts she was not comfortable with, including urinating in her mouth.
The final straw for her was on 3 October 2018, when after yet another alleged demand for dowry, her husband allegedly tried to strangle her with a chunni and then forced her head into a toilet bowl.
She left their matrimonial home the next day and informed the women's cell of the police, and then filed her FIR with all the details on 22 October 2018.
From the very outset of the judgment, Justice Chaturvedi makes his extreme distress over the language used by the complainant clear.
In paragraph 8, after setting out the allegations, instead of noting these were grave allegations, the judge says the "story" in the FIR is "abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and inlaws by using all the ways and means in the tone, tenor and texture in the extreme manner." [sic]
The next few lines are extremely disturbing:
"The graphic and vivid descriptions of the incident without any shame or hitch of any sort which, speaks out volume of mental condition and amount of venom and poison in the mind of the informant," he writes.
It is absolutely not the role of a judge to make inferences about a complainant's mental condition merely because the language used by them is without "shame." This is not some ecclesiastical court of antiquity and we are not living in some ancient society where women have to follow purdah.
He consistently terms the complainant's allegations as venomous, and filth (interestingly, it is the judge who twice uses the term "pissed" instead of "urinated" when describing what the husband allegedly did to the wife), and finds them to be grossly exaggerated.
It is true that the police did not file a charge sheet against other members of the family named in the complaint, and even against the husband and his parents, did not include charges involving sexual violence or attempt to murder.
However, just because the police don't bring a specific charge on it does not make an allegation false. The prosecution could have well had to drop the charges because they didn't have enough evidence to successfully pursue them, and didn't want to mess up their case on charges they could not prove.
Without any conclusive proof that the allegations were falsely made, there is no basis for the judge to make the kind of remarks he did. At the very least, a judge is expected to be more judicious with his language in official court documents, and yet we see some extremely uncouth language in his descriptions of the complaint.
Why There Is Nothing Wrong With Including Graphic Details in an FIR – And Why It is Actually Advisable
Justice Chaturvedi tries to argue that there is no need to provide graphic details in an FIR, writing:
"The language of the FIR should be decent one and no amount of atrocities faced by the informant, would justify her to use such type of castic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expression would well communicate the alleged atrocities faced by her." [sic]
This is a very strange hill to choose to fight over, and applies some very strange logic.
Yes, FIRs are not required to be exhaustive, with their core function being to disclose basic details of criminality, and lead to the initiation of the process of investigation.
As the Supreme Court observed in the CBI vs Tapan Kumar Singh case in 2003, "a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported."
However, the Supreme Court also explained in the next few lines of that judgment why this was so, pointing out that a person should still be able to file a complaint if they don't know who their assailant was, or don't have the full details of what happened, or don't have an eyewitness to back up what they say.
This logic hardly applies when the alleged offender is known to the victim, and when they have clear details of the allegedly criminal conduct.
If the complainant can provide such details to the police right at the outset, it is bizarre for a court to have a problem with this, as this ensures there are no details left out for the police to investigate.
Indeed, back in 1972 in Thulia Kali vs State of Tamil Nadu, the Supreme Court, in a judgment by the great Justice HR Khanna, had noted that
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused."
A corollary of this is that including strong detail in the FIR is actually a good thing for the accused as well, because it means that if there are embellishments and exaggerations in the FIR, these can be pointed to later during trial to rebut the charges and discredit the complainant.
Another reason for including such details at the time of the FIR itself relates to the nature of this case.
We have seen over and over again that in cases involving women making allegations of sexual violence or domestic abuse, they are asked why they didn't come forward sooner, or why they didn't give out more details about what had happened to them.
It is all too easy to imagine how the trial court would, when faced with this case, criticise the woman for not giving full details of the offences against her in the FIR, and hold subsequent statements with more details to be embellishments and exaggerations.
Including all the details are there in the FIR pre-empts this standard line of attack on women making allegations about cases like these.
At the end of the day, it is up to the complainant to decide how they want to describe the allegedly criminal conduct against them, and there is no legal prohibition against them providing such details.
There is no obligation on a complainant to use "soft" and "decent" language, and this is none of the court's business – all it needs to be concerned about is applying the law to the facts in these matters.
Some Questions About Justice Rahul Chaturvedi's Orders
There is no real reason, from a legal standpoint, for the court in a matter like this to get into this whole 'soft porn' debate, with its regressive notions about how a woman should behave.
The fact that the judge felt the need to do so, however, is not entirely a surprise, as evidenced not just by this order, but some others by him as well.
Within this order itself, we see the judge go on a tirade about misuse of Section 498A of the Indian Penal Code despite noting that the woman's lawyers had specifically pointed out that there is actually no data to back up this popular canard.
As part of this, he also went on a ramble about how live-in relationships have "silently sneaked into our socio-cultural ethos by replacing our traditional marriages by its new modern abrasion" and that this is a result of Section 498A misuse.
Justice Chaturvedi is also the same judge who granted bail to Swami Chinmayanand back in February 2020, in a case where he had been accused of exploiting a young law student who had approached him for assistance when he was a minister.
In that order, he had made a number of disturbing statements, which were termed by Supreme Court advocate Karuna Nundy, well-known for her work on women's rights, as a 'disaster of jurisprudence'. These included:
“As pointed out earlier, that both the parties crossed their limits and at this stage it is very difficult to adjudicate as to who exploited whom?? In fact, both of them used each other (sic).”
“What is mind boggling, disturbing and matter of concern is that a student of LL.M., i.e. Miss “A” comes into contact with the applicant, seeks and enjoys his ‘patronage’ and ‘benevolence’ as well as on her family members and in lieu of that she was said to be exploited physically by the applicant, keeps mum throughout the entire long period for almost 9-10 months. She never shared anything with anyone including her parents (sic).”
This second statement is particularly ironic given what he held in the recent case about the details in the woman's complaint.
Justice Chaturvedi also recently passed an order in May 2022 discharging a man from a case where he had been accused of abetment of suicide of his wife, in which he wrote:
“They (Indian wives) are literally possessive about their husband. It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady. In such awkward situation, it would be impossible to expect any sanity from them.”
It doesn't need to be spelled out what is wrong with all these comments by the judge, and why they raise concerns about how he is approaching cases where women are the complainants.
One can only hope that the outrage over this most recent order is taken note of by the chief justice and other judges of the Allahabad High Court, and appropriate action is taken.
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