'Don't Borrow Foreign Concepts' : Supreme Court Calls For Guidelines Rooted In Indian Social Fabric To Sensitise Judges On Sexual Offences

The Supreme Court has directed the National Judicial Academy to frame comprehensive draft guidelines to inculcate sensitivity and compassion in judicial handling of sexual offence cases, stressing that such norms must reflect India's social fabric and not be borrowed from foreign jurisdictions.

A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice NV Anjaria was hearing the suo motu case taken by the Supreme Court in 2025 over a controversial order passed by the Allahabad High Court, which had held that grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of attempt to rape. The High Court had observed that the acts would prima facie constitute the offence of 'aggravated sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act, 2012, which carries a lesser punishment.

While setting aside the High Court's order as erroneous, the Supreme Court considered the broader issue of laying down guidelines to ensure that Judges deal with sexual offences in a sensitive manner, without social prejudices and patriarchal notions.

The bench noted that various steps have been taken by the Courts in the past, both on the judicial side as well as on the administrative side, to incluclate such sensitivity; however, those efforts do not seem to have have yielded the expected results.

NJA To Constitute Expert Committee

Hence, the Court requested Justice Aniruddha Bose, former judge of the Supreme Court and Director of the National Judicial Academy Bhopa, to constitute a Committee of Experts to deliberate upon "Developing Guidelines to Inculcate Sensitivity and Compassion into Judges and Judicial Processes in the Context of Sexual Offences and other Vulnerable Cases".

Mandate of the Committee

The committee shall be headed by Justice Bose as its Chairperson and comprise four other domain experts, including practitioners, academicians, and social workers, as its members. 

"The Committee shall consider the previous measures undertaken, whether on the judicial side or the administrative side, to achieve such goals, as well as the varying results seen on the ground through the implementation of such measures. Further, after taking into account such previous endeavours and the variety of on-ground experiences faced by different stakeholders across the judicial system, prepare comprehensive recommendations."

These recommendations shall be in the form of 'Draft Guidelines for the Approach of Judges and the Judicial System When Dealing with Cases of Sexual Offences and other Similarly Sensitive Occurrences Involving Vulnerable Victims, Complainants, and/or Witnesses'.

The committee shall consider the linguistic diversity. 

"There are various examples of offensive words and expressions, the use of which would ordinarily constitute an offence under our penal laws, but they are openly spoken by members of our society in local dialects, ostensibly because of the absence of a clear understanding of the offensive nature of such saying. It shall be highly appreciated if the Committee, as a part of its report, is able to identify and compile such words/expressions, from different languages, so that they do not go unnoticed, and the complainants/victims are empowered to give a better and fuller narrative of the trauma undergone by them."

The bench has requested that the committee bear in mind that the primary beneficiaries of these guidelines would be the victims/complainants. Therefore, it must be drafted to ensure that it is well-understood, irrespective of background and should be in simple language. It should not be loaded with heavy foreign langauge and if possible, the committee may consider preparing translated versions.

Eschew foreign concepts

The judgment authored by CJI Kant recommended that the guidelines must reflect the Indian social ethos, eshewing expressions borrowed from foreign jurisdictions.

"we recommend that the Committee of Experts prepare, preferably the entire report, and in any case at least the draft guidelines, in simple language comprehensible to laypersons, whose interests the guidelines seek to protect. The guidelines, we expect, will not be loaded with heavy, complicated expressions borne from foreign languages and jurisdictions. They must be contextualised in the real and lived experience of the stakeholders in Indian judicial process, with direct reference to the ethos, values, and social fabric of our country."

During the hearing, CJI Kant had orally commented that the handbook prepared by the Supreme Court in 2023 to deal with gender stereotypes was a bit "Harvard-oriented".

The bench directed the Registry to forward a copy of the judgment to Justice Bose and request him to constitute the committee within two weeks. Lastly, the committee shall be paid honorarium as decided by Justice Bose, for which necessary funds will be provided by the Supreme Court. 

The committee shall submit the report within three months.

Allegation does not amounts to preparation but attempt, patently erroneous judgment

The Supreme Court remarked that the High Court's order is liable to be set aside due to the "patently erroneous" application of settled principles of criminal jurisprudence. 

This is so because the High Court modified the summoning order and directed that the accused be tried under the minor charge of Section 354B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault). The modification was done on the grounds that there is a distinction between preparation and attempt and this case felt with the former. 

It is the case of the prosecution that the accused persons, Pawan and Akash, grabbed the breasts of the 11-year-old victim and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert.

Finding it to be a case of attempt to rape or attempt to commit penetrative sexual assault within the purview of the POCSO, the concerned trial court invoked Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act and issued a summoning order under these sections.

“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” Justice Ram Manohar Narayan Mishra  of the High Court observed as it partly allowed the criminal revision plea filed by 3 accused.

Referring to State of Madhya Pradesh v. Mahendra alias Golu(2022), authored by CJI Kant(J Kant then), the bench explained the difference between preparation and attempt. It said that an attempt is an execution of mens rea after preparation.

Considering this, the bench stated that the accused persons had only stopped the crime when witnesses reached the crime spot due to the shrieks of the minor. This is evidence of the fact that the accused persons had proceeded with a "pre-determined" intent attempt to commit rape. 

"A bare perusal of these allegations leaves no modicum of doubt that the case sought to be made out is that the accused persons proceeded with a pre-determined intent to commit an offence under Section 376 of the IPC on her. In light of the overt averments recorded in the Criminal Application filed by the complainant-mother under Section 156(3) of the Code of Criminal Procedure, 1973, it becomes readily apparent that,from the story of the complainant, the mens rea involved had begun to be executed. This understanding is bolstered by the High Court's own recording that the only reason why the crime was not furthered was the above-mentioned intervention by third-party witnesses," the bench observed.

 As a consequence, the summoning order of the Trial Court was restored. It also confirmed paragraph 5 of the interim order dated December 8, 2025, in which it was stated that the trial must proceed with the original summoning order only without any prejudice to either side. Additionally, the bench clarified that any observation should not be considered as any opinion furnished on the guilt of the accused persons.

Background

It may be noted that a bench comprising Justice B.R. Gavai and Justice AG Masih had stayed paragraphs 21, 24, and 26 of the order last year on March 26, after initiating a suo motu case against the High Court's order. The bench had expressed its strong disagreement with the High Court's view and had termed the decision as "shocking" and "insensitive".

Subsequently, on December 8, 2025, the Court stayed the entire judgment with an interim clarification that if the trial proceeds, it must proceed on premise that accused persons have been summoned to face trial under Section 376 along with Section 511 IPC along with Section 18 of POCSO.