The Problematic Bombay HC Verdict
“Mom, that man groped me without consent, I am traumatized.”
“Oh my poor child, you are just 12, you were sexually assaulted by a monster but don’t you worry, because it is completely okay if he did not undress you because it is not considered as a sexual offence under POCSO. Also, don’t worry about the trauma because he promised to marry you.” The judgement is just as ridiculous as this sounds.
Is groping a minor’s breasts without undressing them acceptable while groping them without clothes is sexual assault?
In a ruling on 24th January, the Nagpur Bench of the Bombay High Court pronounced that groping a child’s breasts without any direct skin-to-skin contact is not considered as sexual assault under Protection of Children from Sexual Offences Act (POCSO).
A 12-year-old girl went out to buy guava. When she did not return home after some time, her mother went scouting for her. She rescued her daughter after she found her inside 39-year-old Bandu Ragde’s house, locked in his room. The 39-year-old culprit is accused of manipulating a 12-year-old girl to go with him to his house on the pretext of giving her guava, and groped her and attempted to remove her salwar. The mother immediately took her daughter to the police station and filed a complaint against Bandu Ragde.
Thereafter, the sessions court sentenced the culprit, Bandu Ragde to three years of jail, under Section 8 of the POCSO Act. Bandu Ragde then filed an appeal to take the case to the High Court. Justice Pushpa Ganediwala of the Nagpur Bench of Bombay High Court overruled the judgement given by the sessions court and instead diminished the sentence and offence attributes. Justice Pushpa Ganediwala endorsed the conviction under Section 354 IPC (outraging a woman’s modesty) which bears a minimum punishment of only one year, remarking that there was no “specific detail” as to direct skin-to-skin contact wherein either the minor’s top was removed or the culprit put his hand in the minor’s top.
The Court said: “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty.”
Note: The culprit admitted that he groped the minor’s breast.
Understanding the Law:
Section 7 of the Protection of Children from Sexual Offences Act states that “Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
Section 8: Punishment for sexual assault states that “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
Section 354 of the Indian Penal Code states that “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
The Problem with the Judge's interpretation of the Law
Even after the culprit admitted that he groped the minor’s breast, the Justice Pushpa Ganediwala released him off POCSO charges by misinterpreting the law. Sentencing the culprit only to 1 year of jail naturally signals that it is not a grave offence and the judiciary is definitely not safeguarding the child.
POCSO was brought because of inadequacy in the pre-existing laws regarding children against sexual assault. The HC verdict dissolves the sole purpose of bringing POCSO into effect.
Surprisingly, Justice Pushpa Ganediwala has laid down many other legal precedents.
She acquitted a man of sexual assault under POCSO who opened his pant’s zip while holding a minor’s hand. He also asked her to go to bed with him.
She also liberated a rapist, who raped a minor, stating that there was insufficient evidence about whether the girl was a minor and that the intercourse was nonconsensual. She wrote: “Had it been a case of forcible intercourse, there would have been a scuffle between the parties. In the medical report, no injuries of a scuffle could be seen.”
Why are these Judgements Problematic?
The court is trapped in a patriarchal society. It is very evident that judge’s decisions are heavily influenced by their internalised misogyny for eg: letting a culprit off the hook just because they agreed to tie a rakhi on their wrists or marry the victim and clearly disregarding the child’s/woman’s trauma of having to spend their life with the person who breached their rights.
It overlooks the mental and physical trauma that the child faces.
It misleads the youth into believing by redefining that groping/molestation is not a sexual offence.
It further cements the rape culture.
It promotes the objectification of victims.
It discourages women from speaking up and indirectly snatches away their freedom of speech by allowing others to terrorize the victims by letting them take control over their existence.
It encourages victim-shaming.
These rulings can be dangerously used as a legal precedent after redefining sexual assault by culprits to demand bail.
The SC has decided to halt the appointment of Justice Pushpa Ganediwala as a permanent judge at the Bombay High Court after she drew flak over her POCSO judgement.
What Could be Done:
Despite India being a 'developing' country, women are still expected to satisfy a man's needs. The verdict is a clear depiction of how these values are deeply rooted in the judiciary system. It depicts how the judiciary prioritises everything else but the safety and security of a child.
In this day and age, the trust in the judiciary is quite quivery.
India is no longer progressing, we cannot just witness the fall of our judicial pillars.
We cannot make a change until we question the judiciary now. Laws like the Sedition Law opposes that. Sign the ‘Amend sedition law’ petition.
Changes to be made in the Legislation. India has evolved. Even after 74 years of Independence, the redundant parts of the British Constitution are still into practice. It is only fair that modifications are made according to today’s requirements.
Sex-ed to be taught in schools.
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Writer - Charmy Savla
Editor - Hamza Ansari
Illustrator and Graphics - Vaishnavi Bhojane
Petition to amend the Sedition Law: