In January 2021, a high court in India made a startling sexual assault ruling, declaring that groping without skin-to-skin contact does not constitute sexual assault. The case has garnered outrage across the country, drawing attention to the unresolved problem of sexual abuse and rape against women and minors. Instituting a ruling like this undermines the progress that activists have made regarding children’s and women’s right to safety in India and bolsters an already rampant culture of sexual crimes within the nation.
In this particular case, a 39-year-old man, initially found guilty in lower courts for sexually assaulting a 12-year-old girl, appealed to the higher court in Bombay, wherein Justice Pushpa Ganediwala found him innocent. The man was accused of inviting the girl to his house on the pretext of giving her fruits, but when she got there, he inappropriately touched her breasts and attempted to remove her clothes. Instead of serving three to five years on charges of sexual assault, Ganediwala gave the man only one year of jail time on charges of molestation.
Ganediwala’s ruling should be scrutinized for its interpretation of the sexual abuse laws under the national Protection of Children from Sexual Offences Act. Under POCSO, sexual assault is defined as when someone “with sexual intent touches the vagina, penis, anus or breast of the child or 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,” according to section 7. However, Ganediwala declared that since there were articles of clothing involved, section 7 did not apply. The court recognized the presence of clothes as proof that there was no physical contact at all. According to Julia Hollingsworth in a CNN article, the judge declared that “it is the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime.”
Rulings like this play down the gravity of sexual crimes in India. The country already has a staggering sexual violence track record, especially when it comes to children. Four out of 10 rape survivors in India are minors, and 99 percent of cases go unreported. Therefore, Ganediwala’s verdict sets the precedent that sexual crimes are less severe than they are. When the justice system itself treats sexual crimes this way, ifurther normalizes patriarchy and male entitlement and deems the culture of sexual violence acceptable and normal.
According to India Today, “the rape vulnerability for girls or women is almost twice today to what it was 17 years ago, according to data provided by the National Crime Records Bureau.” When sexual crimes are left unchecked by the justice system, the safety of women and minors is compromised. Cases like this further downplay the need for more stringent rules for sexual assault that are necessary in order for the country to bring down the staggering vulnerability statistics that the NCRB records.
An explanation for the possibility of such rulings is how judges tend to automatically favor pardoning the accused as a measure to sound fair in sexual assault cases. But when there is such a widespread culture that is continuously going unchecked, is it not the responsibility of the judge to choose which side to take? Should we not ensure that the laws and rules brought about by previous cases are carried through to ensure a safer place in which the actions of sexual predators are not pardoned?
At the end of 2012, the horrifying Nirbhaya case took place wherein a young woman was fatally sexually assaulted in Delhi. The following year, India introduced stricter laws against rape and assualt . POSCO was introduced around the same time as the Nirbhaya case. Additionally, further lobbying by activists has secured more legislative changes with regard to sexual assault and ensuring stricter measures for women and children’s safety.
However, while there have been some changes to these laws and constant efforts made by activists, these new rules are often not enforced by the justice system. The Bombay high court ruling is just one recent example. There have been innumerable instances in which the Indian justice system has ignored the need to combat sexual crimes. There are issues of underreporting, prolonged time to open investigations and low conviction rates (in relation to reported crimes).
This situation in the Bombay high court ruling is a reminder that the sexual violence culture in India is still overwhelmingly present despite laws and regulations. A case like this continues to peddle on the old broken justice cycle rather than moving toward a safer and better environment.
Ganediwala said that the punishment should be proportionate to the seriousness of the crime. When will we realize the gravity of sexual crimes in India and take proportionate actions to ensure a safer country? Ganediwala’s interpretation of seriousness is unacceptable and undermines what so many victims go through. Cases like this must be brought to light, and we must decide which way we want to take this culture.