Actions have consequences

ElsaMarie
4 min readFeb 20, 2021

We recently celebrated the 72nd anniversary of our Republic Day when the Constitution came into being. On the day I reflected on how lucky I was to be born in a democratic country, India where I am guaranteed equal rights as a woman.

However, that feeling was short-lived as I read news reports of the recent judgement of the Nagpur bench of the Bombay High Court in the interpretation of Section 7 of the Protection of Children from Sexual Offences (POCSO) Act. She said that a man groping a 12-year-old child without removing her clothes is not sexual assault.

To our good fortune, the Supreme Court stepped in and stayed the judgement. But subsequent reports have indicated that Judge Pushpa Ganediwala has also ruled that “The acts of ‘holding the hands of the prosecutrix’ (female victim), or ‘opened zip of the pant’ does not fit in the definition of ‘sexual assault’ ” and overturned the conviction of a man under the POCSO.

Luckily for us, Judge Pushpa Ganediwala was due to be confirmed as a permanent Bombay High Court Judge but the collegium of Supreme Court judges have withdrawn the recommendation. This was prompted by the reservations raised by Supreme Court Justices DY Chandrachud and AM Khanwilkar. These latest developments are very positive. This is why.

These judgements set a harmful precedent because they not only have a flawed interpretation of the law but also puts the onus of proof of the crime on the survivor. It also ignores the many different ways sexual assault is perpetrated. This is harmful not only for girls but also boys who are supposed to be protected from sexual offences under the POCSO Act and for society at large.

The POCSO Act, Section 7, clearly defines sexual assault as “whoever, 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 is said to commit sexual assault”.

It doesn’t matter if it’s over or under the clothes, it is upsetting and wrong — and should always be treated as illegal.

I know about this first-hand. When I was 13 years old, a man groped me in a train and that incident scarred me for…

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ElsaMarie

Contradiction of sorts — dreamer and doer, introvert yet extrovert, grounded whilst always flying. Feminist. Know more www.elsamariedsilva.com; www.safecity.in