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was due to be confirmed as a permanent Bombay High Court Judge but the collegium of Supreme Court judges have withdrawn the recommendation.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 life. I still remember the details of the incident and shudder at the thought of being touched inappropriately. Whether a person, including a child, is touched inappropriately over a garment or not, is immaterial. It is the intention behind the act that counts. This act is meant to violate the person being touched and is for the sole pleasure of the person doing the touching. A child is innocent in this matter and should not be burdened to remember all details or expected to prove the crime. It is for the court to decide the judgement and interpret the law keeping in mind the seriousness of the case and its impact on the life and wellbeing of the child.
My organisation Red Dot Foundation/Safecity regularly conducts workshops in schools on appropriate and inappropriate touch so that children can recognise and adequately respond to child sexual abuse. From our experience in talking to children about their experiences, not all incidents of abuse occur when a child is undressed. With this judgement, are we now to tell a child that a “bad touch” is only one when a child is undressed?
Further, a sexual assault could include penetration of the vagina with an object, as we have seen in the case of Nirbhaya and others. It seems as though this judgement would not qualify those incidents as rape as there was no “skin to skin” contact. Rapists may also use a condom to rape someone. Does that qualify as rape in the absence of “skin to skin” contact?
In another case, Judge Ganediwala ruled that exposure of genitals and holding hands did not amount to sexual assault. This was in the case of a five year old girl who told her mother that a labourer in her house exposed his penis and invited her to his bed. This clearly amounts to malintent and I am surprised that the incident was not considered under the POCSO Act for punishment.
Clearly, Judge Ganediwala needed to be counselled as to the realities of sexual assault and the many ways it occurs. It is disappointing and frightening that she would exhibit poor judgement in these cases. Further, she was a Deputy Director at the Judicial Academy for three years which is even more worrying given that she had the opportunity to influence many judges in training and other lawyers.
This withdrawal of the recommendation for her to be made permanent is very welcome and it does give us hope that public pressure can result in positive action. It will also serve as a reminder to other judges to take their position responsibly as a lot depends on their sound judgements.