Bombay High Court Judge Pushpa Ganediwala ruled that since there was no skin-to-skin contact, the crime did not fall under "sexual assault."
Trigger Warning: Child Sexual Abuse
In shocking news, an Indian high court in the city of Mumbai, Maharashtra, has ruled that groping children while their clothes remain on is not sexual assault. The verdict has drawn outrage across the South Asian country, with thousands of individuals taking to social media to report their anger. As per the verdict, Bombay High Court Judge Pushpa Ganediwala ruled that a man, aged 39, was not guilty of sexually assaulting a young girl, aged 12. She claimed that he had not removed her clothes, which meant that there was no skin-on-skin contact, CNN reports.
Pressing Breasts Without Disrobing Not "Sexual Assault" As Per POCSO Act But Offence Under Sec 354 IPC : Bombay High Court https://t.co/CQXyVXQgfX— Live Law (@LiveLawIndia) January 24, 2021
The incident took place in December 2016. Court documents reveal that the man in question brought the child to his house on the pretext of giving her guava. When they arrived, the man attempted to take off her underwear and touched her chest, through her clothes. Initially, he was found guilty of sexual assault and thereby sentenced to three years in prison in a lower court. However, he appealed to the Bombay High Court. Although India's Protection of Children From Sexual Offenses Act 2012 does not explicitly state that skin-on-skin contact is necessary for an act to constitute sexual assault, Judge Ganediwala wrote otherwise.
"Considering the stringent nature of punishment provided for the offense, in the opinion of this court, stricter proof and serious allegations are required," she asserted in her judgment. "It is the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime." The judge acquitted the man of sexual assault. Nonetheless, Ganediwala did convict him on the lesser charge of molestation, sentencing him to one year in prison. Sexual assault carries a minimum three-year prison term which can then be extended to five years depending on the severity of the crime.
The backlash against the judgment has been fierce. The National Commission for Women announced that it planned to mount a legal challenge against the ruling, which would have a "cascading effect on various provisions involving safety and security of women." Eminent voices in law, too, voiced their opinions. Karuna Nundy, a lawyer at the Supreme Court of India, tweeted, "There has got to be retraining and temporary suspension of judges who pass judgments completely contrary to established law and violating basic rights. Judgments like this contribute to impunity in crimes against girls." Ranjana Kumari, the director of the non-profit Centre for Social Research, which advocates for women's rights in India, called the verdict "shameful, outrageous, shocking, and devoid of judicial prudence."
National Commission of India has stated that it will challenge the Bombay High Court judgement which held that pressing the breast of a child aged 12 years without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 of POCSO Act@NCWIndia pic.twitter.com/NVNgBLOHEU— Bar & Bench (@barandbench) January 25, 2021
Sexual assault is a prevalent crime in India, with many cases going unreported. Just last month, a young girl belonging to the Dalit community, an "untouchable" race or caste, was sexually assaulted with impunity. The country's justice system colluded to prevent her family from receiving justice, and her case was treated with the utmost cruelty despite voices in support of justice for the victim. In contrast, the Jyoti Singh sexual assault case of 2012 lit the country ablaze with protest. Thousands took to the streets demanding stricter policing, but little has changed.