Trigger Warning: Mentions of sexual assault and rape

In 1972, a 16-year-old tribal girl, named Mathura from Chandrapur District of Maharashtra, was raped by two drunk on-duty policemen in the police station. 

When the Mathura rape case first came for hearing in the sessions court in 1974, the court stated that Mathura was habituated to sexual intercourse and that her consent was voluntary. Under the circumstances, only sexual intercourse could be proved and not rape. 

The judgment on Mathura rape case (1974) was challenged in the Nagpur Bench of the Bombay High Court, wherein the court punished the accused. The court mentioned in the judgment that “Passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.”

Subsequently, the judgment was challenged in the Nagpur Bench of the Bombay High Court, wherein the court punished the accused. The court mentioned in the judgment that “Passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.”

After almost 5 decades — and a few amendments of the country’s laws— in a recent case of sexual assault of a 12-year-old girl child in Maharashtra, the Nagpur Bench of Bombay High Court overruled the session courts 2020 judgment of convicting the accused for 3 years. On 19 January 2021, a single-judge bench of Justice Pushpa V. Ganediwala said that touching a minor girl’s breast without removing the top would not fall within the definition of sexual assault, but would be termed as outraging the modesty of a woman under the Indian Penal Code (IPC).

This led to his punishment being reduced from three-year rigorous imprisonment — the minimum under Section 8 of the POCSO Act, which lays down punishment for offenses listed under Section 7 — to a year’s rigorous imprisonment — the minimum under Section 354.

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On 19 January 2021, Justice Pushpa V. Ganediwala of the Bombay High Court said that touching a minor girl’s breast without removing the top would not fall within the definition of sexual assault.
On 19 January 2021, Justice Pushpa V. Ganediwala of the Bombay High Court said that touching a minor girl’s breast without removing the top would not fall within the definition of sexual assault. Image Source: India Legal

From the Mathura rape case to this incident, the progression or regression of the country’s judicial systems remained erratic, but the struggle to achieve personal or social justice consistently remains a laboursome process. This judgement deserves to be looked at critically as it tends to perpetuate prejudices around child protection, sexual assault and laws around it. 

Also read: Book Review: Sex And The Supreme Court Edited By Saurabh Kirpal

Misinterpretation of the law

The trial court found the accused guilty under Sections 354, 363 (kidnapping) and 342 (wrongful confinement) of the IPC, and Section 8 (punishment for sexual assault) of the POCSO Act 2012. He was sentenced to three years’ rigorous imprisonment and a fine of Rs 500 was imposed on him. The accused then filed an appeal in the high court. 

The high court took the liberty to (mis)interpret section 7 of POCSO and the word ‘touch’ and stated that the act of groping a child’s breast, without any skin-to-skin contact and sexual intent, is not sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. 

The POCSO Act defines sexual assault 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 is said to commit sexual assault”.

The content and intent of the law never recommended that the word ‘touch’ specifies only skin to skin contact to account for an act as sexual assault. Such ignorant choice of words and misinterpretation perpetuates the idea that brushing your hands against a child’s body or genitals without the contact of skin, is permissible. 

Outraging modesty and the body of children

The Nagpur bench of the Bombay High Court emphasised the difference in punishment for the offense and overruled the applicability of the POCSO act. The court suggested that the offense only attracts section 354 of the IPC. It seeks to punish anybody who “assaults or uses criminal force to any woman, with the intention to outrage her modesty”.

Only emphasising on outraging modesty of a woman and not outraging modesty and body of a child sets a dangerous precedent. Looking at the victim as only a woman and not a girl child undermines the vulnerability that the age of a person adds in cases of sexual assault. A person is referred to as a ‘woman’ when they are an adult. Ignoring this might further influence the protection and treatment a child needs in cases of child sexual abuse. 

Another debate is on how the terminology of outraging the modesty itself The POCSO Act was especially introduced to deal with offenses that target children, including sexual abuse and pornography. It widened the scope of reporting offenses against children, which were not covered under the Indian Penal Code. Not only the Act advocates and practices child-friendly measures but is also one of its kind gender-neutral Act. It acknowledges that a victim of sexual abuse can be both a boy child and a girl child, as well as, the perpetrators can be both men or women. Though there’s much more scope to truly make this act inclusive for trans-non-binary children, it assures protection to every child. 

POCSO encompasses specific provisions for children that ensure the holistic support and well being of the child. For example, providing a support person, the involvement of CWCs, placing the burden of proof with the accused, guidelines for police officials to deal with children, etc. 

Establishing the irrelevance of POCSO in such cases might make it more difficult to file cases of child sexual abuse and access relevant provisions and support under the Act. Twisting the Act and highlighting loopholes contributes to the assault culture. 

To further emphasis on identifying victims of child sexual assault as children primarily, one should also think, what if the victim is a boy? If the view taken by the Bombay High Court is accepted, then no punishment is possible since section 354 IPC does not include a ‘male’ victim. 

Hierarchy of sexual assault and the ‘ideal victim’ 

India is a country that witnesses sexual assault every day. Yet responses and mass outrage only find their way when the netizens’ consciousness is evoked by the cases of sexual violence that fits our perception of an ‘Ideal victim’; one who has not only been violated and assaulted, but their bodies are mutilated, heinous aggression has been performed on them, bodies that aren’t alive anymore. 

The outrage is directly proportional to the aggravation of sexual assault. Such biases, the hierarchy of sexual assault– in cohesion with the perception that the gravity of assault is proportional to the trauma of the victim– trivialises ‘sexual assault’ and reduces it to a textbook definition. 

The high court judge thought the ‘proportionality’ of the conviction and the crime committed by the accused wasn’t corresponding. Do we have an excel sheet to monitor and evaluate the intent and impact, the violence and trauma, the severity of offence and the punishment? There can neither be a sheet nor an excel formula that evaluates touching ‘skin-to-skin’ results in more trauma or just staring at someone’s body sexually or groping over the clothes or showing pornography to a child. 

According to the judgment, abducting a child, locking her up in a room, pressing her breast, trying to take off her salwar are not serious enough allegations to warrant a three-year prison sentence but needs “more serious allegations”.

This doesn’t only mistreats the victim of this case, but all the other victims of child sexual abuse, all the other women who have periodically been subjected to sexual objectification, all the queer-trans individuals who had similar encounters and could never speak of them in fear of being dismissed. Dismissing the occurrence of sexual abuse is anyway a norm, institutionalising it through the law, acts, and judgments, further feed into this norm. 

What’s Next? 

The National Commission for Women on 25 January, 2021 said it will challenge in the Supreme Court the Bombay High Court judgment which said groping without “skin to skin” contact is not a sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

The National Commission for Women on 25 January, 2021 said it will challenge in the Supreme Court the Bombay High Court judgment which said groping without “skin to skin” contact is not a sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

Meanwhile, the National Commission for Protection of Child Rights (NCPCR) has written to the Maharashtra government asking it to file an urgent appeal against the verdict. 

Coming back to the Mathura Rape Case, when the case went to the Supreme Court in 1979 (almost 7 years after Mathura was raped.) The Supreme court passed a very regressive judgment.

The court acquitted the policemen by stating that Mathura had raised no alarm, there were no visible marks of injury on her – thus suggesting there was no struggle, so it can’t be rape. It mentioned that because she was used to having sex, she must have incited the cops to have intercourse with her. 

As a reaction to this ruling, professors from Delhi and Pune wrote an open letter to the Supreme Court – they asked the court: “Consent involves submission, but the converse is not necessarily true. From the facts of the case, all that is established is submission and not consent. Is the taboo against pre-marital sex so strong as to provide a license to Indian police to rape young girls?”

Also read: Karnataka HC Judge’s Remarks On Rape Survivor Reflects The Sexism In Indian Courtrooms

Thus in 1980 for the 1st time, the government of India looked at the amendment in the rape laws in the country. It acknowledged the importance of the testimony of the victim, IPC Section 376 i.e. Punishment for Rape was made elaborate (Section 376 A, B, C, D, were added and custodial rape was made punishable) and the burden of proof shifted from the victim to the accused. 

Change can be laboursome, emotionally and physically, but isn’t impossible. Hope justice unveils in its true sense soon.


Featured Image Credit: Aasawari Kulkarni/Feminism In India

About the author(s)

Sudipta Das(He/They) is a communications professional having experience of working on issues around gender-based violence, child rights, queer rights and sexuality. They have been an India Fellow'17 and a Likho Citizen Journalism Fellow'19. They believe in intersectional feminism and wish to write elaborately on the subjects of media, caste, sexuality and mental health.

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1 COMMENT

  1. As I was unsatisfied with media reports and also due to my general distrust in media/social media/digital media in this age of (dis)information, I had read both the court orders completely from Nagpur high court (that reduced the sentence) as well as the earlier special sessions court (that found the accused guilty under POSCO). Based on the court order I was convinced that the Nagpur bench court’s hands were tied due to imperfect definition of sexual assault in the act and the court had applied the “literal interpretation” and ejusdem generis principles of interpretation and construction of law correctly. So I concluded that the legislature had to be blamed instead of the judiciary. But this article is so well written it has convinced me that the judge has indeed misinterpreted the wording in the act. The judge’s misinterpretation goes against the context set in POSCO. After going through a lot of articles from news agencies like the wire to sccopwhoop to CNN to BBC to India Today to Logical Indian to The Hindu to zeenews to Swarajya to Opindia, I am finally satisfied by this article. There is a fair amount of critical thinking that has been done by the author before writing this article instead of just outpouring emotional outrage. So thank you for the article. However as I am inherently distrustful of “isms”, ideologies, religions and groupings of any kind under any label, I also have looked at this article critically as it is published under femin”ism” in india. There are some things I do not agree with. It might be because of my ignorance or bias or it could be that the author might be illogical – I do not know. It would be great if the author can explain why he had included staring at someone’s body sexually in the following sentence from the article “There can neither be a sheet nor an excel formula that evaluates touching ‘skin-to-skin’ results in more trauma or just staring at someone’s body sexually or groping over the clothes or showing pornography to a child”. My issue with this is because of the following

    1. Who decides that Staring at someone’s body was done with a sexual intent ?
    2. How can one say that the stare was sexual in nature?
    3. Is there a time component to consider to decide if it was sexual? If so should it be 1 second, 5 seconds, 5 minutes, 1 hour? Who decides this? Why and how?

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