February 18, 2021
On January 19, 2021, a Bombay High Court judge made a ruling that sent shockwaves across the nation and beyond. It seemed to be a straightforward case — a lower court had convicted a 39-year-old man of sexual assault for groping a 12-year-old girl’s breasts. But the man had appealed the decision and Justice Pushpa V. Ganediwala reversed the lower court’s finding. Her reasoning? Since the man had groped the girl through her clothes, “there [was] no direct physical contact, i.e. skin to skin with sexual intent without penetration.” Thus, the contact was not sexual assault.
It was the rare sexual assault case where there was a plethora of evidence, including four witnesses: the girl’s mother, a neighbor who heard a scream, and two police officers. That the man had pressed the girl’s breast was not in dispute; the prosecution had made its case successfully. In a country rife with institutional bottlenecks and victim-blaming, in which rape convictions are alarmingly low (only 27.2% of rape cases lead to conviction), this was already an achievement. However, the judge held the defendant not guilty of assault under the newly-introduced Protection of Children from Sexual Offences (POCSO) Act, making the ruling all the more ironic.
In just the past year alone, two decisions — namely the above Nagpur case and the Madhya Pradesh case (wherein a judge directed a victim to tie a rakhi on her assailant) — have come under fire for being misogynistic. Although the Indian Penal Code has seen several reforms in the last decade, there has been no corresponding improvement in the plight of victims. Measures such as extreme sentencing — in the name of protecting women and girls — instead discourage reporting of sexual assault. These judgments, especially contextualized in the legal history of India’s Penal Code, illustrate how the Indian courts repeatedly fail victims.
For decades, India’s legislation on sexual assault has been woefully inadequate: much of it is a holdover from colonial times. The Indian Penal Code (IPC), introduced in 1860, has remained largely unchanged since. According to Section 375 of the IPC, rape is an act committed upon a woman by a man. The language of the law is not gender neutral and does not address same-sex assault or assault upon a male child.