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Groping law in India sparks controversy

  • Vriddhi Khattar
  • Feb 28, 2021
  • 3 min read

Originally published: 4th February 2021


A couple of weeks ago, the Bombay High Court in India passed a ruling that groping a child through their clothes does not constitute sexual assault thus eliciting outrage across the country and frustrated campaigners battling to address widespread sexual abuse against women and children. Unfortunately, this denial of justice is a recurring theme dotting the landscape of a male dominated patriarchal society in India. When a rape case makes news headlines in India, it is almost always followed by urgent demands for retributive justice. For a couple of days, history repeats itself as angry citizens demand for the assaulter to be lynched in the public sphere. But here is the truth; only about a third of rape cases reported to the police result in a conviction. And this is one of those cases in the two thirds that was forlorn.


What happened?

That’s how every story starts. But here, Hollywood's promises of a happy ending are falsified as a young girl stands afraid in court to testify against her assaulter as it is proved through another woman that what she has been taught about ‘wrong touch’ is baseless as a man gets convicted of a minor crime of defamation rather than assault. Judge Pushpa Ganediwala, a woman, found that a 39-year-old man was not guilty of sexually assaulting a 12-year-old girl as he had not removed her clothes, meaning there was no skin-on-skin contact.

In 2016, the man brought the girl to his house under the pretext of giving her a guava and while there, he touched her chest and tried to remove her underwear. He was sentenced to three years of prison after he was found guilty of sexual assault by a lower court but then appealed to a Higher court.

It was in 2021 that it was said this act would not fall in the definition of 'sexual assault,' (which carries a minimum three year prison term which can be extended to five years) due to the lack of proof of skin to skin contact. According to Ganediwala, "Considering the stringent nature of punishment provided for the offense, in the opinion of this court, stricter proof and serious allegations are required.” Justice Ganediwala acquitted the accused of sexual assault but convicted him on the lesser charge of molestation and sentenced him to one year in prison and said that it is the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime.

It is fruitful to note here that India's Protection of Children From Sexual Offenses Act 2012 does not explicitly state that skin-on-skin contact is needed to constitute the crime of sexual assault. The National Commission for Women stated that the judgement would understandably have a cascading effect on the provisions concerning security and safety of women in India. A lawyer at the Supreme Court of India, Karuna Nundy, called for judges who passed judgements that were ‘completely contrary to established law’ and basic rights to be retrained and tweeted that ‘Judgments like this contribute to impunity in crimes against girls.’ Momentary relief was granted to justice when the Supreme Court was appealed to by India’s Attorney General since the ruling set a ‘dangerous precedent’. The nation held its breath as a ruling was awaited. Alas, ultimately, the supreme court sided with the Bombay High Court.

Sexual assault continues to be a huge issue in India where Sexual crimes are brutal and widespread but are often poorly dealt with by the justice system despite stricter reforms in 2012. It is under this very same legal system that sexually abusing a transgender person carries a maximum sentence of two years in prison. This is not one of those cases where it is one against all but rather us against the world of deeply rooted patriarchy in India. This is an ongoing battle for justice.


 
 
 

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