Bombay High Court’s Flawed Logic On Sexual Harassment

by Kareena Dodeja
Bombay High Court’s Flawed Logic On Sexual Harassment

February 3, 2021

The Bombay High Court recently ruled that groping a minor's breast without "skin to skin contact" does not amount to sexual assault under the POCSO Act. It shook Indian netizens, and rightly so.

The Bombay High Court in Mumbai, Maharashtra

The recent Bombay High Court verdict on sexual assault led to a significant controversy on social media. It sparked a lot of hate and the fact that a sitting female judge passed such a judgement of flawed logic added to the heat.

Justice Pushpa V Ganediwala ruled in a case about sexual harassment in front of her bench that the allegation was not “severe enough” for a stringent punishment under the law. Her court elucidated that the provision had to be interpreted under Section 8 of the POCSO Act.

The judgement mentioned how the law requires stricter evidence to substantiate the offence about sexual abuse and harassment. The judge merely said that groping the breast of a minor ‘over the clothes’ does not necessitate a grave punishment in the situation at hand, under the law. 

The Bombay High Court did not hold the accused man guilty of ‘sexual assault’ as per the law under section 7 of the Protection of Children from Sexual Offenses (POCSO) act as there was no ‘skin-to-skin’ contact. However, the court held the man guilty of ‘outraging the modesty of a woman under Section 354 of the Indian Penal Code (IPC).

Representational Picture of a Girl who had been three months pregnant when she was rescued from a Bus Stand in Sundergarh District, had accused her stepfather, two friends and two policemen of sexually exploiting her.

Problematic Reverse Judgement

The judgement, prima facie, is a highly problematic one and drew criticism for its almost “pardoning” interpretation of the offence. The ruling further highlights the concept of the mandatory minimum sentence in legislation. The Nagpur Bench of the Bombay High Court reversed the session court’s decision, which convicted the accused 39-year-old Bandu Ragde under Section 8 of the POCSO Act and sentenced him to three years.

The court said that the convict groped the child over her clothes, so there was indirect contact and would not be considered sexual assault. The verdict of groping did not fall under the definition of sexual assault, and Justice Ganediwala modified the sessions court’s order.

Intricate Details of the Case

There is no denial of the High Court and the trial court’s evidence found in the case. It was produced by the prosecution and accepted by the courts.

The critical details of the point being that the accused had taken the 12-year-old girl to his house under the pretext of giving her guava. He took her to a room where he pressed her breasts and tried to take her salwar off. The girl’s mother searched for the girl and was informed by the witnesses that the girl had entered the accused’s house. The accused locked the door from outside when he met the mother of the girl. The mother found the door shut and bolted from inside, and found her daughter crying. 

The court found the accused’s act not amounting to sexual assault by interpreting the terms’ touching’ and ‘physical contact’ in the literal sense and narrowed down that there must be a skin-to-skin contact for the action to qualify as sexual assault. 

A 12-year-old girl in Bhopal was allegedly raped by 3 men she met online, police said (Representational)

The Flawed Logic in this Case

There is no reasonable understanding of why there is a distinction between the actions with clothes worn or removed. The interpretation defines the purpose of the POCSO Act “to protect children from sexual violence”.

The court accepted the evidence but disregarded the application of law brought into force to protect children from sexual abuse. The requirement from the act is to keep in mind the sexual intent and touch. The regressive approach of interpretation, in this case, is based on flawed logic.

The court brought around another point on how the crime’s punishment must match the offence’s seriousness. Legal experts argued that mandatory sentences given to reduce crime aren’t worth it. They recommended that judicial reform should make their sentencing process transparent.

p w wmn80834 stand up to sexual harassment lg
You can’t believe it’s happening to you: unwanted sexual advances from a co-worker who is requesting sexual favors.

Difference Between POCSO and IPC in this Case

Section 7 of POCSO

Whoever with sexual intent touches the vagina, penis, anus, or breast of the child or makes the child feel 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. (Punishment is prescribed to 3-5 years imprisonment)

Section 354 of IPC

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year which may extend to five years and shall also be liable to fine.

Varying Convictions

Sexual assault under POCSO carries a minimum sentence of 3 years and a maximum punishment of 5 years. Outraging a woman’s modesty under IPC carries a minimum sentence of 1 year and a maximum of 5 years. In this case, the accused was convicted under 354 IPC and sentenced to prison for one year.

This was viewed as not severe enough just because the victim was wearing clothes. The court judged the case with more in-depth analysis and interpreted it on technical grounds. Many people took to social media to vent their dissatisfaction in this case. People were upset with how a woman justice ruled on the case with no regard for the victim’s trauma.

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