One is driven to call out the judge of the Nagpur bench of the Mumbai High Court, who, in an extraordinarily retrograde judgement, has ruled that the offence of sexual assault under Section 7 of the POCSO Act does not apply when a child is molested, and cannot be considered a victim of attempt to rape unless there is “skin to skin” contact. Section 7 of the POCSO Act states: “Whoever, 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 have committed sexual assault.” The judge overruled the judgement of the Additional Sessions Court which had held the accused guilty. This was done ostensibly because the judge considered three years as the minimum sentence of the crime under Section 7 too stringent, presumably on the doctrine of “proportionality”. In the words of the judgement, “basic principle that the punishment for an offence should be proportionate to the seriousness of the crime”.
But first let’s look at the facts as recorded in the judgement. On December 12, 2016, a 12-year-old girl who the judgement unkindly describes as “she might not have that mental intelligence” was going to buy herself some fruit when a 39-year-old man living in the same locality took her hand and said he would give her some fruit. When the mother started looking for her child, a neighbour informed her that the child had been led away by the accused. The mother went to the house of the accused; he denied that the girl was with him. She searched the house, forced open a bolted door and found her daughter crying. The child told her that the man had pressed her breasts and tried to take off her salwar. When she started screaming loudly, he went out and locked her inside. If the child is disabled, as the remarks of the judge imply, the crime is all the more serious.
In our jurisprudence, as far as sexual crimes are concerned, there has been a history of gross insensitivity which looks at the crime from the male aggressors point of view and not the woman or the child victim. What effect does an action with sexual intent have on the victim, more so in the case of a child? In 1972, a young Adivasi girl in Maharashtra, just 14 years old, was gang-raped inside a police station; the Supreme Court stated that the absence of protest and visible marks on her body showed consent. The judgement acquitting the accused stated “Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her”.
For decades, the term “Eve-teasing” was used to describe sexual harassment. “Eve”, the Biblical figure who tempted man with her sexuality to eat the forbidden fruit, therefore presumed as born to be “teased.” Even now, the crime of sexual harassment under Section 354 of the IPC is described as “outraging the modesty of a woman.” This is not just a semantical issue of Victorian language, but leads and feeds into cultures that demand that a woman through her dress and behavior observe the norms of “modesty” – else, she is “asking for it.”
A woman’s bodily integrity and her control over it has not been the basis for the legal framework we have had in this country. For a child, neither was there a separate law to deal with the different degrees of sexual assault nor were the judicial procedures at all sensitive to her. The child was made to stand in open court, frightened, often crying, often unable to describe her nightmare as she was questioned of the details of the assault by lawyers of the adult accused.
It is the courage of rape survivors and women’s organisations and movements and sensitive citizens who forced changes in the laws to try and make the victim of a sexual crime the centre of the processes of justice. It is these combined efforts which changed the laws after the Maharashtra case, then again after the Nirbhaya case and which also resulted in a separate law for the protection of children from sexual crime. It took decades of injustice before the child’s trauma was recognized and reflected in the legal framework we now have. Is the framework the best possible? Perhaps not. Is the punishment sentence appropriate? Those of us who are against the death penalty have argued that it is not the stringency of the punishment, but the certainty of the punishment which is missing in our justice system. We argue that not on grounds of proportionality but because there is strong evidence that the death sentence does not prevent rape; on the contrary, it makes the victim more vulnerable to being killed so that she does not live to share her account of the crime and the punishment less likely. There has to be a logical critique if laws are to be amended to make the sentence “less stringent”, the issue raised by the Nagpur judgement.
It is the reasons given in the judgement which raise serious questions of the competence and standards of those mandated to bring justice in sexual assault cases. For the judicial officer, it may be more serious if she was groped under her shirt, for the terrified child, the effect is the same: a violation of her body. In addition, the man was trying to pull off her salwar. Is this not sexual assault? In fact, the error is that the charge of attempt to rape was not included in this case. The law states “touch” the breast, it does not say “the naked breast” – where does this interpretation used in the judgement stem from? Perhaps from the reality that sexual assault of children has become so commonplace that the protection of the child and punishment of the predator requires, according to the judgement “more serious allegations”: 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.
Such reasoning is unacceptable, both from the legal point of view of what the law states, as well as the extent of the crime. It will set a dangerous precedent. Here the child escaped what was clearly the intent – a penetrative sexual assault – but to minimize the crime is to give licence to those who believe children are easy prey.
The judgement is atrocious. It will surely be appealed against. But it reminds us of the long way we have to travel in our struggles to bring justice to children and women who are victims of sexual assault.