INDIA. New Delhi: A Jan. 19 judgment by a justice of the Nagpur Bench in the Bombay High Court held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. Pushpa Ganediawala stated in her verdict that mere groping will not fall under the definition of sexual assault. Activist Kavita Krishnan, secretary of All India Progressive, called it an outrageous judgment that goes against the letter of the law.
Nagpur case overturned; accused given a lesser sentence
Justice Ganediwala modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl. As per the prosecution and the minor victim's testimony in court, in Dec. 2016, the accused, Satish Ragde, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he groped her breast and attempted to remove her clothes, Justice Gandeiwala overturned the conviction on the grounds that since the accused groped the child without removing her clothes, the offence cannot be charged as sexual assault. Rather, Satish's actions constitute the offence of "outraging a woman's modesty" under IPC section 354.
While section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) requires minimum imprisonment of three years. The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and under IPC section 354. The sentences were to run concurrently. The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
Crimes against women on the rise
A total of 4,05,861 cases of crimes against women were registered during 2019, showing an increase of 7.3% over 2018. Crimes against Scheduled Castes also went up 7.3% in the same period. The majority of cases against women were registered under "cruelty by husband or his relatives", followed by "assault on women with intent to outrage her modesty", "kidnapping & abduction of women" and "rape". The crime rate registered per lakh women population is 62.4 in 2019, an increase from 58.8 in 2018.
Promote gender equality in all aspects of society
Despite amendments to criminal law for effective deterrence against the commission of rape and several measures in place for speedy investigation and trial of such cases, there is no diminution in crime against women in India. To curb this ongoing problem, India needs an efficient and effective law enforcement system. However, systemic change needs to occur within Indian society. Activists have been calling for such changes at all levels of Indian society: from academia to politics, to the judiciary.
The Constitution and women
The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education and political disadvantages faced by them.
But how well has India been able to tackle crime against women? Currently, a girl's safety is still at risk, and as evidenced by the Bombay High Court ruling, the consequences for her abuse are muted. Instead of pushing for harsher punishments to strengthen the criminal justice system, issues of gender inequality must be addressed systemically.