Esha Dinesh, a student at the Faculty of Law, Delhi University after reading about the Bombay High Court Verdict regarding skin to skin ruling on sexual assault case of a minor girl took an initiative to raise a voice.
The student triggered by the incident wrote an open letter to the Chief Justice of India to focus on the current judgment delivered by the Bombay High Court regarding sexual assault and prevent the high court from setting a wrong precedent amidst the failing and horrible present situation of women of this Nation.
An Open Letter to Chief Justice of India Against Skin to Skin Ruling
Your Lordship,
I, as an Indian citizen and a law student, take the liberty of writing this open letter to bring the recent judgment of the Bombay High Court in the focus of judicial attention. The decision was rendered by Justice Pushpa V. Ganediwala in Satish v State of Maharashtra Criminal Appeal No. 161 OF 2020.
The facts of the case are that the informant (mother of the prosecutrix) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point in time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant / accused vide Crime No. 405 of 2016 (Exh. 1) for the offense punishable under Sections 354, 363, and 342 of the IPC and under Section 8 of the POCSO Act. The said charge was read over and explained to the appellant / accused, which he denied.
In order to establish the guilt against the appellant-accused, the prosecution examined all five witnesses and also brought on record the relevant documents. After hearing both sides, the learned Court found the appellant / accused guilty of the crime registered against him and passed the judgment of conviction and sentenced him.
The Bombay High court held that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offense under Section 354 of the Indian Penal Code.
Your Lordship, in a situation where a few weeks ago a 50-year-old woman was brutally raped, ribs were broken, and private parts mutilated, and a few days ago where a minor was repeatedly raped when she asked for help from multiple men just to reach home, are women supposed to feel utterly vulnerable now thinking that any man can grope a girl and he will be let off easily? It is important to note that minor girls are the easiest target of such predators, and this will attract more trauma to all the victims that will suffer in the future.
The degree of punishment and its rigorous nature is to be decided by the honorable judges, but setting it out in public that pressing or grabbing breasts over a female’s clothing is not sexual assault is just an opportunity for all the ill-minded criminals to do as they please. This judgment will set an unwelcomed example that may be used by criminals in their hearings in court as precedent.
In the above case, the learned counsel could not point out from the record that the victim was not a competent witness and her answers to the questions were not rational. Secondly, immediately after the incident, she narrated the incident to her mother and on that basis, the First Information Report came to be lodged, and on the material point of facts, the testimonies of both, mother and daughter are consistent. Also, considering the undisputed fact that she was a minor of age 12 years, it’s a failure of the judicial system and the law and order that wasn’t charged under the POCSO Act.
The POCSO Act aims to offer protection to children (individuals below the age of 18) from sexual violence, namely sexual assault, sexual harassment, and the inclusion of children in pornography. It provides comprehensive legislation to safeguard the interest of a child at every stage – reporting, recording of evidence, investigation, and trial of offenses. It fulfills the mandatory obligations of India as a signatory to the United Nations Convention on the Rights of The Child.
The fact that the minor spoke to her mother, and they came forward to report the same is progress for India itself, which clearly shows the intolerance for such criminal behavior. On the other hand, not convicting the accused under the relevant act and dismissing the contention saying that pressing breasts over clothes isn’t sexual assault just brings us all down to the level of a hopeless situation.
Under POCSO Act, section 7 states Sexual Assault, and its ingredients are
(i) An act that must have been committed with sexual intent.
(ii) Act must involve touching the vagina, penis, anus, or breast of the child.
or making the child touch the vagina, penis, anus, or breast of such person or any other person; or doing any other act with sexual intent which involves physical contact without penetration.
The above section in no way states that skin to skin touch is mandatory for this section to be applicable. As far as the sexual intent is to be considered, no normal man without any sexual desire will grab a girl’s breasts. He was an adult and he was well aware of a girl’s modesty. Here, clearly, the intent of the convict is that of sexual desire. The possibility of false allegations should also be considered, but it is never seen that a minor will falsely accuse a man, specifically for grabbing her breasts. It is pertinent to note that even a minor has the right to consent. Only the victim knows the trauma she suffers from such sexual assault that happened at such a young age. Apart from the assault, why doesn’t the court consider the mental and emotional trauma a woman goes through, and in this case, a minor is going through?
This skin to skin ruling has become an open invitation for ill-minded men to do as they please and get away easily. The more lenient any law will be, the more it will provoke a man to break it. Even after so many horrifying rape cases, men still have the nerve to do the same with no guilt. The condition of Uttar Pradesh has worsened with each passing day, yet no judicial action is taken yet.
It is needed that the judges are more sensitive towards cases that involve minors. If not women, it is important that your honorable court does justice to minors. After the Nirbhaya case, our society moved towards a better road. Subsequently, a lot of cases similar to that of Nirbhaya happened, but it became too common for people now. Common people look up to the courts for justice and relief, and reading such a judgment has become not only controversial but a shattering news to every female in the country.
Your Lordship, in another case where the minor, who was repeatedly raped by several men just because she asked for help to reach home, is in trauma as we speak. Many other girls are being raped as I type this letter. Some are being set on fire, some are being brutally killed by the insertion of rods in private parts, or being strangled. I very well understand that change doesn’t take place overnight and the courts are doing their best to deliver justice, but amidst all this, delivering a judgment stating that pressing or touching of private parts of a woman will not amount to sexual assault unless there is physical contact, brings down all the efforts we have put in to make a difference in the society. This interpretation is an easy loophole for any criminal now, as they can assault any minor now and get away with a lesser punishment, just because they didn’t have skin to skin contact.
Your Lordship, this judgment is just one of the many loopholes in our law which lets the criminals get away easily with lesser imprisonment, which further leads to the state of our country as it is presently. India is the most dangerous country for women. This country is no longer civilized enough for a woman to breathe and live, let alone be independent. The situation has worsened to an extent where we have our fundamental rights restricted.
Your court has always been the epitome of justice, not only to citizens but for law students especially. Maybe on a re-examination of this judgment, your court will pronounce true justice.
I believe you will forgive me for this impertinence of writing an open letter to you. But the future of judicial protection of minors from such sexual abuse at the grassroots level in India at the turn of the century, a concern we all share as citizens and as lawmen, leaves us with no other and better alternative.
With best regards, sincerity, and greetings,
Esha Dinesh
Student at Faculty of Law, Delhi University”
The ongoing case has brought to light the necessity for a deeper understanding of what comprises a sexual offense, not from the viewpoint of the severity of penalty, it requires to incur, however, by way of rectifying the disservice caused to the victim and furnishing safe spaces survivors of abuse when it comes to noting sexual crimes.
The Bombay Highcourt’s skin to skin ruling will only leave a cascading effect on numerous provisions pertaining to the security and safety of women to deride.
