Can the Bombay High Court’s Ruling on What Constitutes Sexual Assault Make Committing Crimes Easier for Predators?

Sahej Marwah
·3-min read

On 19th January, the Nagpur division of the Bombay High Court passed a judgement stating that groping someone without “skin-to-skin contact” and without sexual intent will not fall within the purview of sexual assault according to the POCSO act. The HC also added that touching a minor’s chest without disrobing them will not be considered assault either unless one slides their hand under the victim’s garment. This judgement was passed by Judge Pushpa Ganediwala, a senior female judge, while revisiting an appeal filed by a 39-year-old against his imprisonment for assaulting a 12-year-old after being convicted in this case. This ruling met with an abundance of criticism and justified outrage online.

Judgements such as these are extremely detrimental to the cause of sexual assault and harassment. To begin with, it manipulates the bracket of what consists of sexual assault by creating a grey area which directly translates to the acquittal of harassers who function within this unclear definition. For them, this is a legal loophole that works in their favour. Moreover, it neglects instances wherein assault takes place without direct physical contact. It redefines assault by providing a larger radius and diluting its understanding to that being only by direct physical touch. This gives leeway to harassers whose actions now come with limited impunity and sets a dangerous precedent for the future. It must also be noted that this judgement neglects the idea of “sexual intent” as mentioned in the act. Which harasser gropes without malicious intent to sexually harass?

There are plenty of factors that deter women from reporting such crimes. A judgement such as this will push them further into the margins. Assault and harassment in the form of groping and eve-teasing take place with an alarming frequency in the country. By limiting what constitutes assault, women are more likely to not report incidents and thus, society as a whole will be neglectful of these atrocities. This adds to the mounting problems that women face in the city and robs them of their access to public places. What lies at the heart of this matter is the lack of understanding of consent.

The core problem in the case of Bombay HC or Delhi HC is this: it neglects the understanding of consent that comes with body and body language

In addition to this, it completely negates voyeuristic fetishes when it comes to minors. It pushes an already vulnerable section of society into a more compromised position where their safety is at risk at a very young age. In this case, the lack of evidence and intent resulted in the perpetrator being booked under section 354 of the IPC for “outraging the modesty of a woman”, which comes with a lighter sentence (of one-year imprisonment as opposed to three-to-seven years in jail) because it qualifies as a minor offence.

In the same vein, the Mahmood Farooqui rape case from 2017 was dismissed. In this case, the Delhi High Court ruled that for it to be a withdrawal of consent, it must be an “emphatic no”. In his sexist tirade, Justice Ashutosh Kumar also questioned “female behaviour” and its fickle nature. According to him, “ may not necessarily always mean yes in case of yes or no in case of no,” because, obviously, women are incapable of taking independent decisions.

The core problem in the case of Bombay HC or Delhi HC is this: it neglects the understanding of consent that comes with body and body language. The court perceives this breach of consent simply as “an outrage of modesty” whereas the trauma inflicted by it is far more complicated. With legal authorities passing judgements so antithetical to the cause of women’s rights, it results in the movement taking two steps backwards. It is extremely disheartening when a system that is meant to protect acts as an enabler. It is only a matter of time that women will be left with a handful of tokenistic rights in the name of equality.