The Bombay High Court judgment on sexual assault: A serious matter

The facts that foreground the recent decision of the Bombay High Court in Satish Ragde v. State of Maharashtra are brief, but significant. The crime occurred in December 2016, when the victim was 12 years old. She is said to have left the house to buy guavas but did not return for a time long enough to alarm her mother, who proceeded to venture out to look for her.

A neighbour informed the mother that she had seen the accused take the child into his house; the mother proceeded to confront the accused, and went up to the first floor of his house to find that a room had been bolted from the outside. She discovered, upon opening the door, that her daughter had been locked in the room. The child was crying. She then proceeded to tell her mother that under the pretext of giving her a guava, the accused had lured her into his house and proceeded to press her breast and tried to remove her salwar. A First Information Report was lodged immediately thereafter.

The Special Court found that the accused was guilty of offences under Sections 354 (a statutory relic that criminalizes assault with intent to “outrage the modesty of a woman”), 363 (kidnapping) and 342 (wrongful confinement) of the Indian Penal Code, 1860 (IPC) and of sexual assault under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Section 8 criminalizes, amongst other things, the act of touching the breast of a child, with sexual intent.

The minimum punishment for offences under Sections 354 and 342 of the IPC are one year each, with no stipulated minimum for the offence under Section 363. The minimum punishment for sexual assault under POCSO is 3 years’ imprisonment.

The decision of the Bombay High Court, in its turn, is also brief but significant. The fact that the accused pressed the victim’s breast is not found to be disproved. However, the Court observes that it was “not the case of the prosecution that the appellant removed her top and pressed her breast.” The Court holds that while it would fall within the contours of the offence under Section 354 of the IPC,

“...the act of pressing of 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. … As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”

The difference in severity of punishment is also alluded to.

Since the decision, much has been said about the fact that the Court has introduced a requirement into the substantive provisions of Section 8 that is equal parts untethered to the plain language of the text and unexplained in the Court’s reasoning. Reports indicate that the Supreme Court stayed the judgment yesterday, on a special mention by the Attorney General, who argued that it would set a very dangerous precedent and cripple the statutory intent of POCSO.

Not enough, however, has been said about two observations made by the Court that underpin its conclusion. The first, that “considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required”; and the second, that “it is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.”

To translate these observations into practical terms, the implication is this: being groped, even as a child of 12, is not a matter that is serious enough to visit harsher consequences. The judgment does not merely read into the statute a requirement not otherwise found in it; it operates to diminish the experience of children, and especially young girls, who suffer acts of sexual terrorism every single day. The ramifications are terrible also for young boys, to whom Section 354 does not apply.

There is a reason this decision has seen such backlash, particularly as it applies to girls. Most women can see a mirror of her own lived experiences in the facts of this case. You will sooner find a unicorn than you will a woman who has regularly navigated public spaces and has not been groped by unwelcome hands. Very often, this happens when we are just children, vulnerable and unable to do more than scream, or run. It happens on buses. It happens in trains. It happens in movie theatres. It happens when we walk down streets, crowded or empty. It happens when we wait at traffic signals in our school uniforms. And when it happens (which is far more often than one might think) it is no less serious and no less traumatising because we are fully clothed. To judicially impose a higher test and a lower punishment than the law contemplates is to turn a blind eye to these transgressions.

Instances of sexual assault are strange animals - abundant, but rarely seen; as widespread as they are underreported. It is precisely on account of this that the law ought to be implemented strictly on the rare occasion when proceedings are in fact instituted. The judgment is not only incorrect, it is regrettable.

The author is a civil litigator at the Bombay High Court.