TW: Sexual Assault 

Lawmakers of the world decide what is right and what is wrong, but what do we do when those decisions fail to support victims of abuse?

To this day, India’s judicial system has proven time and time again to undermine the experiences of victims, and give perpetrators of abuse an opportunity to avoid punishment. 

A recent ruling by Bombay High Court in India has ignited controversy and sparked outrage, as Justice Pushpa V Ganediwala ruled that “groping without skin to skin contact is not sexual assault.”

This ruling came out earlier this week when a man named Libnus Kujur appealed his five-year sentence for sexual assault, just days after Ganediwala ruled in a different case that, “holding the hands of a five-year-old girl and unzipping pants do not amount to 'sexual assault' under the POCSO Act,” 

The POCSO Act is the The Protection of Children from Sexual Offences Act.

Kujur was found guilty by a lower court for his crimes against a 12 year old girl where it is reported that he pressed the 12-year-old victim’s breast and attempted to remove her salwar, at which point the child screamed and was able to escape with help from her mother.

Justice Ganediwala stated that it is “highly impossible for a single man to gag the victim and remove her and his clothes at the same time without any scuffle,” and acquitted Kujur of the crime.

Ganediwala ruled that “... in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside her top and pressed her breast, would not fall under the definition of ‘sexual assault', but it would certainly fall within the definition of section 354 of the IPC (Indian Penal Code), which penalises outraging the modesty of a woman.... groping a minor's breast without 'skin to skin contact' cannot be termed as sexual assault,

Although one can understand that there must be sufficient evidence in order to find the accused guilty under law, this type of ruling gives perpetrators an opportunity to escape the repercussions of their actions, and sets the precedent for this blatant denial of justice to continue.

The sole purpose of legislation such as the POCSO Act is supposed to protect children, but when perpetrators are acquitted of their crimes, it gives a clear message that this type of criminal behaviour is accepted in society, and neglects to consider the trauma of survivors under the law.

India is a country with a terrible track record on rape and sexual violence, and victim experiences often go dismissed.

A study conducted in 2007 by the Ministry of Women and Child Development interviewed 12,477 children in India, of which 53% reported experiencing some form of sexual abuse. This does not take into account the plenty of cases that go unreported each year. 

The effects of Child Sexual Abuse (CSA), are astronomical, and can range between both short term and long term impacts.

According to a study conducted by Vikas Choudhary titled Child Sexual Abuse in India: A Systematic Review, CSA is known to “interfere with growth and development, is linked to numerous maladaptive health behaviors, poor social, mental and physical health, can affect neuro-biological systems, lead to relational challenges, violent behaviors, and an increased risk of perpetration of CSA as adults. 

CSA is a world issue, and it is vital that those who are in positions to enforce the law are able to take appropriate action and play their role in bringing appropriate justice to victims and their families, without minimizing their lived realities.

Unfortunately that is not always the case, and Justice Ganediwala cannot be regarded as one of those individuals. 

In fact, following these two rulings, The Supreme Court Collegium withdrew its approval to a proposal for the appointment of Justice Ganediwala as a permanent judge. 

It is paramount that we continue to hold our justice systems accountable and speak up to ensure that perpetrators of violence are punished for their actions. 

In the cases of the five-year-old girl and 12-year-old girls mentioned above, as well as millions of other children worldwide, justice was not served. 

We as a community, as individuals, and as humans all share a responsibility to keep our children safe. 

Ruling that “skin to skin contact is not sexual assault,” is a step in the wrong direction. 

Fortunately, Justice Ganediwala’s ruling has sparked conversation about CSA and the role that our judicial systems play in bringing about justice. 

The withdrawal of her promotion should serve as a reminder to all members of parliament in India of their responsibility towards its children, and wider community at large.

We will not turn a blind eye to sexual violence.


About the author: Manisha is a freelance writer with experience on both radio and television, who is also the former titleholder of Miss Fiji Canada 2017. She is an artist, poet, and an SFU alumnus with a Bachelor of Arts Degree in Communications. Manisha is the creator of the platform Bula Mental Health which is dedicated to bridging the gap between history, current events, and overall well-being. Check her out on Instagram: @exclusivelymanisha

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