Updated: Feb 10
New Delhi: Touching the breast of a child without skin-to-skin contact is not sexual abuse.
Exposing a penis to a child while holding her hand is not sexual abuse.
It is not possible for a man to rape a woman without a scuffle.
Three recent judgments, Suraj v. State of Mahashtra, Libnus v. State of Maharashtra, and Satish vs State of Maharashtra, delivered by Justice Pushpa Ganediwala of the Nagpur Bench of the Bombay High Court caused a furore because of the reasons she gave while acquitting the accused. The uproar over these judgments has reportedly led to the Supreme Court’s collegium withdrawing its recommendation to appoint Justice Ganediwala as a permanent judge of the Bombay High Court.
In a recent article, lawyer and scholar Flavia Agnes disagreed with the assessment that Justice Ganediwala “lack[ed] exposure to the letter and spirit of the [Protection of Children from Sexual Offences Act].” She pointed out that as a trial judge, Justice Ganediwala had handled cases involving women and children with great sensitivity. She asked, but does not answer, the question: “What happened in this case?”
In this piece, I attempt to answer, looking at the three cases. I argue that Justice Ganediwala got the law wrong in all three, which is certainly a point of concern. More importantly, I focus on two systemic issues that these cases highlight. The first is the prevalence of stereotyping in rape adjudication. And the second is the impact on judicial behaviour of the harsh sentencing framework under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the rape law related provisions in the Indian Penal Code (IPC).
Stereotyping In Rape Adjudication
In Suraj v. State of Maharashtra, Justice Ganediwala ruled that it is not possible for a man to rape a woman without a “scuffle” ensuing. Lack of a scuffle, she reasoned, implies that the sexual act was consensual.
The accused in Suraj was charged for rape under the IPC and penetrative sexual assault under the POCSO Act. The accused had allegedly entered the victim’s house and had sexual intercourse with her without her consent. The girl’s mother seems to have entered the house right after the sexual act and subsequently lodged a first information report (FIR) alleging rape. The man had been charged under the POCSO Act since the mother had stated in her FIR that her daughter was 15-years-old. Since the POCSO Act defines a “child” as a person under 18, the accused had been charged under the Act.
However, at trial, the prosecution was unable to prove that the girl was under 18, and hence, the trial court acquitted the accused for the offence under the POCSO Act. The appeal was against the rape conviction.
While acquitting the accused, Justice Ganediwala fell back on various stereotypes relating to rape adjudication.
In earlier pieces and interviews, I have discussed how stereotypes have adversely influenced rape adjudication. In the Suraj case, Justice Ganediwala ruled: “[i]t seems highly impossible for a single man to gag the mouth of the prosecutrix and remove her clothes and his clothes and to perform the forcible sexual act, without any scuffle.” She then said that the medical evidence also did not support the contention of the girl that she was raped, since if there were to be a scuffle, there would have been injuries on her body. Justice Ganediwala thus accepted the accused’s contention that the intercourse was consensual.
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Justice Ganediwala relied on a stereotype that textbooks on medical jurisprudence perpetuated till recently that it is not possible for a single man to have intercourse with an adult woman against her will. The textbooks emphasised that there will be a “struggle” and such struggle will lead to injuries (as discussed here). In 2004, the Orissa High Court had acquitted a man of rape charges based on this stereotype–that the woman would struggle, stating that it is “well settled in law.” But in 2008, the Supreme Court overturned this decision and ruled that there is no such well-settled principle of law. Justice Ganediwala used this exact “principle” in her judgement.
As is clear, stereotypes such as this still inform rape adjudication in India, although multiple attempts have been made to rid rape adjudication of stereotypes.
When the IPC was amended in 2013, an explanation was added to section 375, which defines rape, clearly stating that if a woman does not physically resist an act of penetration, it does not imply that she is consenting to the act.
Justice Ganediwala seemed to have ignored this statutory mandate in requiring a “scuffle” to demonstrate lack of consent. In another part of the judgment, she also referenced the defence the girl being “habitual” to sexual intercourse, thus relying on past sexual history, which also is irrelevant in rape prosecutions.
Sentencing Framework & Its Impact On Judicial Behaviour
In paragraph 18 of the Suraj judgment, after noting that the minimum punishment for “sexual assault” is three years imprisonment and the maximum is five years, Justice Ganediwala said that due to the “stringent nature of punishment provided…stricter proof and serious allegations are required.”
In paragraph 20, she stated: “It is the basic principle of criminal jurisprudence that the punishment for the offence shall be proportionate to the seriousness of the crime.” She recounted the minimum sentence for sexual assault again (three years) and pointed out that the minimum sentence for the offence of “outraging modesty” under the IPC is one year. She then convicted the offender for the offence of “outraging modesty” and sentenced him to imprisonment for a year.
Justice Ganediwala’s assertion that “stricter proof and serious allegations” are required for convicting a person under the POCSO Act is legally wrong. The law does not make any such distinction. It imposes a standard of proving the case “beyond reasonable doubt” in all criminal cases, irrespective of the punishment for the offence.
Offences under the POCSO Act are no different. In fact, the POCSO Act controversially imposes a “presumption of guilt” on the accused. For certain offences under the Act (including sexual assault) it presumes that the offender has committed the offence. It is for offenders to prove that they did not.
The second assertion by Justice Ganediwala is that the punishment should be proportionate to the crime. In saying this, she articulates the theory of proportionality in sentencing.
The theory of proportionality is two-fold. First, it advocates that the penal code should classify offences based on their seriousness and fix the maximum punishment on a scale from minor to major offences. Then, as a second step, the sentencing judge examines sentences imposed on offenders for that particular crime (by themselves and other courts) and determines where the facts in the case before them fall along that spectrum. The sentence to be awarded is then decided based on the sentence imposed in similar fact situations.
The proportionality theory, strictly speaking, is not followed by Indian courts while sentencing offenders. In fact, as I argue elsewhere, courts hardly follow any theory of punishment while sentencing.
Does the POCSO Act follow the theory of proportionality in fixing maximum and minimum sentences? It does. The minimum sentence for penetrative sexual assault (Section 4, POCSO Act) is ten years, and the maximum is imprisonment for life.
In 2019, Parliament amended Section 4, providing a minimum sentence of 20 years if the child is under 16, and a maximum sentence of imprisonment for the rest of the person’s natural life. For aggravated penetrative sexual assault—say, if an offence is committed by police officers or if the girl gets pregnant as a result of the assault—the minimum sentence is twenty years and the maximum sentence is death.
As already noted, the minimum sentence for sexual assault is imprisonment for three years, and the maximum is imprisonment for five years. For aggravated sexual assault, the minimum sentence is imprisonment for five years, and the maximum is seven years. For the offence of sexual harassment, there is no minimum punishment. The maximum punishment is imprisonment for three years. In all these offences, where a minimum sentence is prescribed, the judge does not have the discretion to impose a sentence lesser than what the law prescribes.
Consenting Teenagers & The Need For Judicial Discretion
Data reported by the National Crime Records Bureau for 2019 indicates that nearly half of all cases under POCSO involve individuals in the age group of 16-18 years.
But the POCSO Act criminalizes consensual sexual acts as well, considering consent given by someone under 18 to be invalid. Hence, if a 17-year-old girl were to engage in consensual sex with her 19-year-old partner, and if the partner were prosecuted for the offence (by disapproving parents, for instance) he would be sentenced to a minimum of 10 years imprisonment, the punishment prescribed for penetrative sexual assault of girls between 16 and 18.
This lack of nuance in the law, where consensual sexual acts between young people, and cases of exploitative child sexual abuse are treated the same, combined with the harshness in the sentencing provisions, along with judicial discretion being taken away, seems to influence how judges approach these cases.
What is the position in the IPC? Until it was amended in 2013, a conviction for non-aggravated rape entailed a minimum sentence of seven years, and a maximum sentence of life imprisonment. If the offence was aggravated, the minimum sentence was 10 years. Until the amendment, judges, however, had the discretion of imposing sentences less than the minimum by providing “adequate and special reasons” for imposing lower than minimum sentences.
My study of 25 years of rape sentencing in India from 1984 to 2009 indicated that there was a problem with how judges sentenced, and how reasons that they gave to reduce minimum sentences were neither adequate nor special.
The nature of reasons that Justice Ganediwala gave were quite common when judges reduced sentences. I found this starkly exhibited in cases involving consensual sexual acts between young people, where courts seemed to indicate that criminalizing such acts, or providing harsh prison sentences was not the right approach.
In 2013, when the rape laws were amended, the sentencing discretion that judges had was removed–the “adequate and special reasons” clause was deleted. I argued in my book, based on studies in the United Kingdom and South Africa, that removing judicial discretion in sentencing would be counterproductive. The studies had shown that mandatory minimum sentences lead to higher acquittals. Judges do not convict unless the cases meet the “beyond all doubt” standard—a standard which is rarely achievable, and also not required by the law, the standard being proved “beyond reasonable doubt.”
Another recent study of sentencing in rape cases in Delhi argued that there was a co-relation between high mandatory minimum sentences and acquittals. This seems to be what happened in the three cases decided by Justice Ganediwala. It is definitely a point for concern, and introspection: Do increased sentences deter offenders, or do they deter victims from reporting, and judges from convicting offenders?
Getting The Law Wrong, Three Times
In Satish v. State of Maharashtra, the Court ruled that “sexual assault” as defined in the POCSO Act requires “skin-to-skin contact.” Hence, the accused touching the breast of the 12-year-old girl over her clothes did not amount to sexual assault.
In Libnus v. State of Maharashtra, the judge ruled that a man exposing his penis to a girl while holding her hand does not amount to sexual assault
Sexual assault is defined in POCSO as: “Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
The definition has three parts to it—touching the vagina, penis, anus, or breast of the child; making the child touch any of these body parts; and doing any other act involving physical contact, which is not penetrative. Importantly, the Act requires the prosecution to show that these acts of touching were done with sexual intent.
The POCSO Act does not define “sexual intent”. While defining sexual harassment, the Act states that “sexual intent” shall be a “question of fact”. In other words, the court needs to determine whether such an intent existed based on the facts and circumstances of the case.
It also states that in offences where the Act requires sexual intent (sexual assault, and sexual harassment) the court shall presume that such intent existed, and it shall be the responsibility of the perpetrator to prove beyond reasonable doubt that they did not have such intent. In other words, the Act is unhelpful in guiding the adjudicator on what “sexual intent” means, unlike for instance, the UK Sexual Offences Act, 2003, which defines “sexual” and “touching.”
Multiple cases of “inappropriate touching” of adult women have been adjudicated by courts under Section 354 of the IPC (outraging the modesty of a woman) and post-2013 under Section 354A of the IPC (sexual harassment).
The case of Rupan Deol Bajaj v. K.P.S. Gill, which defines the requirements of the offence of “outraging modesty” involved Gill, then director general of Punjab police slapping Bajaj, then a serving Punjab-cadre IAS officer, on her bottom, over her clothes.
It was held to be an offence under Section 354, and Gill was convicted. Hence, the “skin-to-skin contact” test advocated by Justice Ganediwala does not have legal basis. Moreover, the accused after touching the breasts of the young girl, attempted to remove her salwar—a clear indication of the “sexual intent” involved.
Justice Ganediwala erred in interpreting both the law and the facts in this case. Further, she convicted the accused under Section 354, IPC, wherein the prosecution has to prove that the accused had the intention to “outrage modesty” or had knowledge that by such act he would “outrage the modesty” of the woman. Convicting under Section 354 is a clear indication that the judge believed that inappropriate touching was constituted, and that the perpetrator knew that the act was sexual in nature. There is an inconsistency in her holding that sexual intent was not established in the case.
In Libnus, the mother of the five-year-old victim testified that she saw the accused holding her daughter’s hand and taking her into a room, as the young girl was pulling up her pants. She further testified that her daughter told her that the accused had exposed his penis and asked her to “come to bed.”
Justice Ganediwala reasoned that accused holding the victim’s hand or exposing his penis does not amount to “sexual assault.” Note that the definition of sexual assault as mentioned earlier has three parts to it. In this case the accused did not touch the body parts of the girl mentioned in the section—the vagina, anus or breast. However, his act does appear to fall within the third limb of the section—doing any other act with sexual intent with physical contact, but non-penetrative.
From the evidence, exposure of the penis, and asking the girl to “come to bed” is a clear indication of sexual intent. However, the court convicted the accused for the offence of sexual harassment under the IPC for making “physical contact and advances involving unwelcome and explicit sexual overtures.” The other issue in this case was that due to the age of the victim, the accused was charged with “aggravated sexual assault” which carries a minimum sentence of five years, and a maximum of seven. If the Court had found that the case was one of sexual assault, the judge would have had no option but to impose a sentence of five years on the offender. This, as I have argued earlier, probably explains the decision in this case.
In both these cases, Justice Gavendiwala gave a strained interpretation to “sexual assault,” and acquitted the accused of the charge, while convicting them for “outraging modesty” and “sexual harassment,” both of which carry lower punishment relative to sexual assault.
Moving Beyond the Individual to Systemic Redress
The attention over the last couple of weeks has been on the individual judge, rather than on systemic issues involved.
Unless an effort is made to rid the legal system of stereotypes through education and law reform, as the Justice Verma Committee suggested, we will continue lamenting about stereotypical reasons employed in one judgment or the other.
Reforms to laws relating to sexual offences should not be confined only to increasing sentences as has been the practice over the last few years, but identifying the relevant issues, and addressing them. This includes important questions relating to age of consent and sentencing discretion both under the POCSO Act and the IPC.
(Mrinal Satish is Professor of Law at National Law School of India University, Bengaluru and author of “Discretion, Discrimination, and the Rule of Law: Reforming Rape Sentencing in India)