Thirteen years ago, the Ministry of Women and Child Development launched the National Girl Child Day, purportedly “to spread public awareness on inequalities girls faced in Indian society.”
On Sunday, the Prime Minister took to Twitter to wish “the daughters of the nation” and use the hashtag “Desh Ki Beti”, seemingly unaware of the irony provoked by the reference to the nation’s daughters—it hasn’t quite been a decade since the documentary “India’s Daughter” caused a stir; neither has it been as long since the incident to which it referred, the Delhi bus rape, occurred.
Modi also doffed his imagined hat to “all those working towards empowering the girl child and ensuring she leads a life of dignity and opportunity.”
On the same day, news broke of a judge’s reading of what “groping” could mean under the Protection of Children from Sexual Offences (POCSO) Act.
The Nagpur bench of the Bombay High Court was hearing an appeal against a conviction by a sessions court. The single-judge bench had to consider whether a 39-year-old man who had lured a 12-year-old child into his home on the pretext of giving her a guava, and gone on to press her breasts and remove her salwar, was guilty of offence under the POCSO.
The appeal was heard by Justice Pushpa Ganediwala, and she stated that her verdict would hinge on the implications of Section 7 of the POCSO. This section states:
“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.”
She decided that the section mandated “skin-to-skin contact” with the aforementioned organs of the victim. The sexual intent was clearly not in doubt. Although there is no mention of whether the perpetrator can make the said physical contact through clothes or must remove them beforehand, the judge has been quoted as having stated: “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, the act would not fall in the definition of ‘sexual assault’.”
While the court held the convict guilty under Section 354 of the Indian Penal Code, which pertains to “outraging the modesty of a woman” and carries a minimum punishment of a one-year jail term, it acquitted him of the more serious conviction under POCSO, which carries a minimum term of imprisonment of 3 to 5 years.
The facts of the case were not disputed—the only disagreement was about whether the convict had violated the POCSO by groping the child through her clothes, and in the absence of “stricter proof”, the judge decided he had not.
There is no mention of “skin-to-skin” contact in the pertinent section of the Act itself. Nor is there any doubt about the perpetrator’s “sexual intent”. And yet, a girl child who worked up the courage to tell her mother what happened, and then narrate to the police and the court the graphic details of the incident, heard that the crime was not “serious” enough to merit the conviction.
The ugly truth about serial sexual offenders is this—they typically target teenagers, who are embarrassed about their changing bodies and easily guiled into believing they “asked for it” when they are harassed.
For decades, it was almost an accepted rite of passage for Indian women to be “eve-teased”. Women taught their younger sisters and daughters to walk with their arms over their chests, and told them not to respond to catcalls. Most of us have lived through the nightmare of walking home alone through dark streets because that was preferable to squeezing into a crowded bus. There were few laws in place, and fewer ways to reach out for help or prove intent to harm in an era before mobile phones and CCTV cameras.
The POCSO Act was recognition of the fact that this kind of predator exists and should be punished harshly. The Juvenile Justice Act was drafted in a hurry following the outcry against the release of the juvenile offender in the Delhi bus rape of 2012. By some accounts, including that of the lone surviving victim—and lone witness to the assault—he was among the most brutal of the five convicts.
Yet, he lives under a new identity in an unknown locality. His face is not known. He could be the next person who offers guavas to a little girl, and gets away with a rap on the knuckles because he didn’t make skin-to-skin contact.
In a country which has so little respect for privacy that an Aadhaar database can be bought for Rs. 500, we don’t have a public sex offenders registry. We have known of several cases where crimes against women—and often against the girl child—have been committed by recidivists. When sexual assault is underreported and statistics on acid attacks have only recently become available, how can we hope to empower the girl child?
Nandini is the author of Invisible Men: Inside India's Transmasculine Networks (2018) and Hitched: The Modern Woman and Arranged Marriage (2013). She tweets @k_nandini. Her website is: www.nandinikrishnan.com