Convicted Criminal: As God is my judge I am innocent.
Judge Norman Birkett: He isn’t, I am and you’re not!
After all the ongoing brouhaha over the never-ending farmers’ agitation in the capital, followed by even more heated debates and discussions on the Union Budget, to say nothing of the all-pervading Covid19 situation which kind of sits over all of us like a frozen suet pudding, it was good to turn my attention to something completely different in our newspapers. Well, good is not a good word because the news item in question that grabbed my notice was both disturbing and ridiculous. I am talking about the Supreme Court, very properly, coming down with a heavy hand over a recent Bombay High Court decision which had held that ‘pressing the breast of a 12 year-old child without removing her top will not fall within the definition of “sexual assault” under Section 7 of the Protection of Children from Sexual Offences Act (POCSO).’
This really set the cat among the pigeons in my head. They were fluttering, the pigeons that is, like nobody’s business while I tried to wrap my challenged intellect around this verdict. I am talking about the Bombay High Court’s (Nagpur Bench) verdict, and not the Supreme Court’s quashing of the same. The stay was ordered by India’s Chief Justice, S.A. Bobde, and this may well have been one of the easier decisions he has had to make since taking the oath of office. What were these boffins at the Bombay High Court thinking, specifically Justice Pushpa Ganediwala who was at the controls? Apparently, the person who has been accused of some species of molestation can go scot free, as long as his victim was wearing clothes, and there is no ‘skin-to-skin’ contact. One lives and learns as judicial terminology keeps reinventing itself. In short, if the girl is fully clothed and someone touched her improperly, he was only ‘outraging her modesty,’ under Section 354 of the Indian Penal Code, and through derivative logic, no punishment is called for. If our illiterate, oversexed offenders were aware of this loophole in the law, they would go berserk with their breast pressing, bum pinching and much else besides. It’s all very well to go on about sowing your wild oats, but there are limits.
To revert to the subject on hand, here’s how I view this sleazy scenario. We have this lecherous lout who squeezes himself into a crowded bus or wherever and, ‘accidentally on purpose,’ presses himself against the embonpoint of a nubile youngster in a sexually offensive manner and quietly hops off at the next stop, leaving the poor victim red faced and helpless. ‘Sorry, young lady, nothing much you can do about it because you were wearing clothes.’ At least, that’s what the asinine verdict appears to be telling the young victim. How about getting some able-bodied men to apprehend the perpetrator and bash his thick skull in? If the law is going to take its own majestic course, then somebody else had better step in. You might scoff at vigilantism, but it has its uses. Her Ladyship at the Bombay High Court, Nagpur Bench, contended that Section 8 (yes, there is even a section for this) of POCSO exonerates the desperado on the grounds that the accused had no sexual intent to commit offence because there was no skin-to-skin contact. And how, pray, do you divine that, Your Honour? Telepathy? ESP? Dear, oh dear! One of the most celebrated judges, Lord Denning, quoting Mr. Bumble from Oliver Twist, provided gravitas and credence to the expression, ‘The law is an ass.’ He certainly knew what he was talking about.
As if all that was not absurd enough, the next day’s papers had more small print of a similar nature. Again, it was the reverberating Nagpur Bench of the Bombay High Court that went a step further. Undeterred by the Supreme Court’s rap on its knobby knuckles, the High Court now ruled that holding the hand of a minor while unzipping his pants cannot be termed a sexual assault. The accused offender in question was a 50 year-old man, who was attempting to exhibit his manhood to a 5 year-old girl! Surely, there is such a thing as assaulting the senses. One is rendered speechless. All I can say is that if any of you, who happen to be reading this, is planning a short family holiday in Nagpur (I know the city is famed for its oranges), and you plan to take along your teenaged daughters with you, cease and desist. All that profusion of succulent oranges in the city seems to be putting libidinous ideas into the sex-starved male of the species. You are much better off going to the hills or some seaside resort, where the judicial system comes down mercilessly on unzippers of pants, unbuttoners of flies and gropers of mammary glands. If you don’t heed my advice, on your heads be it, or rather, on your breasts.
This sordid story should have ended hereabouts, but my morning daily just will not give up on Justice Ganediwala and her strange enthusiasm for cases involving deviant sex offenders. The honourable lady may soon, with justice, earn the dubious sobriquet of ‘serial acquitter of paedophiles.’ Try this on for size. Her Ladyship, reportedly gave it as her considered view that a man, who had already been incarcerated, cannot be accused of committing a sexual act ‘without any scuffle.’ I suppose there is some crude logic to this argument that if the man had forced himself on the girl who was reluctant to engage with him, a scuffle would have ensued involving torn clothes and sundry injuries, none of which was evident. Ergo, the vile act was not vile but consensual. On the face of it, one might have to (purely on technical grounds) hand the benefit of the doubt to the acquitted accused. It’s just that given the court’s previous judgements of a somewhat similar nature, I am filled with doubts and misgivings and from the alleged victim’s point of view, I am not sure that there is no case to answer.
In this rapidly evolving story, the finishing touches have now been given by the Bombay High Court which has, in the light of Justice Ganediwala’s quirky pronouncements, recommended to the Supreme Court that her elevation to the position of a permanent judge of the Bombay High Court, be stayed. A decision that would be welcomed by all right-thinking citizens, particularly those with teenage and minor daughters in their families.
I was about to put this piece to bed when, lo and behold, Justice Ganediwala struck again. This time she ruled that a 27-year old man cannot be convicted of multiple rape of a 17 year-old girl simply on the alleged victim’s say-so, as the prosecution failed to provide substantive evidence of the crime. Perhaps, just perhaps, she got it right this time round. The young lady might have been crying wolf, but I am not holding my breath. One way or the other, this particular judge appears to have cornered the market on cases pertaining to child sex offenders.
Doubtless inspired by the goings-on at the Bombay High Court, the Madras High Court has decided that it can’t be left behind. Pronouncing that a man, in this case a police constable, and a woman locked inside a room for long hours does not prima facie suggest that there was any funny business involved. Or in the ringing words of Justice R. Suresh Kumar, that it ‘need not necessarily lead to a presumption that they were in an immoral relationship.’ Exactly my thoughts, but you know judges. They like to spin it out a bit. Circumlocutory is the word that springs to the lips. Be that as it may, I am willing to take the locked-up couple’s word at face value, so long as they did not come out of the room in a state of déshabillé. You know, torn clothes, unzipped flies and the like.
In conclusion, this left-field obsession with ‘skin to skin,’ ‘improper touching,’ and ‘provocative unzipping’ reminded me of a hilarious exchange between a young couple out on a date, which was featured in British comedian and celebrity-interviewer par excellence, David Frost’s show, That Was The Week That Was in the 1960s. Here is an extract from ‘Fly Buttons,’ not verbatim, as I am paraphrasing it from the deep recesses of my foggy memory but you’ll get the general idea.
(At a small café somewhere in England)
She (whispering) – ‘Listen, your fly is open.’
He – ‘What?’
She – ‘I said your fly is open.’
He – ‘It’s not.’
She – ‘It is.’
He – ‘How far?’
She – ‘What do you mean, how far?’
He – ‘How far is it open?’
She – ‘More than half way. Zip it up.’
He – ‘I can’t.’
She – ‘Why not?’
He – ‘It buttons.’
She – ‘Then button it up.’
He – ‘That’s all you care about, isn’t it? My fly buttons. War, disease, famine, crime, corruption, cataclysms, nothing matters to you. Absolutely nothing. So long as we button our flipping flies. I wouldn’t button my fly if it was open all the way.’
She – ‘It is.’
(After a bit more argument)
She – ‘Look, we can’t stop here all evening discussing your gaping fly buttons. We’ll be late for the movie. Shouldn’t we move?’
He – ‘All right, all right. Just wait till I button my fly.’
I am not sure about Justice Ganediwala, but I rest my case.
A bit of tongue in cheek humour is really welcome in these trying times!
As ever, thanks JB.
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