On January 19th, the Bombay High Court passed a controversial order that said viewed groping without “skin-to-skin contact” as not amounting to sexual assault. Yesterday, on January 27th, the Supreme Court put a hold on the High Court’s verdict, saying it set a “very dangerous precedent”.
Groping Without “Skin-To-Skin Contact” Is Not Sexual Assault, Says High Court
Justice Pushpa Ganediwala of the Bombay High Court had modified the order of a sessions court on January 19th. The session court had found 39-year-old Satish guilty of sexually assaulting a 12-year-old girl, under the Protection of Children from Sexual Offences (POCSO) Act. Sexual assault under the POCSO Act entails a minimum imprisonment of 3 years.
According to the persecution and minor victim’s testimony in court, the man had taken the minor home on the pretext of giving her something to eat. Justice Ganediwala recorded in her verdict that once home, he had proceeded to grip the girl’s breast and attempted to remove her clothes.
However, Justice Ganediwala said that since he only groped her over her clothes, the incident could not be termed as sexual assault. Under the POCSO Act, sexual assault is defined when someone “with sexual intent touches” the genitals or other intimate parts of the victim’s body.
“Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” Justice Ganediwala said.
She held that the offence, instead, is that of outraging a woman’s modesty under IPC section 354.
Where the minimum imprisonment for sexual assault under the POCSO Act is 3 years, the minimum imprisonment for outraging women’s modesty under IPC section 354 is only 1 year.
The verdict was met with shock and outrage from the public. The fact that the harmful order was given by a woman has only fuelled the public’s astonishment.
The Supreme Court Has Now Put A Hold On The Bombay High Court’s Order
Yesterday, the Supreme Court made the decision to stay the Bombay High Court’s verdict.
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The National Commission for Protection of Child Rights (NCPCR) had also asked the Maharashtra government to urgently appeal the order. Several other organisations, like the Youth Bar Association of India, had also petitioned against the High Court’s decision.
“Abuse and outraging the modesty of a child has been a matter of great concern. POCSO Act was enacted to deal with evil and to impart speedy justice. Special courts were formed,” the petition read. “The observations [in the High court’s judgement on January 19th] have badly shaken the belief of the petitioners and like-minded people.”
Ultimately, on January 27th, Attorney General K.K. Venugopal made a special mention in court, asking for the case to be re-looked at.
Attorney General Venugopal called the High Court’s decision “very disturbing”. He said that it would set a “very dangerous precedent”. Following the order, any sexual offender could claim innocence under POCSO in the future, he said. The accused could argue that the child had been clothed and that there hadn’t been any “skin-to-skin contact”.
He maintained that this would severely cripple the intention of POCSO to identify and punish sexual offenders.
After hearing out Attorney General Venugopalan, the Bench led by Chief Justice of India, Sharad A. Bobde, stayed the High Court’s decision. The Bench also issued a notice to the accused and registered a case against him.
Just as the Supreme Court’s ruling brought with it a sense of hope, a new ruling by the same bench of the Bombay High Court has once again caused a stir.
Yesterday, Justice Pushpa Ganediwala ruled that “the act of holding a girl’s hands and opening the zip of pants will not come under the definition of sexual assault” under the POCSO Act. This order followed a criminal appeal made by a mother against a 50-year-old man for molesting her 5-year-old daughter. The mother stated that she saw the accused with his pant zip open and holding the hands of her daughter. She added that her daughter had confirmed that the accused had removed his genitals and made a lewd remark. However, Justice Ganediwala has ruled against the appeal.
Here’s hoping the Supreme Court, puts a hold on, as well as puts an end to, such dangerous rulings.
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