Narrow Interpretation of the Bombay High Court in Skin to Skin Judgment: Impact and the Appeal to Supreme Court

TEN POINTERS OF THE CASE

1.  Background of the Case 

On January 19, 2021, the Hon’ble Bombay High Court, Nagpur Bench, headed by Coram, Justice Pushpa V. Ganediwala, in Satish Ragde V. State of Maharashtra, held that pressing the breast of a 12-year-old child without removing her top, in absence of direct skin to skin contact, will not fall within the definition of “Sexual Assault” under Section 7 of The Protection of Children from Sexual Offences Act (POSCO). The judgment caused major uproar throughout the nation, compelling the National Commission for Protection of Child Rights (NCPCR) and the National Commission for Women (NCW), for writing to the state of Maharashtra for appealing the judgment. The Hon’ble Supreme Court stayed the controversial judgment on 27^th January 2021.

2. Law Involved

The Protection of Children from Sexual Offences Act, 2012

Section 7- Sexual Assault

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.

3. The difference in the judgment of the Session Court and the High Court

The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under section 354 of the IPC. The sentences were to run concurrently. The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.

4. The High Court Verdict

1. The court while considering whether the “pressing of the breast” and “attempt to remove salwar” would fall within the definition of sexual assault under Section 7 and punishable under Section 8 of the POSCO Act.
2. Considering the stringent nature of punishment ranging from three to five years of imprisonment, strict and specific proves are required, whether the top was removed or the hand was inside the top. Therefore, it will not fall within the definition of sexual assault under the POSCO Act, but it would certainly fall under outraging modesty of women under Section 354 of the Indian Penal Code.
3. As per the basic principle of criminal jurisprudence, the punishment of the offence shall be appropriate to the seriousness of the crime. Hence, in the current circumstances, the court deems fit, in its opinion to punish the accused under Section 354 of the Indian Penal Code. In the absence of direct physical contact, i.e. skin to skin, with sexual intent without penetration, it was rejected by the court as inadmissible.

5. The Skin to Skin to Judgment became the basis of Uproar

The judgment delivered by the Bombay High Court, popularly known as “skin to skin” judgment, caused major uproar throughout the nation, with various social activists, advocates and women criticizing the verdict as dangerous examples in reference to the safety of women.

6. National Commission of Women Intervention against the Judgment

On 25^th January, the National Commission for Protection of Child Rights asked Maharashtra Government to file an urgent appeal against the judgment. The National Commission believed that if the prosecution had made submissions in the spirit of the POSCO Act, then the accused would have been convicted. It is also believed that the identity of the accused should not have been disclosed as it seems derogatory to the minor victim.

On 10^th February 2021, the National Commission for Women filed a petition before the Hon’ble Supreme Court challenging the controversial judgment of Bombay High Court that was followed by a petition filed by the State of Maharashtra, after which notice was issued to the parties.

In its plea filed in the apex court, the NCW has said that if such a “perverse interpretation of physical contact is allowed, it will adversely impact the basic rights of women, who are victims of sexual offences in the society and will undermine the beneficial statutory safeguards prescribed under various legislations aimed at protecting the interest of women.” “The petitioner is aggrieved by the impugned order, and the perverse interpretation adopted by the high court that the term ‘physical contact’ in section 7 POCSO Act means only ‘skin to skin touch’,” the plea said.

7. Issue Notice Order from Supreme Court

The Supreme Court agreed to hear a plea filed by the National Commission for Women (NCW) challenging the Bombay High Court verdict which said that groping a minor without “skin to skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

On 27^th January 2021, the Attorney General of India, K.K. Venugopal called out the judgment as to the disturbing conclusion, setting a bad precedent before the Chief Justice of India. After which the Hon’ble Supreme Court stayed the judgment and in the meantime stayed the release of the accused.

8. Impact of the Bombay High Court Judgment

Following the widespread criticism, Justice Pushpa Ganediwala, who delivered the controversial judgment, faced several personal consequences. Law Ministry issued a notification on 12^th February, confirming Smt. Pushpa Ganediwala as Additional Judge instead of permanent judge of Bombay High Court for another year with effect from February 13, 2021.

9. Narrow Interpretation mutated Section 7 of the POSCO to Section 354 IPC

It is important to note that while the minimum punishment for Section 354 is one year imprisonment, the punishment under Section 8 of the POCSO Act is three to five years in jail.

10. Whether there is a possibility of Section 8 POSCO-Attempt to Sexual Assault

One of the child rights NGO activist mentions on the Minute website on the article related to the subject-“Now, if an accused can wear gloves and say there was no skin to skin contact, will that mean there was no sexual assault?” she asks, adding that as per the POCSO Act, if not Section 8 (sexual assault), this case may attract Section 18, which prescribes punishment for attempt to commit an offence under POCSO Act. Section 18 says, “Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.”

Photo by Ehimetalor Akhere Unuabona on Unsplash