Attorney General KK Venugopal on Wednesday told the Supreme Court that the Bombay High Court’s “skin-to-skin contact” verdict in connection with sex assault on children would have a “devastating effect” on cases pending before subordinate courts, the Hindustan Times reported.
In January, the High Court had held that groping a minor’s breasts without removing her clothes did not amount to sexual assault under the Protection of Children from Sexual Offences Act.
It would, however, fall within the ambit of Section 354 of the Indian Penal Code, which criminalises outraging the modesty of a woman, the Nagpur bench of the court had said.
The High Court had modified a sessions court order that held a 39-year-old man guilty of sexually assaulting a 12-year-old child.
Venugopal had urged the Supreme Court to reverse the Bombay High Court order. The National Commission for Women and the Maharashtra government also filed petitions against the order.
As the Supreme Court took up the petitions on Wednesday, Venugopal submitted that children were the most vulnerable to sexual assault. “The judge lacked the sensitivity to appreciate that POCSO Act is meant to prevent sexual offences against children who are unable to defend themselves,” he said.
Venugopal pointed out that Section 354 of the Indian Penal Code, meant for women, could not be applied to children, Live Law reported.
“POCSO is a special law intended to protect children who are far more vulnerable and that is why one cannot look at Section 354 of the IPC and say its similar in nature,” he added.
The attorney general told the Supreme Court bench comprising Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi that the Bombay High Court order would set a “dangerous and outrageous precedent”, Live Law reported.
He added that Bombay High Court judge Justice Pushpa Ganediwala evidently did not see the “far-reaching consequences” of her order.
“If tomorrow a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment,” Venugopal said. “This is outrageous. Saying that skin-to-skin contact is required would mean a person wearing gloves getting an acquittal.”
National Commission for Women’s advocate Geeta Luthra submitted that skin-to-skin was not necessary to constitute an offence. She spoke about judgements from American courts to back her argument.
“While penal statutes must be construed strictly, it was apparent that the statute was not only meant to protect only unclothed girl...It is not necessary that the bare skin of minor be touched,” she added, according to Bar and Bench.
The Supreme Court will continue hearing the case on Thursday.