The National Commission for Protection of Child Rights on Monday implored the Maharashtra government to file an urgent appeal against the Bombay High Court’s interpretation of what constitutes as sexual assault of a minor under the Protection of Children from Sexual Offences Act, reported PTI. The children’s rights body said the language of the court’s judgement needed to be reviewed at the earliest.
In a judgement passed on January 19, the Bombay High Court had ruled that groping a minor’s breast without “skin-to-skin contact’’ and sexual intent cannot be termed sexual assault as defined under the POCSO Act, and that mere groping was not sufficient. A bench of Justice Pushpa Ganediwala was hearing an appeal against the conviction in a case where a man had allegedly taken a minor girl to his house on the pretext of offering her a fruit, pressed her breasts and partially stripped her. After examining the case, the court ruled that pressing the breasts of a child without removing their top did not fall into the category of sexual assault defined under Section 7 of the Act.
In a letter to the Maharashtra chief secretary, National Commission for Protection of Child Rights Chairperson Priyank Kanoongo said the words “skin-to-skin with sexual intention without penetration” in the judgement needed to be reviewed. Kanoongo said the state government ought to take cognisance of the verdict as it was derogatory to the minor.
The NCPCR chief added that it seemed that the identity of the girl had been disclosed in the case, which is illegal. “Therefore, in view of the above and considering the seriousness of the issue, the commission being the monitoring body under section 44 of the POCSO Act, 2012 requests you to take necessary steps in the matter and file an urgent appeal against the aforesaid impugned judgment of the Hon’ble High Court,” Kanoongo wrote. “You are requested to provide details of the minor victim [maintaining strict confidentiality] so that the commission can provide help such as legal aid etc. in the best interest of the child.”
‘Outrageous and obnoxious judgement’
Several other activists and child rights bodies criticised the Bombay High Court for its judgement, terming it “absolutely unacceptable, outrageous and obnoxious”.
Dhananjay Tingal, executive director of child rights NGO Bachpan Bachao Andolan, said their legal team was looking into the matter. “We shall be appealing the Supreme Court on the basis of their inputs,” Tingal told PTI.
Activist and Secretary of All India Progressive Women’s Association Kavita Krishnan called it an “outrageous judgement” that goes against the “letter of the law”. Krishan said that for her it was a larger question of who qualifies to be a judge in cases related to gender.
“The POCSO law defines sexual assault very clearly and it has a provision for sexual touch,” she added. “This notion that you will circumvent the law by saying touch with or without clothes makes no sense at all. That is absolute rubbish and it fails the test of common sense also.”
Yogita Bhayana, an activist who heads the People Against Rape in India, or PARI, said such statements “motivate the criminals”. After the 2012 gangrape case, Bhayana said activists were trying to push that even verbal gestures are included as assault. “On other hand, they are talking about this,” she added.
Deputy Director of Save the Children Prabhat Kumar said the Bombay High Court’s interpretation of the POCSO Act was wrong. “The act talks about physical [abuse], which is largely the use of force to sexually assault,” he added. “If there are inconsistencies in interpretation of this law, then we must choose the law with the stricter punishment for the person accused of the offence. So even that has not been complied with.”