The National Commission for Women has moved the Supreme Court against the Bombay High Court verdict that had held that groping a child’s breasts without “skin-to-skin contact” does not amount to sexual assault under the Protection of Children from Sexual Offences Act, Bar and Bench reported on Thursday.
The NCW has said the interpretation of the High Court that physical contact means “skin-to-skin touch” is perverse and bad in law.
“From a plain reading of relevant provision, it is clear that “sexual assault” in terms of Section 7, POCSO Act, is predominantly a touch by the offender,” the plea said. “If an accused touches a victim [or a victim’s body part] with sexual intent then the act of “sexual assault” is complete. There can be no further classification of contact, i.e. skin to skin contact.”
The petition added that physical contact cannot be given an absurd interpretation of a touch or contact without clothes.
Section 7 of the POCSO Act states: “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.”
In a judgement passed on January 19, a single bench of Justice Pushpa Ganediwala had ruled that groping a minor’s breast without removing their top did not fall into the category of sexual assault defined under Section 7 of the Act. She had, however, said that the act would fall within the ambit of Section 354 of the Indian Penal Code, which criminalises outraging the modesty of a woman.
The accused in the case had allegedly taken a 12-year-old to his house on the pretext of giving her guava, and pressed her breast and attempted to remove her salwar. The accused was convicted by the trial court for offences punishable under POCSO Act and the Indian Penal Code. He had approached the High Court challenging the conviction.
The Supreme Court had on January 27 stayed Justice Ganediwala’s order. Attorney General of India KK Venugopal had submitted that the judgement was “unprecedented” and “is likely to set a dangerous precedent”.
On January 25, the National Commission for Protection of Child Rights had 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. The children’s rights body said the language of the judgement needed to be reviewed at the earliest as it was derogatory to the minor.
Several activists and child rights bodies had criticised the judgement, terming it “absolutely unacceptable, outrageous and obnoxious”.
Days later, Justice Ganediwala had ruled that holding a minor’s hands and unzipping one’s pants in front of a minor will not fall under the definition of sexual assault under the POCSO Act. However, such acts would constitute as “sexual harassment” under Section 354-A(1)(i) of the Indian Penal Code, she had said.