New Delhi: The National Commission for Protection of Child Rights (NCPCR) on Monday asked the Maharashtra government to file an urgent appeal against the recent Bombay high court judgment which said there groping without “skin-to-skin” contact is not sexual assault under the POCSO Act.
In a letter to the Maharashtra chief secretary, the chairperson of the country’s apex child rights body Priyank Kanoongo said the words “skin-to-skin with sexual intention without penetration” in the judgment also need to be reviewed and the state should take note of this, as it seems to be derogatory to the minor victim in the case.
In the January 19 judgment, the Bombay high court said groping a minor’s breast without “skin-to-skin contact” cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act. Justice Pushpa Ganediwala of the Nagpur bench held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault.
The high court was hearing an appeal against the conviction in a case where the accused lured a minor girl to his house and molested her. The court acquitted the accused under the POCSO Act since section it did not consider his actions to fall under Section 7 of the Act. However, the judge recognised the accused’s actions as use of criminal force with the intention to outrage a woman’s modesty, defined under Section 354 of the Indian Penal Code.
The verdict has come in for criticism from civil society, activists and child rights groups.
The NCPCR chief also said that the identity of the victim appears to have been disclosed and the commission is of the view that the state should take note of this and initiate necessary steps.
“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 said in his letter.
“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,” he added.
Activists and child rights bodies have severely criticised the judgment, terming it “absolutely unacceptable, outrageous and obnoxious”. They also appealed to the state government to challenge the verdict.
According to news agency PTI, Dhananjay Tingal, executive director of child rights NGO Bachpan Bachao Andolan, said the organisation’s legal team is looking into the matter.
“We shall be appealing the Supreme Court,” Tingal said.
Activist Kavita Krishnan, secretary of All India Progressive Women”s Association, called it an “outrageous judgment” that goes against the letter of the law.
“The POCSO law defines sexual assault very clearly and it has a provision for sexual touch. This notion that you will circumvent the law by saying touch with or without clothes makes no sense at all,” Krishnan said.
“That is absolute rubbish and it fails the test of common sense also. For me, it’s a larger question of who qualifies to be a judge in cases related to gender,” she said.
Yogita Bhayana, an activist who heads the People Against Rape in India, said she was disappointed to hear such statements from a judge, saying they could “motivate criminals”.
“I really think it is very regressive of her to say this,” Bhayana said.
After the Nirbhaya case, activists have been trying to ensure that even verbal comments and gestures are considered as a form of assault. Even other issues such as cyberbullying are being considered as assault, Bhayana said, adding, “On the other hand, they [judges] are talking about this!”
Prabhat Kumar, deputy director of Save the Children, said the POCSO Act does not mention “skin-to-skin contact”.
“The act talks about physical (abuse), which is largely the use of force to sexually assault. So we feel that this interpretation is not right,” Kumar said.
“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,” he said.
Women’s rights activist Shamina Shafiq said, “As a woman, you must understand that groping while you are wearing clothes is very usual and unfortunately normal in this country and this is something that keeps on happening to women and girls. And to say such a thing [that it will not be considered assault] will give ideas to men also and it will not act as a deterrent.”