A major controversy erupted around the country on Sunday when Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, remarked that there must be “skin to skin contact with sexual intent,” for an act to be considered sexual assault. Long story short, touching a minor girl’s breast without removing the top wouldn’t be considered as sexual assault but would be regarded as outraging the modesty of a woman under the Indian Penal Code (IPC).
However, as soon as, the judgment report hit the newsstands, there was a collective outrage at the decision of the Court, which to a certain extent was justified because to a layman it felt that Justice Ganediwala was trying to acquit the accused.
As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the high court held.
While the court’s decision reeks of narrow-mindedness and lack of competentness — it is not the fault of the Judge as the Protection of Children from Sexual Offences (POCSO) Act seems pretty archaic in its definition of what constitutes a sexual assault. The outrage is justified but it should be diverted towards amending the POSCO act which was passed in 2012 and has such a vague definition.
The POCSO Act defines sexual assault as when someone “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”.
If one has been a survivor of a sexual assault attempt, he/she would always tell you that it is not the mere touching of skin that scars them for life, it is the threat posed to them by the accused. Just because the perpetrator could not get the clothes off, doesn’t mean he should be let off the hook.
A child being groped anywhere should tantamount to a sexual assault, skin touch or not. Period. There should be no blurry lines and the legislature should immediately start working and try to correct this anomaly within the POCSO Act.
The judicial reforms are necessary and especially in such cases where the judges seemingly have their hands tied down by the rule of law. Off late, India’s judiciary has found itself in a quagmire on several occasions. When the judiciary intervened in the Farm laws, it felt a bit underhanded, and similarly, a little sprinkle of ‘common sense’ here would have helped the court make a better decision. Hopefully, the POCSO Act is amended so that no survivor has to face any such hindrance in the judicial process.