You all remember how 2021 started off
with a very controversial and disturbing verdict by the Mumbai High Court - The
infamous “skin-to-skin” judgement held by the Nagpur Bench. The Supreme Court denounced
the judgement and reversed it. Let’s first have a look at the High Court
judgement, then discuss on Supreme Court’s ruling. The High Court in January 2021 held
that groping a child’s breasts without “skin-to-skin contact” would not amount
to graver offence of “sexual assault” under the POCSO Act but will amount to
only “molestation” under section 354 of IPC.
This lead to a lot of criticism from academic
circles and social media, general consensus being a disappointment and sense of
disgust that the judgement roped in. Following this, the Attorney General of
India, National Commission for Women and the State of Maharashtra, appealed to
the Supreme Court hoping to correct this judgement. The Supreme Court on 18th November,
2021 denounced the judgement of the Bombay HC and made many important observations
on why it is baseless and distorted. Here are a few key noting-
1.Sexual
intent is more important than touch- It doesn’t matter if there is a skin to
skin contact or not, if the intent persists- the offence persists. Justice Bela
Trivedi stated that restricting touch and physical contact of POCSO Act is very
absurd and it defeats the purpose of the Act in the first place. 2.Narrow
interpretation- The very objective of enacting the POCSO Act is to protect the
children from sexual abuse. This judgement can make the provision of POCSO Act
subject to very contradictory interpretations. Like for example, anyone using
gloves while groping will get away for this offence. We definitely don’t want
that and neither will this address the problem, forget getting justice. 3.Literal
meanings- Justice Trivedi said that the panel referred to the dictionary and
held that the word touch has been referred to with reference to the special
parts of the body whereas the word “physical contact” has been used for any
other act, hence the act of touching the sexual part of the body if done with
sexual intent would amount to sexual assault within the Section 7 of POCSO Act. 4.Jury’s
opinion- Justice Ravindra Bhat observed that the High Court’s view not just trivialized but also legitimized an unacceptable behavior towards a child and its dignity,
autonomy. He stated that sexual intent is not defined but fact dependent. The
fallacy in the HC’s reasoning is that it assumes indirect touch is not touch at
all. But this provision of POCSO is meant to cover both direct and indirect
touch. There was another controversial
judgement passed by the Bombay High Court in Jan 2021. It said that “holding
hands of minor girl and opening pants zip not ‘sexual assault’ under POCSO Act
but it is ‘sexual harassment’ under section 354A of IPC. Both these judgements
were passed by Justice Pushpa Ganediwala of Nagpur Bench. Shockingly enough, these judgements
took everyone by a toll due its dearth of both logic and facts. With regards to
the skin-to-skin case, the judgement held was that the act of pressing the
breast of a 12 year old child without an evidence of top being removed or the
hand being inserted inside the top, would not fall under the definition of
“sexual assault” of POCSO Act.
It is great to see that these cases are
being thrown in the limelight and public discourse. Thanks to the technology
that has changed the game of academic debates, public discourse through various
forms of media. It is also great to see that these cases are challenged and
taken to the Supreme Court, although the judgements are ridiculously obvious. Shockingly, the justice who passes this
judgement was a female. She received a lot of criticism for obvious reasons
even costing her career as her name got withdrawn from candidateship of the
Bombay High Court judge. Our laws are very loophole as it is, which makes it
prone to instances like these. So, passing judgements which are contradictory
and self-defeating in nature, can only trivialize the cases of real sexual
intent.
We want to live in peace at the end of
the day. And it is the judiciary we count on heavily. We know how important it
is for the people to believe and have faith in the judiciary. To uphold that
trust and faith, each and every body of the judiciary must strive to uphold the
law and order, with sense, logic and empathy, needless to mention. And we have
to go a long way in this regards. (Adv Vedika Chaubey can be reached at
vedikachaubey@gmail.com)
