The National Commission for Women has approached the Supreme Court against the controversial judgment of the Bombay High Court which had held that pressing the breast of a 12-year old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
The NCW has claimed that the interpretation adopted by the Hon’ble High Court that physical contact means ‘skin to skin contact ’ is perverse and bad in law. The plea added that physical contact cannot be given an absurd interpretation of a touch or contact without clothes.
NCW has challenged the High Court’s interpretation of the words “any other act”. “The second part of Section 7, POCSO Act uses general words only to guard against some accidental omission in the object mentioned in the first part and is not intended to extend or limit the object to a whole different level.”
“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. 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 plea drawn by advocate Shivani Luthra Lohiya, settled by Senior Advocate Geeta Luthra and filed through advocate Nitin Saluja states.
Bombay HC Judgment
The court said that the offense would fall under the Section 354 of the Indian Penal Code (IPC), which criminalises outraging the modesty of a woman. The order indicating skin to skin contact reads,
“The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”
The Court maintained his conviction under Sections 354 (assault of criminal force) and 342 (wrongful confinement) of the IPC.
Criticism on the Judgment
The Bombay High Court’s skin to skin contact judgment had invited sharp criticism.
On 27 January, Supreme Court Collegium withdrew its consent to make Justice Pushpa V Ganediwala a permanent judge of Bombay High Court who prompted controversial judgments acquitting accused persons under the POCSO Act including skin to skin contact controversial judgment.
On January 20 the three-member Collegium headed by Chief Justice of India, SA Bobde, comprising Justices NV Ramana and Rohinton Fali Nariman had made recommendation to the Central government to make Justice Ganediwala a permanent judge.
