Sexual crimes aren’t about sex. Rather, they are about flagrant and brazen abuse of power exerted by a perpetrator on a vulnerable victim. Which is why the recent controversial Bombay High Court judgment that groping a minor without “skin to skin contact” isn’t sexual assault comes across as insensitive, violative, regressive, appallingly simplistic and outrageously misogynistic. The black and white judgment, completely bleached of the nuances of sexual abuse and its impact on survivors, also raises several disturbing and pertinent questions on issues of child safety and protection, and sets a dangerous precedent for defending sexual assault in court.
According to reports, a 39-year-old man was accused of groping a 12-year-old girl’s breasts in December 2016. Four years later, on January 19, 2020, the Nagpur Bench of the Bombay High Court, headed by Justice Pushpa Ganediwala, modified the Sessions Court Order and declared that while the accused did grope the girl, it could not be treated as sexual assault punishable under Section 7 of POCSO (Protection of Children from Sexual Offences) as the girl had her “top on and therefore there was no skin to skin contact.” Instead, the judgement placed the offence under IPC Section 354 that talks of outraging a woman’s modesty.
The POCSO (Protection of Children from Sexual Offences) Act 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
A succinct analysis of the Bombay High Court’s interpretation of Section 7 of the POCSO Act can be found here
N.S. Nappinai, Supreme Court Advocate and founder of Cyber Saathi™ (www.cybersaathi.org), in a Tweet, unequivocally says, “ GROPING IS AN OFFENCE. GROPING OVER CLOTHES IS AN OFFENCE. THIS MESSAGE IS SHARED IN BOLD so that no one believes otherwise. This is a fit case for the Supreme Court to intervene ASAP and if required, Suo Motu!” Thankfully, that is what the Supreme Court has now done by staying the Bombay High Court order.
In sex and sexuality discourse, groping refers to touching a person in an unwelcome sexual way. The term generally has a negative connotation in many societies, and the activity may be considered sexual assault or otherwise unacceptable. Groping is a violation of the bodily integrity, autonomy and agency of a person, in this case, a minor girl, less than 18 years old (as defined by POCSO guidelines).
Before delving into the gross misinterpretations inherent in the Bombay High Court verdict, N.S. Nappinai avers that she was perturbed about certain “misleading reports in the media that draws selectively from the judgement, which left out that groping is still an offence under the Indian Penal Code.”
Describing the judgment as “patently erroneous and fallacious,” N. S. Nappinai highlights the key features of Section 7 of the POSCO Act 2012, to explain that there is nothing even remotely inherent in the Act to justify such outlandish interpretations as skin to skin contact being mandatory for sexual assault.
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 a 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.”
“Section 7 consists of three parts. The first part involves the act of touching the vagina, anus, penis or breast of the child; the second, the child being made to touch the parts of another person and the last part which talks about any ‘other’ act with sexual intent which involves physical contact. This aspect of the physical contact is only in the third part of the section. In the last part, they’ve tried to make it more elaborate. For instance, if a perpetrator even does a ‘bad touch’ with a stick or some instrument, in my interpretation, even that is an offence. That’s why they have said ‘any other act’ with ‘sexual intent.’ With something so broad, where do you get the interpretation skin to skin?” Touch is a very specific form of physical contact. Of course, they have not predicated it with a requirement of explaining it as physical contact. It is so open ended that it could be any kind of touch. It doesn’t even say with a hand. The only requirement is sexual intent behind a touch or any other act. ”
The senior advocate explains that the rules of interpretation in a criminal provision demands a strict interpretation.
“You have to apply the provisions as it is framed. You can’t read into it or add to the legislative intent. In criminal legislations such as these intended to protect children from sexual assaults there is no scope for inclusions or inferences whilst interpreting and doing so to the detriment of the stakeholder for whose benefit the Act has been drafted, clearly shocks one’s conscience. You would interpret it in the light of what was the purpose behind the section and the harm it needed to prevent, which is the sexual assault of a child. The manner in which it tries to prevent is through three different kinds of sexual assault. That cannot be diluted through an interpretative process. You apply the law as is, as has been formulated by the Parliament. Therefore, when the act did not specify sexual assault as skin to skin, to assume that sexual assault has to be skin to skin touch is something way beyond what the Parliament intended. Courts do not lay down the law. They only interpret the law; apply the law. The intent of Parliament was to protect children from bad touch,” explains the senior advocate.
She also adds that “the impact of the judgment was dilution of the minimum punishment mandated under the POCSO Act i.e., three years, as IPC offences for such sexual assaults do not stipulate a minimum sentence. Further, POCSO is gender neutral with respect to both perpetrators and victim children and hence has much wider application in protecting children. Nappinai adds, “it was imperative for the Supreme Court to intervene without delay and it is indeed heartening that it has done so by staying the harmful order”.
Veena Gowda, Mumbai-based human rights lawyer who has been practising in the High Court of Bombay, Family Court and other trial courts for more than two decades, reiterates that sexual crimes is a continuum and the Nirbhaya Protest led to Criminal Law Amendment Act which made substantive changes in the definition of ‘rape’ under the Indian Penal Code, 1860 (“IPC”), wherein Section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse.
“We need to catch small crimes and prevent the big crimes. Unfortunately, the judiciary does not stand up for issues. As in the recent Bombay High Court judgement, its not just about following precedents,” she explains.
According to Veena Gowda, the Bombay High Court judgement is a moment of reckoning.
“I can’t believe that this judgment has been delivered by a judge in 2021. We seem to have failed at a very fundamental level in valuing the experience of a child. In many ways, the journey of the women’s movement in the country has been about owning and upholding one’s rights over one’s body and protect oneself against any violation of this right. We need to re look at our laws, our campaigns and our awareness and sensitisation on gender issues,” says Gowda.
Sexual offences, mired under stigma, shame, secrecy and silence, are often under reported. Prevention and redressal therefore require convergence of multiple stakeholders: people with lived experience, judiciary, law enforcement, media, health care, NGOs, and the general public. A perceptive and informed judiciary sensitive and responsive to the needs and concerns of victims can lead the way forward in fostering safe, supportive spaces to address this complex and complicated issue with insight and compassion.
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