The Bombay HC has ignited the fire in the country giving a controversial interpretation of the POCSO Act. The Bombay High Court judgement created outrage over the definition of sexual assault throughout the country.
Recently, a man was accused of touching the chest of a 12-year-old girl, pressuring her and trying to take off her clothes. But he counter-filed in court saying he did not sexually abuse the girl. At the hearing of that case, the Bombay High Court stated that sexual harassment could not be confirmed without skin contact.
A woman judge of the Nagpur bench, Pushpa Ganediwala, explained the Protection of Children from Sexual Offences Act (POCSO Act) during the hearing of the case. In her analysis, sexual harassment is only possible if anybody touches the chest or genitals of the children by taking off their clothes or melting their hands through the clothes. In other words, under the POCSO Act, a person becomes sexually abused at the age of 12 years or less only at the time when ‘skin to skin’ contact happens.
A storm of condemnation has been organized against this verdict in the country. If children are unfairly touched and harassed with clothing, the question arises as to how it would not be considered sexual abuse. The Supreme Court stayed the Bombay High Court’s verdict in the face of strong controversy and protests throughout the country.
According to sections 8, 10 and 12 of the POCSO Act, the accused of that incident was to be jailed for 3 years on account of sexual harassment. But with a new interpretation of the law, the judge sentenced the accused to one year rigorous imprisonment under sections 354 and 342 of the Indian Penal Code.
Explaining whether the minor had been sexually abused, Justice Pushpa Ganediwala said that the case could be classified as sexual harassment, but not sexual abuse. Her statement focused on the point that sexual abuse requires skin contact. It is not necessary to penetrate or enter part of the body to be identified as torture. Any sexual touch will be considered as torture, but in that case the body must be touched directly through the clothes.
According to the statement of the girl, the man stood with her hands clasped and unzipped his pants. In this context, the judge said, keeping the zip of the pants open cannot be called sexual abuse. In this case, it can be said that sexual harassment has taken place under Section 354A (1) of the Indian Penal Code. Sexual abuse will be considered under Section 7 of the POCSO Act, where touching the breasts, vagina, penis, or anus of a minor will be considered. The judge said nothing like that happened in this case.
Deputy director of ‘Save the Children’, Prabhat Kumar, told that ‘skin-to-skin contact’ is nowhere mentioned in the POSCO Act. He felt that the interpretation of the Act was not right.
Social activist Shabnam Hasmi described the judgement as shocking. She expressed that she was unable to understand how a woman judge could pass this kind of judgement. Activist Kavita Krishnan, Secretary, All India Progressive Women’s Association, described the judgement of the Bombay High Court as an ‘outrageous judgement’ that would go against the letter of the law.
The Bombay HC judgement created such a situation in which criminals can easily get indulgence for doing unexpected crimes. The administration should be alert to protect women and girls against the molestations happening every day in India.