India’s apex child rights body, National Commission for Protection of Child Rights (NCPCR), has asked the Maharashtra government to file an urgent appeal against Bombay High Court’s recent judgment that an act cannot be termed as sexual assault if there is no “skin-to-skin” contact.

File photo of Bombay High Court. (File photo: PTI)

National Commission for Protection of Child Rights (NCPCR), India’s apex child rights body, asked the Maharashtra government on Monday to file an urgent appeal against Bombay High Court’s recent judgment that an act cannot be termed as sexual assault if there is no “skin-to-skin” contact.

The Bombay High Court ruled that groping without ‘skin to skin’ contact is not sexual assault as defined under the Protection of Children from Sexual Offences (Pocso) Act. The ruling was pronounced by a single judge bench of Justice Pushpa Ganediwala on January 19.

Asking the Maharashtra government to file an urgent appeal against Bombay HC’s judgement, in a letter to the state chief secretary, NCPCR Chairperson Priyank Kanoongo on Monday said the words “skin-to-skin with sexual intention without penetration” in the judgment also need to be reviewed and the state should take note of this as it seems to be derogatory to the minor victim in the case.

In the January 19 judgment, the Nagpur bench of Bombay High Court ruled that there must be physical contact “i.e skin-to-skin contact with sexual intent without penetration” and mere groping would not amount to sexual assault under the Pocso Act. The court opined that touching a minor’s chest would not amount to sexual assault unless the accused removed the top worn by the child or slid their hand within the child’s garment.

The judgement has drawn the ire of child rights bodies and activists across the country.

The NCPCR chief said it seems that the identity of the victim has been disclosed and the commission is of the view that the state should take note of this and initiate necessary steps.

“Therefore, in view of the above and considering the seriousness of the issue, the commission being the monitoring body under section 44 of the POCSO Act, 2012 requests you to take necessary steps in the matter and file an urgent appeal against the aforesaid impugned judgment of the Hon’ble High Court.

“You are requested to provide details of the minor victim [maintaining strict confidentiality] so that the commission can provide help such as legal aid etc. in the best interest of the child,” Kanoongo said.

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Kolkata-based women’s rights activist Pranaadhika Devburman who is a survivor of child sexual abuse and violence, found herself triggered last week when she read about a Bombay High Court verdict regarding a case of groping of a minor girl.

The 12-year-old girl had reportedly been groped by a 39-year-old man in December 2016. After four years, the Nagpur bench of the Bombay High Court headed by Justice Pushpa Ganediwala found that the accused did grope the child but it did not constitute as sexual assault punishable with POCSO but instead constituted the offence of outraging a woman’s modesty under IPC section 354. The reason? The girl reportedly had her top on and since there was no “skin to skin contact”, the groping could not be ruled as an assault.

“I was shocked to read the verdict. The way it casually referred to the minor’s breasts, the callous definition of assault – as a survivor of sexual violence, I feel the verdict does not empower the survivor at all but rather her abuser,” Pranadhika says.

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.

“Imagine explaining to a young girl in India that if a man forcibly touches her under her clothes it’s assault but if he does so over her top or pants, it’s not,” Pranadhika says. The founder of One Million Against Child Abuse – a campaign that helps children including survivors of sexual abuse with mental health counselling and physical support – shudders at the thought of explaining the new verdict to her students.

What is sexual assault?

The Bombay HC verdict has come as a shock not only to survivors but also to child safety and protection experts who feel that the move sets a “dangerous” precedent for defining sexual assault in court.

“It is absurd to say that sexual assault does not take place with clothes on. Think of all the women who get molested in public places,” Bharti Ali, executive director of HAQ Centre for Child Rights, tells News18. “This kind of of a definition of what constitutes as groping is nor only unfair but also damaging to how all future cases of groping shall be treated in courts.”

“POCSO’s Section 8 mentions physical contact but the provision in the law does not describe what physical contact is. In that sense, this interpretation of the law is dangerous as it implies that sexual assault can only take place without clothes on,” child safety lawyer Anant Asthana tells News18.

The High Court judgement modified the order of a sessions court, which had sentenced the 39-year-old accused to three years of imprisonment for sexually assaulting a 12-year-old girl.

The judge instead held that the incident constituted the offence of outraging a woman’s modesty under IPC section 354, which entails a minimum sentence of imprisonment for one year. (Sexual assault under the POCSO Act entails minimum imprisonment of three years).

This, the lawyer points out, is the other side of the coin. Asthana feels that the reduced sentence reflects desperation on the part of the judge to highlight the need to take a second look at the way we punish sexual abusers. It is not a judgment in favour of the victim but one against harsh punitive actions for sexual crimes.

“Since 2018, laws against sexual crimes bordered on harsher punishment, with minimum mandatory punishment such as the one under POCSO not allowing judges to practice their discretion case to case,” Asthana says. “While the judgemet is dangerous in its interpretation of sexual assault, it is a telling sign of the problem courts are facing with laws mandating minimum punishment for sexual crimes with a ‘one-size-fits-all’ approach”. The advocate adds in that sense, the judgement was welcome as it went against the trend to teeth sexual harassment laws with harsher punishments with an aim to reduce crime – a notion is often accused of being ineffectual in containing violence against women.

Be that as it may, the lawyer felt that coming up with new definitions to justify lesser punishment was not welcome if came at the cost of children’s safety.

“I definitely hope the state challenges the judgement, that is the only way to get justice for the victim,” Asthana says, adding, “children cannot pay the price for reforming laws”.

Good touch or bad touch?

While the verdict might be welcome for calling for, experts across spectrums agree the judgement, if not reversed, may end up having an adverse impact on child sexual safety.

Speaking to News18, Child Protection Head at Save the Children, Prabhat Kumar says that the judgement will further hamper the agency of children to report sexual crimes. “In the field, we have seen how difficult it is for minors to come up and report sexual crimes, even to their families. Such interpretations of the law further increase the fear and anxiety faced by children over what constitutes a good touch or bad touch,”

The verdict further complicates the case for women in reporting cases of molestation to law enforcement as it increases the chances of victim-shaming. “In many cases that we have noted, local law enforcement refuses to lodge complaints by women who in turn face abuse from police officers in the form of questions regarding unnecessary details such as the length of their clothes,” Kumar says, adding that the “skin to skin” interpretation of groping puts the one onus on women – even minors – in proving if their top was on when the accused touched their breast.

Ali, from HAQ, further explains that when it came to children, being subjected to degrading questions – whether they had their top on or off, whether they were touched over over the pants or not – could have a drastic impact on mental health.

Even as experts hope for the state of Maharashtra to appeal against the Nagpur bench’s verdict, the case has brought to light the need for a deeper understanding of what constitutes as a sexual offence, not from the perspective of the harshness of punishment it needs to incur but by way of correcting the injustice caused to the victim and providing safe spaces survivors of abuse when it comes to reporting sexual crimes.