In a controversial order that could affect a range of cases, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay Highcourt passed a judgment on January 19th, holding that groping a child’s breasts without ‘skin-to-skin contact’ would amount to molestation under the Indian Penal Code but not the graver offense of ‘sexual assault’ under the Protection of Children from Sexual Offenses (POCSO) Act.
The single bench of Justice Ganediwala made the observation while modifying the order of a sessions court that held a 39 year old man guilty of sexual assault for groping a 12 year old girl and removing her salwar. The court has now sentence the man under Section 354 of the Indian Penal Code (outraging a woman’s modesty) to one year imprisonment for the minor offence (Satish v State of Maharashtra)
The man had initially been sentenced to three years’ imprisonment under section 8 of the Act by a trial court for pressing the breasts of a minor. The Justice later said that “stricter proof and serious allegations are required”.
This flawed judgement is deeply problematic, diluting the gravity of the situation bu resorting to literal interpretation of the section, by holding that since there was no skin-to-skin contact, the offence of “sexual assault” has not been made out. This came after it had in fact been proven that the accused had pressed the breast of the girl. Justice Pushpa says that since there is an absence of any specific detail as to whether the top was removed or he inserted his hand inside and pressed her breast, it could not fall under the definition of sexual assault.
This decision has come with a lot of backlash, with people believing that such a narrow interpretation of the term “sexual assault” taken by the Bombay High Court is a step in the wrong direction and sets a wrong president. This order has caused fear among females since it could perhaps dilute the mandate of other legislations enacted for the safety and protection of women and young females. This could be a step backwards in the fight against systematic sexism. Now, all eyes are on the Supreme Court of India to make the right decision.