Controversial skin to skin judgement of Bombay high court

Following two contentious decisions she rendered lately in instances involving sexual assault, the Centre has curtailed the term of renewal of a Bombay High Court extra judge by one year.

On January 24, the judge issued one of the most contentious decisions of her career, ruling that groping without ‘skin to skin' touch is not a sexual assault as described by the very popular act which is Protection of Children from Sexual Offences (Pocso) Act.

The Supreme Court Tribunal proposed Justice Pushpa V Ganediwala for just a permanent admission on January 20. This suggestion was rescinded as a result of her recent verdicts.

Her extension period has now been shortened by one year by the Centre.

Instead of urging the SC Collegium to rethink its proposal for a new two-year term, the administration opted to prolong the time by only one year, according to unidentified sources.

Additional judges are generally appointed for a period of two years before becoming permanent judges.

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According to the ruling, touching a minor's breast without making "skin-to-skin contact" is not considered sexual assault underneath the POCSO Act. The act could not be classified as sexual assault but since guy "groped the kid without stripping her garments," but it might be classified as ridiculing a woman's modesty against the particular Section 354 of the renowned act of india that is Indian Penal Code.

The high court overturned a session court's decision to punish the accused to three years in jail for sexually abusing a 12-year-old child there under POCSO Act and the IPC.

It was decided that simple groping does not qualify as "sexual assault."

According to the prosecution and the evidence of the child victim in court, the accused, Satish, took the girl to his residence in Nagpur in December 2016 under the guise of providing her something more to eat. He touched her and sought to remove her clothes after he arrived, according to the top court's ruling.

However, because he touched her without stripping her clothes, the crime cannot be classified as sexual assault and must instead be classified as ridiculing a woman's dignity under IPC Section 354, according to the high court.

While Section 354 only requires a one-year minimum sentence, the POCSO Act requires a three-year minimum sentence for sexual assault.

The guy was sentenced to three years in jail by the sessions court for violating the POCSO Act as well as IPC section 354. The phrases that have been tossed were supposed to go in parallel way but went otherwise. The high court, on the other hand, upheld his conviction under IPC section 354, while acquitting him under the POCSO Act.

Bad Touch

While the verdict may be applauded for calling for it, experts from all walks of life believe that if it is not overturned, it will have a negative influence on child sexual safety.

Prabhat Kumar, Child Protection Head at Save the Minors, told News18 that the ruling will make it more difficult for children to disclose sexual assaults. "We've seen how tough it is for children to come out and report sexual offences, even to their relatives, in the field. Children's fears and anxieties about what makes a good or harmful touch are exacerbated by such legal interpretations."

The high court then stated, "Considering the heinous nature of the punishment that is given for the violation of the act (under POCSO), tighter proof, as well as significant allegations, are equally necessary for the view of the court,"

The judgment complicates the situation for women who want to disclose incidents of molestation to law enforcement since it raises the risk of victim-shaming. "In many cases scenes that are scenarios that we have observed, generally police departments refuse to make lawsuits which are made by women, who when given the information are subjected to abuse from the very respected police forces in the manifestation of pointless questions about the length of their clothing and shoes," Kumar says, going to add that perhaps the "skin to skin" interpretation of accosting places the sole burden of proof on women - also minors - to show that their upper part was on when the offender touched them.

After receiving backlash for her understanding of sexual assault there under the Protection of Children from Sexual Offenses (POCSO) Act, the judge made the ruling. Justice Ganediwala also acquitted a man accused of grabbing a 12-year-old girl's chest because he won't make a skin-to-skin connection, and days earlier, decided that grabbing a five-year-old girl's arms and unzipping her trousers does not constitute "sexual assault" under the POCSO Act. 

After State Attorney KK Venugopal claimed that the judgment would create a dangerous pattern, the Supreme Court issued a stay mostly on the Bombay High Court order dated January 27.

Ali from HAQ goes on to say that subjecting children to demeaning inquiries like whether they had her underwear on or off, or whether they are being kissed over their trousers or not, can have a significant impact on their mental health.

As its experts hope that Maharashtra will appeal the Nagpur bench's decision, the case has highlighted the need for a better idea of what constitutes a sexual offense, not in terms of the severity of punishment that should be imposed, but in terms of correcting the oppression caused by the defendant and supplying trigger warnings for survivors of sexual assault when it comes to racial discrimination.

Meanwhile, the National Commission for Women (NCW) has announced that it would appeal the Bombay High Court's decision to the Supreme Court. According to NCW President Rekha Sharma, this verdict would not only have a major aspect on many issues regarding the protection and security of people in particular, but will also put all females to mockery.

What is the definition of sexual assault?

The Bombay High Court's decision has shocked survivors as well as child safety and protection specialists, who believe it sets a "dangerous" pattern for defining sexual assault in the trial.

"It is ridiculous to claim that sexual assault doesn't really occur while the victim is dressed. Consider the number of women who are sexually assaulted in public areas "HAQ Centre for Child Rights chief executive Bharti Ali says News18. "This type of definition of what constituted groping is not only unjust but also harmful to how all subsequent groping instances will be dealt with in courts."

"POCSO Section 8 notices physical contact, but the availability in the jurisprudence does not define what body contact is," student safety solicitor Anant Asthana tells News18. "In that sense, this application of the law is dangerous because it assumes that sexual assault can only start happening without clothing and shoes on."

The 39-year-old accused had been sentenced to two years in jail by a tribunal of sexually abusing a 12-year-old child. The High Court decision overturned that sentence.

Instead, the judge ruled that the event constituted an offense of outraging a lady's decency under IPC section 354, which carries a one-year legal law. (Sexual assault is punishable by a minimum of 3 years in jail under the POCSO Act.)

The lawyer points out that this is the flip side of the coin. Asthana believes that the judge's lowered sentence indicates urgency on his side to draw attention to the need to rethink how we punish sexual offenders. It is not a ruling in favor of the victim, but rather a ruling against heavy punishment for sexual offenses.

"Since 2018, regulations against sexual offenses have become more severe, with minimum obligatory punishments like the one under POCSO preventing judges from exercising their discretion case by case," Asthana adds.