SC stays Bombay HC’s controversial order on child sexual assault

The Supreme Court on Wednesday stayed the controversial ruling by Bombay High Court which had said that ‘skin to skin’ contact is necessary for it to be sexual assault under the Protection of Children against Sexual Offences (POCSO) Act. The Attorney General of India, KK Venugopal, told the Supreme Court that the judgment delivered by the High Court was “disturbing” and is “likely to set a dangerous precedent.”

The SC bench, headed by Chief Justice SA Bode, allowed the Attorney General to file an appropriate petition against the High Court’s order, and stayed Bombay High Court's acquittal of the accused under Section 8 of the POCSO.

In the Bombay High Court of January 19, Justice Pushpa Ganediwala had acquitted a man accused under Section 8 of POCSO Act, stating that the act of groping a minor without “skin to skin” or “direct physical contact” cannot be categorised as sexual assault as defined by law, and hence the accused cannot be penalised under Section 8. The accused had filed an appeal against the conviction under Section 8 of the POCSO case. Admitting the accused’s appeal, the bench said the question that the court is considering is whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act. The HC, however, sentenced him under Section 354 of the Indian Penal Code, which penalises “outraging the modesty of a woman.” The accused’s jail term was reduced from three years imprisonment — under the POCSO Act — to one year imprisonment, as per the IPC Section 354.

The judgment had been severely criticized by experts and activists alike, who had said that this may set a bad precedent for minors who face verbal molestation and harassment.

The National Women’s Commission had also planned on moving the Supreme Court against the Bombay order. Now, the Supreme Court has stayed the judgment and has issued a notice to the accused in the case, asking for a response in two weeks.