On January 19th, the Nagpur Bench of the Bombay High Court passed a judgement that took the internet by frenzy and created endless chaos and friction across the nation. The single-judge bench consisting of Justice Pushpa Ganediwala ruled that pressing the breasts of a minor without direct contact does not count as sexual assault under the POCSO (Protection of Children from Sexual Offences) Act. The judgement has sparked controversy and invited strong criticism for the interpretation of the act, since coming into force in 2012.
The Complaint
The case involved a 39-year-old convicted for offenses under the POCSO Act. The mother of the 12-year-old victim filed a complaint against the man, who lured the girl into his house under the pretext of giving her guava. He then pressed her breasts and tried to remove her clothing. Meanwhile, the girl’s mother searched for her daughter and by a neighbour’s tip, found her at the convict's house. A case was registered under POCSO and the man was convicted of sexual assault in the Sessions Court.
The Judgement
The convict then appealed the Bombay High Court, pleading for a lesser charge. He pleaded that his actions do not count as sexual assault and he should be charged for less serious offences. The court ruled in favour of the same, acquitting him of charges under the POCSO Act, which would have otherwise granted him a minimum three-year sentence, under Section 8 of the Act.
The Bombay HC ruled that the punishment under POCSO is stricter and would require greater substantial proof to ground the charges made against the convict. The court holds that although he did grope the girl, it cannot be termed as sexual assault as the girl’s clothes were still on.
However, the Section 7 of the POCSO Act reads as, " Whoever with sexual intent touches the vagina, penis, anus, or breast of the child. . .or any other act with sexual intent which involves physical contact. . . is said to commit sexual assault."
Instead, the court ruled that the accused should be convicted under the IPC for ‘outraging the modesty of a woman’. The intent was existent, but since the act was stopped by the mother, the intent part is not dealt with.
Furthermore, no previous precedence or any part in the legislation calls for a skin-to-skin contact for an act to be considered sexual assault. The court felt that the minimum sentence of three years is too high for his crimes and decided to drop the charges under POCSO and instead granted him a one year sentence.
The Supreme Court has stayed with the order.
The impact of the judgement and what's next for POCSO
The interpretation of the law is tricky and often involves using the nuances and technicalities to your strategic advantage. However, it's spirit is upheld by the judgements and the interpretations made in such sensitive cases that set a precedence for the future rulings.
The controversy was sparked because of the lesser sentence granted to the convict. The impact of public disagreement and criticism is being seen now.
Justice Pushpa Ganediwala is currently an additional judge of Bombay High Court. A three-member Collegium headed by Chief Justice of India, SA Bobde and also consisting of Justices NV Ramana took the decision to recall its January 20 recommendation made to the Central government to make Justice Ganediwala a permanent judge. This is due to her previous record in handing judgements.
In a judgment delivered on January 14, she reversed a conviction order after noting that there was nothing supporting the prosecution's case for rape (see: Jageshwar Wasudeo Kawle v. State of Maharashtra).
On January 15, she held that the act of holding hands of a minor or the zip of the pants of the accused being open at the relevant time, does not amount to sexual assault as defined under Section 7 of the POCSO Act (Libnus v. State of Maharashtra).
The third judgement was the one which caught maximum attention and came to light on social media and took people to the streets in protest.
The decision to withdraw the recommendation came after two senior Supreme Court judges, who hail from Maharashtra conveyed their reservations to the Collegium to make Justice Ganediwala a permanent judge, under the acquittals made in the week prior to her nomination.
Furthermore, the public discourse has led to pushing for a separate court for the handling of only POCSO related cases. This will ensure extra care and hopefully better judgements in future, with special judges also being appointed for the same.
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