NCW welcomes SC order setting aside Bombay HC's skin-to-skin judgment

New Delhi [India], November 18 : The National Commission for Women (NCW) on Thursday welcomed the Supreme Court's order setting aside the Bombay High Court's Nagpur bench's judgment that held skin-to-skin contact necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
According to a statement issued by the NCW, the commission had filed a special leave petition (SLP) before the Apex court on February 4 challenging the judgment stating that it would set a dangerous precedent for women's safety.
"The commission while filing the SLP had raised concern that the impugned order had far-reaching ramifications for women and children, exposing them to a desensitized society. Such a narrow interpretation adopted by the High Court in the impugned order would have had a cascading effect on the safety of women and children," read the statement.
"The commission welcomes the Supreme Court's verdict today and believes that the apex court's decision in the matter will uphold the legal and constitutional safeguard for women and children," it added.
According to NCW, the top court in its judgment said that sexual intent is important in such cases and that it cannot be taken away from the purview of the POSCO Act. The top court noted that the purpose of the law cannot be to allow the offender to escape the meshes of the law and giving a narrow meaning of physical contact to confine it to skin-to-skin contact would defeat the purpose of the POCSO Act which cannot be accepted.
The Supreme Court, earlier in the day, ruled that the most important ingredient of constituting sexual assault under Section 7 of POCSO is sexual intent and not skin-to-skin contact with the victim.
A Bench of Justices UU Lalit, S Ravindra Bhat, and Bela M Trivedi set aside the controversial Bombay High Court judgment that held that groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
In its judgment, the Bench said that skin-to-skin contact is not essential for POCSO offence as held by Bombay High Court.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, while passing judgment on January 19, had held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. Mere groping will not fall under the definition of sexual assault, the judge had said.
The judge had modified the order of a sessions court, which had held a 39-year-old man guilty of sexually assaulting a 12-year-old girl and sentenced him to three years of imprisonment.
As per the prosecution and the minor victim's testimony in court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat and then gripped her breast and attempted to remove her clothes.
However, the High Court said since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman's modesty under IPC section 354.
The High Court acquitted him under the POCSO Act while upholding his conviction under IPC section 354. Section 354 entails a minimum sentence of imprisonment for one year while sexual assault under the POCSO Act entails minimum imprisonment of three years.