A leap backwards PDF Print E-mail
Tuesday, 26 January 2021 00:00
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Sarthak edit 

The interpretation forwarded by the Nagpur Bench of the Bombay High Court of what constitutes sexual assault under the Protection of Children from Sexual Offences (Pocso) Act is regressive and dangerous. Justice Pushpa Ganediwala ruled that unless there was skin-to-skin contact with sexual intent, the act would not qualify as sexual assault under Section 7 of the Pocso Act. In her judgment, she termed it an act of outraging the modesty of woman under the Indian Penal Court, which carries a shorter jail term (one year) than Pocso’s minimum of three years. The Pocso Act defines sexual assault as a non-penetrative act with sexual intent involving physical contact with specified part of the body. The leap from physical contact to ‘skin-to-skin’ contact (groping without disrobing) has grave repercussions for the understanding of sexual assault on minors and is especially dangerous to child and gender rights, given it comes from a constitutional court. The reading down of the severity of the offence—though an obsolete understanding of sexual and gender violence such as ‘outraging the modesty of a woman’ itself is problematic—militates against the goal of the Pocso Act, which says “it is imperative that the law operates in a manner that the best interest and the well-being of the child are regarded as being of paramount importance…”. The consequences of the assault being read down on the survivor’s psyche will surely be concerning? 

The judgment is an indicator of the need for framing laws relating to such crimes in a manner that minimises loopholes. The country recorded an overall of 4,05,861 cases of crimes against women in 2019, a 7% jump over the 2018 number; a large number of these crimes pertain to sexual offences. The conviction rate in crimes against women, as per the National Crime Record Bureau’s data for 2019, is a mere 22.2%. Against this backdrop, if offences are thought to be of lesser severity than they are by the judiciary, the bearing of this for gender justice is a matter of grave concern. To be sure, the Bombay High Court judgment can still be challenged in the Supreme Court, but this unnecessarily delays securing of justice, that too in a case where the survivor of the crime is a minor. The judgment also underlines the necessity to impart sensitisation training to members of the judiciary, and perhaps, even law-keeping forces on such crimes and the ramifications of judicial missteps for the survivors, who constitute a special class of vulnerability. Without this, justice delivery will likely be only partial.


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