Supreme Court allows NCW plea against Bombay HC verdict on groping without ‘skin-to-skin’ contact

The Supreme Court on Wednesday agreed to hear a plea filed by the National Commission for Women challenging the recent Bombay High Court verdict which said that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault under the Protection of Children from Sexual Offences Act, PTI reported

A three judge bench of Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian issued a notice to the Maharashtra government, seeking its response to the NCW plea. The court also issued another notice to the accused in the case on a separate plea filed by the state of Maharashtra against the High Court verdict.

Earlier on January 27, the Supreme Court had stayed the High Court verdict after Attorney General KK Venugopal submitted that the judgement was “unprecedented” and was “likely to set a dangerous precedent”. The court had also asked Venugopal to file a petition against the judgement.

In Wednesday’s hearing, Bobde asked Senior Advocate Geeta Luthra, appearing for NCW, why the plea should be entertained when the verdict had already been stayed. To this, Luthra referred to provisions under the NCW Act and said that the statute provides that the commission should move court for correction if any such matter came up, reported PTI.

In its plea, the NCW submitted that if such a perverse interpretation of physical contact is allowed, it will adversely impact the basic rights of women, who are victims of sexual offences in the society and will undermine the beneficial statutory safeguards prescribed under various legislations aimed at protecting the interest of women.

While it allowed the NCW plea, the Supreme Court said that it will not entertain petitions filed by non-government organisations such as the Bharatiya Stree Sakthi and Youth Bar Association as the state had already challenged the judgement, Live Law reported. The court however allowed the NGOs to approach the attorney general, who has also filed a petition against the judgement, to raise their points.

The controversial Bombay HC verdict

In a judgement passed on January 19, the Bombay High Court had ruled that groping a minor’s breast without removing their top did not fall into the category of sexual assault defined under Section 7 of the Act. A bench of Justice Pushpa Ganediwala was hearing an appeal against the conviction in a case where a man had allegedly taken a minor girl to his house on the pretext of offering her a fruit, pressed her breasts and partially stripped her.

Section 7 of the POCSO Act states, “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.”

Based on the above definition, the court concluded that for a person to be held guilty under this law, the act would have to be committed with a “sexual intent”, and it must involve “touching the vagina, penis, anus or breast of the child or any other act, which are similar to the acts specifically mentioned in the provision”.

The judge, therefore, acquitted the accused under POCSO Act, while upholding his conviction under Section 354 of the Indian Penal Code, which criminalises outraging the modesty of a woman.