SUPREME COURT STAYS BOMBAY HIGH COURT’S CONTROVERSIAL JUDGEMENT ON SEXUAL ASSAULT

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India ranks 133 out of 167 countries on Women, Peace and Security Index of 2019. It has been quite a long time since the efforts for women safety have been put forth by everyone including the Government, Activists, Individuals and Courts. Yet, there remains a big question mark over the prevailing conditions for women safety in India. As if the current situation was not enough, a judgement was delivered by the Nagpur Bench of the Bombay High Court in the case Satish v. State of Maharashtra,[i] giving a bizarre definition to the term “Sexual Assault”.  As per Justice Pushpa Janediwala’s remarks, it is necessary to have ‘skin to skin contact’ to attract the offence of ‘sexual assault’ under the Protection of Children from Sexual Offences (POSCO) Act, 2012.

Bombay High Court’s Judgement

The impugned judgment arises from an appeal made against the order of Sessions Court, whereby convicting the appellant for the offences punishable under Sections 354, 363 and 342 of the Indian Penal Code (hereinafter referred to as the “Code”) and Section 8 of the Protection of Children from Sexual Offences (POSCO) Act (hereinafter referred to as the “Act”).

The question before the High Court was to determine whether the “Acts” of the Accused-Appellant fall within the definition of ‘sexual assault’ as provided under section 7 of the Act. The Court took to a narrow interpretation of section 7 of the Act, thereby observing that ‘physical contact’ in the definition of ‘sexual assault’ means skin to skin contact. The Court went on to taking a narrow and restricted view of the definition due to stringent punishment of three years under section 8 of the Act as compared to under section 354 of the Code which attracts a minimum punishment of one year. The Court held that the act of ‘pressing breasts’ of the child without any specific details as to whether the act was done after removing the top or whether he inserted his hand inside top would not amount to ‘sexual assault’ under the definition of the same. Thereby, convicting the appellant under sections 342 and 354 of the Code while acquitting him under section 8 of the Act.

What is wrong with the Judgement?

The present judgment comes in the time when India is in the dire need to build a better and a safer Nation for women and children. And India at the same time is far away from its aim of building a safe Nation. A lot of developments were made after 2012 to make strict laws which eventually saw the legislature enacting the POSCO Act, 2012. The POSCO Act provides for a comprehensive law to protect children from the offences of sexual assaults, sexual harassment and pornography. While there are efforts being made to become more progressive when talking about child abuse, this judgement comes as an unfortunate event and a dangerous precedent.  

The judgement has, however, attracted an outrage from people from different sections all over the country. Activist Kavita Krishnan, secretary of All India Progressive Women’s Association, called it an ‘outrageous judgement’. The National Commission for Women has also announced its disagreement with the impugned judgement and said that it will challenge the judgement. Following which the National Commission for Protection of Child Rights (NCPR) asked the Maharashtra Government to file an urgent appeal against the impugned judgement.

Supreme Court’s Stay Order

The Supreme Court bench headed by the CJI SA Bobde, on 27th January, 2021 stayed the impugned judgement of Bombay High Court after the Attorney General, KK Venugopal submitted that the judgement ‘is a very disturbing conclusion’. The Court also asked the Attorney General to file a complete Writ Petition against the impugned judgement. The Youth Bar Association of India has also filed an appeal against the said order of Bombay High Court.

As India move towards women empowerment and protection of children from various abuses and assaults, these kind of precedents not only put forth hurdles in achieving the goal but also act as a catalyst in providing a firm support to the patriarchal form of society. Interpretation of laws must always be progressive and one wrongly interpreted law can result in much harm caused to not only the victim but also the society.

-By

Rachita Thakur

Student Reporter, INBA


[i] Criminal Appeal No. 161 of 2020