India Supreme Court suspends Bombay High Court judgment on definition of sexual assault
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India Supreme Court suspends Bombay High Court judgment on definition of sexual assault

The Supreme Court of India on Wednesday suspended the controversial Bombay High Court judgment which held that there had to be “skin to skin contact” for an offense to constitute sexual assault under the Protection of Children from Sexual Offences Act (POSCO).

The stay was ordered by Chief Justice Sharad Bobde after Attorney General KK Venugopal submitted that the High Court’s decision “is likely to set a dangerous precedent.” In addition to the temporary injunction, Venugopal was granted permission to file a petition against the High Court’s judgment.

Hearing the case in question, Satish Ragde v State of Maharashtra, on appeal last week, Justice Pushpa Ganediwala, sitting on the Nagpur Bench of the High court, held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault under Section 7 of POSCO. According to Ganediwala’s judgment, as the accused had groped the 12-year-old victim through her clothing, the offense did not constitute sexual assault under POSCO but instead constituted the offense of outraging a women’s modesty under Section 354 of the Indian Penal Code (IPC). While his conviction under the IPC was upheld, the accused was acquitted of all crimes and imprisonment under POSCO. This meant that rather than facing 3-5 years of imprisonment under POSCO regulations, the accused will face imprisonment between 1-5 years according to the IPC.

Ganediwala’s decision establishes a new precedent, whereby mere groping whilst clothed will not fall within the scope of sexual assault offenses as according to POSCO. The POSCO code had most recently been amended in 2019 to ensure “the healthy physical, emotional, intellectual and social development of the child.”

The decision was not received well by many human rights activists and bodies. Rekha Sharma, Chairperson of the National Women’s Commission, expressed her disdain in a tweet Monday, stating:

This judgment will not only have cascading effect on various provisions involving safety and security of women in general but also put all the women under ridicule and has trivialized the legal provisions provided by the legislature for the safety and security of women.

While the Supreme Court stay order will provide interim relief, appeals have been filed by the Youth Bar Association of India and the National Commission for Protection of Child Rights, urging the Supreme Court to permanently expunge the High Court decision which they believe to be “unwarranted.”