India’s Supreme Court quashed a controversial order by a high court that had cleared a man for sexual assault on a 12-year old girl. It stated that there was “no skin-to-skin contact”.
In January of this year, a Mumbai high court female judge passed the order. It caused a lot of outrage.
Legal experts and activists claimed it was dangerous precedent and requested that the highest court strike it down.
The campaigners stated that it would discourage kids from reporting abuse.
Was the Supreme Court correct?
On Thursday, the Supreme Court ruled that the courts need to consider sexual intent rather than skin-toskin contact.
LiveLaw reports that “Restricting it skin-to-skin will not only be an narrow and pedantic reading, but also leads to an absurd interpretation of this provision.”
Judges ruled that Mumbai’s high court had “insensitively authorized sexual behavior” and that law “cannot be used to permit the offender escape the restrictions of the law.”
How did the case come about?
Unidentified 39-year-old male was accused of touching a 12-year old girl, December 2016. His mother claimed that he lured the girl to his house and made her take off her pajamas.
An inquest had found him guilty of sexually assaulting an infant under the strict Pocso (Protection of Children from Sexual Offences) Act. He received a sentence of three years imprisonment.
On 12 January, however, Bombay High Court Judge Pushpa Ganediwala decided that touching the breast of the girl without taking off her top wasn’t sexual assault. There was no skin to skin contact. It would also only lead to the minor charge for molestation.
It was widely condemned, and there were many petitions filed before the supreme court seeking to invalidate it.
The Supreme Court put on hold the order until they decided the matter.
Following Thursday’s decision, the accused will be sentenced to three years imprisonment.
It is a challenge
The Attorney General of India, KK Venugopal was among the petitioners at the highest court and called the judgment “outrageous”.
He stated that the order, if it was not reversed would be “setting a very hazardous precedent.”
Venugopal claimed that the Pocso Act does not require skin-toskin contact to commit a crime such as sexual assault.
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This judgment states that if a man wears surgical gloves tomorrow and touches the whole body of a woman’s female body, he will not be charged with sexual assault. According to the Indian Express, he said that this was an absurd order.
“The defendant tried to lower the salwar [pyjama bottom]He said that the bail was approved for the girl, and even then it was denied.”
This is the outrage
Child rights activists, civil society members, and others criticised the high court ruling, which was passed by a female judge. They called it “obnoxious” and “unacceptable”.
Critics highlighted the fact that this judgment was flawed because it addressed children who often are unable to defend themselves.
Many were concerned that the ruling might increase child exploitation risk in a country with many cases of child sexual abuse reported each year, where it is already a serious problem.
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A government survey in 2007 found that two thirds of Indian children were physically abused, and 53% reported some form of sexual abuse.
In the last 12 minutes, 43,000 Pocso Act offences were registered by National Crime Records Bureau.
Campaigners claim that the actual numbers of cases of abuse are higher, particularly when the perpetrators are family members or known victims.
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