‘THE SKIN-TO-SKIN CONTACT CASE’ – A CRITICAL ANALYSIS

By Nickkita Shome


INTRODUCTION :

Satish Ragde V. State of Maharashtra,2021[1] also known as the ‘The Skin-to-skin Contact Case’ is one of the most famous judgments, passed by the Bombay High Court. This case is related to the sexual assault of a twelve-year-old girl. The Trial Court sentenced the accused under two acts. One of them being – The Indian Penal Code (IPC)[2]‘outraging the modesty of a woman’ and the second being, The Protection of Children from Sexual Offences (POCSO) Act, 2012[3], - S.7 and S. 8 of the Sexual Assault. He was punished with three years of jail. However, after this, he challenged the judgment and appealed in front of the Nagpur Bench of the Bombay High Court.

Justice Pushpa Ganediwala finally held in this case that the act of assault as committed by the accused was “groping of clothes” and there was no skin-to-skin contact. Hence, the accused should only be punished under the IPC Provisions of ‘outraging the modesty of a woman’ and not under the POSCO Act. Therefore, the sentence of three years of jail was reduced to one year. And thus, it became a landmark judgment which stated that – ‘If there is no skin-to-skin contact, then it would not be considered as a sexual assault.’

S.7 and S.8 of the POSCO Act states that – if anyone touches the private parts or any organ of a minor with sexual intent then, it would be considered as a ‘sexual assault’. However, if we follow the judgment of the Nagpur Bench then, any person can inappropriately touch a minor from above the clothes and he will only be punished for a year. For this reason, the entire nation backlashed on this judgment, and due to these circumstances, the Supreme Court put a hold on the order.

The Protection of Children from Sexual Offenses (POCSO) Act, 2012[4] stipulates 'to protect against sexual assault, sexual harassment, and pornography crimes and to provide for the establishment of special tribunals for the trial of such crimes'[5]. This activity is for the purpose of, and also considers, the happiness and best interests of the child, so the legislative goal is to address the issue of sex offenses committed against the child that exceeds the loopholes in the existing Criminal Code regulating sex offenses subject to the Indian Penal Code (IPC) of 1860. It was to provide an extra layer of protection to minors, a very safe method, where one judge ruled in the court setting a dangerous precedent that defines ‘sexual assault’[6], which was ignored.


BACKGROUND OF THE CASE :

The offender Bandu Ragde, 39-year-old was accused of enticing the 12-year-old girl to his house on the pretext of giving her guava but instead, he pressed her breast, and attempted to remove her dress. A case was then filed against Ragde under the POSCO Act. He was sentenced to three years of jail by the trial court. He was given this decision by the sessions court on the basis of S. 8 of the POSCO Act.

The case was appealed in High Court and the Nagpur Bench of the Bombay High Court reversed the decision of the sessions court of conviction under POSCO and a three-year jail term. It reduced the sentence due to the density of the crime. The High Cout upheld the conviction under IPC Section 354(Outraging the modesty of women)[7] which carries a lesser minimum sentence of one year. The single-judge bench of Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in her judgment, which she passed on January 19, held that there must be “skin-to-skin contact with sexual intention without penetration” for an act to be considered sexual assault. In her verdict, the judge said “mere groping will not fall under the definition of sexual assault.” [8]

Also, in his order, Justice Pushpa G ruled that the mere act of pressing the breast of a child aged 12 years without removing her top or dress will not fall within the definition of ‘sexual assault’ under Section 7 of the POSCO Act. The High Court acquitted the charges under Section 8 (punishment for sexual assault) of the POSCO Act while maintaining his conviction under Section 354 the IPC.

This judgment was criticized by NCPCR, NCW, and many other women activists. So, in this regard, High Court reasoned that since the offence under POSCO carried a higher punishment, a conviction would require a higher standard of proof and allegations that were more serious. They also said that since the “convict groped the prosecutrix over her clothes”, this indirect contact would not constitute sexual assault.


OTHER SIMILAR CASES :

In a similar case, Vishakha V. State of Rajasthan[9], it was held that – the term sexual assault or sexual harassment will include ‘any’ touch which is done with sexual intent.

Another case of POSCO where the legal provisions were restrictively read was the State v Bijender, 2019. In this case, a seven-year-old girl complained that a man took her into a bathroom by force and tore her jeans, and physically abused her. The Delhi High Court held in this case that the “act of tearing the clothes of the victim did not constitute physical contact even if sexual intent was present”. The reason for the judgment as given by the judge was that the accused did not touch any private parts such as breasts, anus, or vagina of the child and thus, Section 8 of POSCO Act could not be involved.

Hence, just like the Satish Ragde V. State of Maharashtra,2021[10], the Delhi High Court too convicted the man under IPC provisions and did not include the POSCO Act.



MINIMUM SENTENCING :

Section 8 of the POSCO Act punishes a criminal with imprisonment of three to five years and also a minimum sentence as established under Section 7 of the same Act. It is also mentioned that subject to the density of the crime, the court would decide whether the convict should be imprisoned for more or less or would also be imposed with a fine.

Consequently, the mandatory minimum sentencing was fixed to be three to five years and subject to change, depending upon the seriousness of the offence. It was stated by this fact that due to this they would be committing less or no crime after moving out of jail. This was decided after the heinous Nirbhaya Delhi Gang Rape Case, 2013[11], that there should be minimum sentencing of a crime that offends the modesty of a woman. It also applies to cases where the convict has used criminal use of force.

The various research papers written on this topic have suggested that mandatory sentencing in law leads to fewer convictions. An NLSIU report on the ‘Study on the Working of Special Courts under the POCSO Act in Delhi’ has highlighted the reluctance of courts in convicting under sections that carry a mandatory minimum sentence. The report highlighted that “Some within the legal fraternity were of the view that minimum sentences under the POCSO Act are very high”.

CONCLUSION :

The decision made in the present case of Satish Ragde V. State of Maharashtra,2021[12] undermined the legislative intent of the bill to strengthen protection against minors and ensure healthy growth among them. The ridiculous interpretation of the term "sexual assault" questioned its very purpose. In fact, it poses a serious threat to minor sexual abuse cases and neutralizes POCSO's ability to punish sex offenders. Therefore, this ruling is shocking not only to the survivors but also to the general public as a whole. The narrow interpretation of the law has deprived children of their protection, which is terrifying.

Although the court acknowledged that the punishment must be commensurate with the seriousness of the offense, the fact that the juvenile was of special protection value was not emphasized. This is a grave violation of the principles of natural justice and is very detrimental to the interests of society as a whole. One of the judge's most important responsibilities is to give full consideration to the intent behind the legislation. The same can be confirmed only by reading the law and its preamble. The POCSO Act took into account the criteria laid down by the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 11 December 1992 to which the Government of India joined[13]. The interpretation of the law is flawed, as "physical contact" does not necessarily mean skin-to-skin contact.

Thus, judges relied on a flawed interpretation of the law and endangered the lives of millions of children. This flawed interpretation makes the whole law verbose. Attorney General KK Benugoparu has asked the Supreme Court to demand suo-moto recognition on this issue. “The Attorney General has notified the defendants in the Bombay High Court, Nagpur bench ruling of January 19, 2021, acquittal under section 8 of the POCSO Act on the grounds that the accused had no sexual intent. Because of this, the POCSO committed a crime, which the Attorney General has submitted that the order is likely to set an unprecedented and dangerous precedent. We allow the Attorney General to file appropriate petitions against orders. In the meantime, we maintain the defendant's acquittal.” [14]

The ruling has been severely criticized by numerous parties. In the meantime, despite the stay order, the judge passed more controversial verdicts.[15] She overturned the conviction order because the verdict had nothing to support the prosecution's rape case. The next day, she argued that the act of holding the hand of a minor or zipping the defendant's pants open at the relevant time constitutes sexual assault, as defined in section 7 of the POCSO Act.[16] The Supreme Court has since withdrawn its recommendation confirming the permanent status of Judge Pushpa Ghane Di Zip of the State Supreme Court. While the judgment remains, we only hope that the judiciary will correct this serious error through further judgments.


[1] Satish Ragde V. State of Maharashtra, (2021) SCC BOM 72 [2] The Indian Penal Code, 1960. [3] The Protection of Children from Sexual Offences (POCSO) Act, 2012 [4] Id. at 3 [5] The Protection of Children from Sexual Offences Act, 2012 [6] Section 7 of the Protection of Children from Sexual Offences Act, 2012 [7] Section 354 of the Indian Penal Code, 1860 [8] Krishnadas Rajagopal, Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act, THE HINDU, https://www.thehindu.com/news/national/supreme-court-stays-bombay-hc-order-on-skin-to-skin-contact-for-sexual-assault-under-pocso-act/article33675124.ece [9] Vishakha V. State of Rajasthan, AIR 1997 SC 3011 [10] Infra. at 1 [11]Mukesh and Anrs. Vs NCT Delhi (Nirbhaya Case), (2017) 6 SCC 1 [12] Infra. at 1 [13] Mukta Sathe, Bombay HC’s interpretation of POCSO risks making the law redundant (2021), THE INDIAN EXPRESS (Jul. 26, 2021, 10:04 AM), https://indianexpress.com/article/opinion/columns/bombay-hcs-interpretation-of-pocso-risks-making-the-law-redundant-7165780/ [14] [14] Skin-to-skin contact: SC stays Bombay HC order acquitting man under POCSO Act, THE LIVE MINT (Jul. 26, 10:40 AM), https://www.livemint.com/news/india/skintoskin-contact-sc-stays-bombay-hc-order-acquitting-man-under-pocso-act-11611744078265.html [15] Jageshwar Wasudeo Kawle v. State of Maharashtra, [16] Libnus v. State of Maharashtra


Author: Nickkita Shome

Course: BALLB(H), 3rd Semester

College: Amity Law School, Amity University Kolkata

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