By Sanjay Raman Sinha
Former Wrestling Federation of India (WFI) president and BJP MP Brij Bhushan Sharan Singh, who has been accused by some women wrestlers of sexual harassment, claimed in a Delhi court that hugging or touching without sexual intent doesn’t amount to an offence. Singh is opposing the framing of charges against him.
His lawyer, Rajiv Mohan, argued that in wrestling, coaches often express joy or anxiety through physical contact, and as such, actions like hugging players should not be interpreted through the prism of sexual overture or assault.
The Delhi Police had filed a chargesheet against Singh on June 15 under Sections 354, 354-A, 354-D and 506 of the Indian Penal Code. This includes assault or criminal force on a woman with the intent to outrage her modesty, sexual harassment, stalking and criminal intimidation. The chargesheet includes statements of at least 22 witnesses from across four states, including wrestlers, a referee, a coach and a physiotherapist. All have supported the allegations of the six women wrestlers against Singh. Earlier, the police had closed a POCSO case against him as the victim had retracted her allegation. The police said in court that there was no corroborative evidence against Singh.
Two key concepts of criminal law are in play in this case. The first is that of “intention” and the second, the “modesty of women”. The provisions of “intention” in the POSCO Act merit a closer look. Under this Act, the accused is presumed to be innocent unless proven guilty, and the entire “burden of proof” lies on the prosecution to prove his guilt. In order to obtain a favourable decision from the court, the prosecution has to provide sufficient and strong evidence to substantiate the relevant facts pertaining to their case.
Critical to this case of Singh is the issue of “bad touch”. Bad touch is inappropriately touching someone with a sexual intention. Bad touch is a crime under the law. The concepts of good and bad touch are nowadays taught to children from a very young age. This is done to make them aware of sexual predators, who in the garb of being near and dear ones, molest the child. Good touch can be defined as a touch that is appropriate.
Section 7 of the POCSO Act states: “The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of sexual assault under Section 7.” The operative word here is “intention”.
In criminal law, intent is a subjective state of mind or mens rea that must accompany acts of certain crimes to constitute a violation. The underlying theory is that people may be aware of many probable and possible consequences; hence, the culpability arising from such actions gets imputed unto the person. Intention is a purely subjective concept. However, it needs to be proved in a court of law.
In State of Maharashtra vs MH George, the Supreme Court held that criminal intention is a psychological fact which needs to be proved even with regard to offences under special acts unless it’s specifically ruled out or ruled out by necessary implication.
In Ramkripal S/o Shyamlal Charmakar vs State of Madhya Pradesh, it was stated: “Culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class.”
In a majority judgment, a bench comprising Justices UU Lalit and Bela M Trivedi reversed a Bombay High Court order which held that skin-to-skin contact was necessary for invoking charges under the POCSO Act. Justice Trivedi noted: “The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the ‘sexual intent’ and not the ‘skin to skin’ contact with the child.”
When the infamous Rupan Bajaj sexual assault case against KPS Gill went to the Supreme Court, it dealt in detail with the issue of touch and outraging of modesty. (Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr, 1995). The two-judge bench assessed Section 354 and 509 of the IPC, and tried to define the phrase “modesty of a woman” in the context of sexual assault. The concerned sections of the IPC read as follows:
- Section 354: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
- Section 509: Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Clearly, the operative phrase in these Sections is “modesty of a woman”.
In State of Punjab vs Major Singh (1967), Justice RS Bachawat wrote that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender which is capable of shocking the sense of decency of a woman. The bench referred to the Major Singh case wherein it was said that the “essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex”.
Coming to the Brij Bhushan Singh case, the chargesheet mentioned that he had allegedly touched a wrestler’s palm, knee, thigh and shoulders without obtaining consent. It also mentioned the sexual harassment happening in public places such as the WFI office. One of the victims recounted: “Once, I lost a bout in the wrestling league. As soon as I moved from the mat to my team box, Brij Bhushan headed towards me and hugged me forcibly. He held me for 15-20 seconds, I tried to push him but he didn’t let me go.” Another wrestler alleged: “I was standing in the last row (for team photograph) the accused (Brij Bhushan Singh) came and stood alongside me. I suddenly felt a hand on my buttock. When I tried moving away, I was forcibly held by my shoulder.”
The police asserted that they have photographs and CCTV footage of the said function and the accused and victims are shown in close proximity.
In this case then, circumstantial evidences and victims’ accounts support sexual abuse. Hence, the defence lawyer’s claim that hugging or touching without sexual intent doesn’t amount to an offence (of outraging the modesty of women) stands demolished.