Everyone accustomed to legal updates and who claim to have prowess in the legal field is aware of the recent controversy surrounding POCSO judgments by the Nagpur Bench of the Bombay High Court. This Article explores the outrageous response with which the judgment in Satish v. State of Maharashtra has been received. It talks about the interpretation of section 7 (sexual assault) under the POCSO Act, and how the infamous skin-to-skin contact interpretation of physical contact in the certainly defeats the legislative purpose of the POCSO Act.
The Nagpur Bench of the Bombay High Court recently held that in the absence of ‘skin-to-skin contact,’ groping a child’s breast would not amount to the serious offense of ‘sexual assault’ under section 7 of Protection of Children from Sexual Offences (POCSO) Act but shall be considered as ‘molestation’ under the Indian Penal Code (IPC).
As per this observation, the Nagpur Bench, which consisted of Justice Pushpa Ganediwala, modified the order of the Sessions Court, which held the accused, a 39-year-old man, guilty of sexual assault for groping a 12-year-old (at the time the offense was committed, i.e., in 2016) girl and removing her salwar. Ragde had, in the pretext of giving the child guava, taken her to his house, where he proceeded to grope and attempted to disrobe her.
The accused had been charged with sections 342 (wrongful confinement), 354 (outraging the modesty of a woman), and 363 (kidnapping) of the IPC, and section 8 of the POCSO Act. The Sessions Court punished the accused according to section 8 of the POCSO Act, which attracts minimum imprisonment for three years.
While modifying the order, the Nagpur Bench held the man guilty under sections 342 and 354 of the IPC and acquitted him under section 8 of the POCSO Act. The Court stated that considering the “stringent nature of the punishment provided under POCSO for the offense of sexual assault, stricter proof, and serious allegations are required.” Since the act of pressing the child’s breast lacks any specific details regarding whether her top was removed or whether the man inserted his hand inside the top to grope her, it would not come under the ambit of sexual assault as defined under POCSO.
SECTION 7: SEXUAL ASSAULT UNDER THE POCSO ACT
“Whoever with sexual intent touches the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
Essentials of ‘sexual assault’ under POCSO:
From the above definition, we can derive the following essentials of sexual assault:
All of the above acts, however, must have been done with ‘sexual intent.’
In this judgment, a literal interpretation has been allocated to the term ‘physical contact’ with regard to the first two parts of the provisions by minimizing its scope to ‘skin-to-skin contact,’ thereby reducing the ambit of sexual assault.
As elucidated by LiveLaw, a similar situation with a male child would attract no punishment even under section 354 of the IPC since it is only applicable to women. Further, sexual intent in the case must be emphasized.
Sexual intent eliminates any possible ambiguity that could arise with regard to the intention of the touch initiated by the accused. A conviction under section 354 establishes the existence of such intention, which would render a conviction under section 8 of the POCSO Act. The POCSO Act is a victim-oriented legislature. It enables the grant of significance to the injury caused to the victim.
The reduction of the act from clearly being a sexual assault to molestation defeats the object of the provision and grants the convict immense allowance after committing such an offense.
WHY IS THE JUDGMENT PROBLEMATIC?
The sole justification given for the judgment is the lack of ‘stricter proof’ and ‘serious allegations.’ The Court has applied the principle of proportionality, which entails the imposition of a punishment proportional to the gravity of the offense committed. This justification, thus, deems the act of pressing the breast of a 12-year-old child not grave enough to call it sexual assault.
The POCSO Act casts a more significant burden on the accused than on the prosecution, making it protective and beneficial legislation. It is expected to be interpreted in such a manner that protects the interest of children. Model Guidelines issued by the Ministry of Women and Child Development under section 39 of the Act state that the Act recognizes “almost every known form of sexual abuse against children as punishable.” Therefore, it does not matter if the groping had been done with or without the clothes. Such an interpretation contradicts the purpose of the legislation.
The definition of sexual assault under the Act is quite vivid and unambiguous. The essentials of section 7 have unquestionably been satisfied in the present case. The judgment, rightly so, hasn’t attracted positive responses, with numerous legal experts calling it “bizarre” and “absurd.”
SUPREME COURT’S STAY ORDER ON THE JUDGEMENT
Unsurprisingly, the judgment has been challenged in the Supreme Court by various bodies. The Youth Bar Association of India has filed an appeal which states that the Single Judge’s observations are ‘unwarranted’ and that the reasoning provided, i.e., there was no physical contact since there was no skin-to-skin contact, is dastardly.
The Chairperson of the National Commission for Women (NCW), Rekha Sharma, posted a tweet on January 25, 2021, to inform that NCW shall be challenging the judgment before the Apex Court. The National Commission for Protection of Child Rights (NCPCR) has approached Maharashtra’s Government to file an urgent appeal against the judgment.
As a result, the Supreme Court has stayed the acquittal of the accused under section 8 of the POCSO Act. A Bench head passed the order by the Chief Justice of India on the Attorney General’s recommendation, KK Venugopal, who stated that the judgment likely sets a dangerous precedent.
It is significant to understand, and if possible, comprehend, the severity of the observations made by the Court:
In its simplest sense, the above observations mean that the situation of a 12-year-old child being groped is not severe enough to attract harsher consequences. The judgment puts forward a requirement into the statute that is neither found in it nor mandatory. This judgment trivializes the acts of sexual violence children go through; it diminishes the experience of young girls by destroying the protective purpose of the statute.
It was unexpected, to say the least, that the learned Judge would apply creative construction to the statute instead of serving the legislative intentions. Physical contact does not necessarily translate to skin-to-skin contact. In the absence of a concrete definition of the same, the ‘skin-to-skin contact’ interpretation can undisputedly weaken the progress that has been so far made in feminist jurisprudence.
ABOUT THE AUTHOR
Sidra Javed is a final year law student from Amity Law School, AUUP.
In Content Picture: Picpedia.org
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.