This Article is written by Nashita Nazneen. A, student of B. S. Abdur Rahman Crescent Institute of Science and Technology
The Protection of Children from Sexual Offences Act, 2012 hereinafter referred to as the ‘POCSO Act’ is a law to protect children from offenses of sexual assault, harassment, and pornography. It incorporates child-friendly mechanisms for reporting, recording, investigation, and trial in particular Courts. The POCSO Act operates under the Ministry of Women and Child Development.
This Act was introduced to protect the interest, safety, and dignity of children. Being gender-neutral in nature, the welfare of the child is of paramount importance.
The recent Amendment Bill, 2019 seeks to incorporate stringent punishments to those engaging in such activity with children under the age of 18 years with a punishment of fines, imprisonment, and death.
BRIEF OF THE CASE
On January 19, the Nagpur Bench of the Bombay High Court held that groping of a 12 year old child’s breast without removing her clothes does not fall within the definition of sexual assault under Section 7 of the POCSO Act.
The incident took place in December 2016. The accused took a 12-year-old girl to his house on the pretext of giving her guava. The accused ‘pressed her breast and attempted to remove her clothes’. The girl’s mother reached the site and rescued her daughter. A complaint was lodged by the mother of the minor.
The Trial Court convicted him under Section 354 (outraging of modesty of women), Section 363 (Kidnapping) and Section 342 (wrongful confinement) of the Indian Penal Code and Section 8 (punishment for sexual assault) of the POCSO Act. The accused was sentenced to 3 years rigorous imprisonment and a fine of Rs. 500/-
On filing an appeal to the Bombay High Court (Sathish Radge v. the State of Maharashtra), the accused was acquitted under Section 8 of the POCSO Act on the grounds that there was no intent to sexual assault because there was no skin-to-skin contact between the accused and the victim causing an absence of direct physical contact. The accused is convicted under Section 354 and 342 of IPC. The punishment of the former offense is 3-5 years of imprisonment, whereas the latter offensesare1-5 years of imprisonment.
The Bombay High Court went on to mention that, “given the stringent nature of the punishment, strict proof and serious allegations is essential”. The punishment must be equally proportionate to the seriousness of the crime.
The Court proceeded to examine the ingredients of sexual assault:
- Sexual intent to commit the offense.
- Touching of the vagina, penis, anus, or breast of the child.
- Making the child touch the vagina, penis, anus or breast of the other person.
- Any other activities within the same nature of the above-mentioned act.
SUPREME COURT’S STAY
The National Commission for Protection of Child Rights (NCPCR) wrote to Maharashtra Government to file an appeal against the verdict. The Youth Bar Association of India filed a petition in the Supreme Court challenging the Judgment. Attorney General of India, A.K. Venugopal addressed this matter as being ‘very disturbing’ and could set a ‘dangerous precedent’.
This Judgment was stayed in the Supreme Court of India, by a bench headed by CJI S.A. Bobde, until a petition is filed challenging the High Court Order.
This Judgment is the classic example of a literal interpretation of the provision.
Section 7 of the POCSO Act defines sexual assault as,
“Whoever, with the 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”.
Ingredients of this provision are as follows:
- Sexual intent.
- Touches the vagina, penis, anus, or breast of the child.
- Makes the child touch the vagina, penis, anus, or breast of such person or any other person.
- Does any other act with sexual intent.
- Physical contact without penetration.
This particular Judgment has reduced the scope of sexual assault by narrowing the meaning of ‘physical contact’. This Judgment observed that ‘physical contact’ means ‘skin-to-skin contact’.
This Judgment is in complete contravention to the previous decisions such as in Ravi v. State where the Delhi High Court held that holding of hand with sexual intent is sexual assault. In Rakesh v. State, the aforementioned Court held that pressing the breast of the child with sexual intent is sexual assault without considering the ‘with or inserted or without clothes factor’.
With no specific definition of ‘physical contact,’ the Act does not intend to be static and limit its scope. On the other hand, with no definition to such wide-ranging words would be the cause of such outrageous judgments, leading to a bad precedent.
It has stark an arrow on the progress of the feminist jurisprudence which has undergone major changes over the years. The Model Guidelines of the POCSO Act (Section 39) states that the Act ‘recognizes all forms of sexual assault and is punishable’.
Many reports suggest that the impact of sexual assault on the child is enormous, as they face criticism from the society, loss of self-confidence, self-esteem, etc.
In Jageshwar Wasudeo Kawle v. the State of Maharashtra, on January 14, the Bombay High Court reversed a conviction Order stating that there was nothing to prove the prosecution’s case of rape.
In Libnus v. the State of Maharashtra, on January 15, the Bombay High Court held that holding hands of minor or open zip of accused pants does not amount to sexual assault under POCSO Act.
The POCSO Act is gender-neutral. Under the context of the present judgment, if a boy is pressed that way with no skin-to-skin contact, the accused is left free as Section 354 applies to only women. This Judgment is unreasonable on various levels. Many eminent jurists, senior advocates have criticized this Judgment to be ‘bizarre, not legally sound, a wrong message, deeply troubling, very problematic’, among other statements.
Over many years the POCSO Act has been the strictest law being open for reasonable interpretation and proven to be beneficial to minor children. Recently, the Madras High Court stated that the POCSO Act does not intend to penalize adolescents in romantic relationships, thereby quashing the complaint filed under Section 482 of CrPC. However, this Judgment has deified all rules of reasonableness and logic. Currently, the Supreme Court collegium has withdrawn the recommendation to make Bombay High Court Judge permanent.
“The strictest law sometimes becomes the severest injustice”
- Benjamin Franklin
- Bar and Bench, Supreme Court Collegium withdraws recommendation to make Bombay High Court judge permanent, January 30, 2021.
- Buzz Staff, Who is Justice PushpaVirendraGanediwala? The Bombay HC Judge in News For ‘Controversial’ POCSO Rulings, News18, January 29, 2021.
- Debayan Roy, Supreme Court stays Bombay High Court Judgment which ruled skin-to-skin contact necessary for offence of sexual assault under POCSO, The Bar and Bench, January 27, 2021.
- Mani Chander, Why Bombay HC sexual assault under POCSO needs skin-to-skin observation is deeply problematic, Times of India, January 25, 2021.
- Meera Emmanuel, POCSO Act not intended to penalize adolescents and teenagers in romantic relationships: Madras High Court, Bar and Bench, January 29, 2021.
- Prachi Bhardwaj, No sexual assault if no ‘skin-to-skin’ contact? Supreme Court stays Bombay High Court’s “dangerous precedent” on POCSO Act, SCC Online, January 27, 2021.
- Radhika Roy and HarshitaSinghal, How Bombay High Court’s interpretation of Section 7 of POCSO Act fails us, Live Law, January 26, 2021.
- The Wire Staff, ‘Holding minor’s hand, unzipping pants are not sexual assault under POCSO Act’: Bombay HC, The Wire, January 28, 2021.
- Sathish Radge v. the State of Maharashtra; Criminal Appeal No. 580 Of 2014 | 11-12-2017
- Jageshwar Wasudeo Kawle v. the State of Maharashtra; CRIMINAL APPEAL NO. 20 OF 2020; 917apeal 20.2020.odt