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Thursday, June 30, 2022

Explained: In Bombay HC verdict on sexual assault, issue of mandatory minimum sentencing

The Bombay HC has acquitted a man of sexual assault charges under the POCSO Act for groping a child, and instead convicted him under the IPC for a lesser offence. What is this case about?

Written by Apurva Vishwanath | New Delhi |
Updated: January 30, 2021 10:59:02 am
The ruling drew criticism for its restricted interpretation of the offence.

The Bombay High Court has acquitted a man of sexual assault charges under the Prevention of Children from Sexual Offences (POCSO) Act for groping a child, and instead convicted him under the Indian Penal Code (IPC) for a lesser offence. Justice Pushpa V Ganediwala said the allegation was not serious enough for the greater punishment prescribed under the law. The ruling, which drew criticism for its restricted interpretation of the offence, spotlights the concept of mandatory minimum sentencing in legislation, including POCSO.

What was this case about?

The Nagpur Bench of the Bombay High Court reversed the decision of a sessions court which had convicted 39-year-old Bandu Ragde under Section 8 of the POCSO Act, and sentenced him to three years in jail. Section 8 prescribes the punishment for the offence of sexual assault defined in Section 7 of the Act.

The convict was accused of luring the 12-year old prosecutrix to his house on the pretext of giving her a guava, and pressing her breast and attempting to remove her salwar.

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The High Court upheld the conviction under sections that carry a lesser minimum sentence of one year under the Indian Penal Code, including outraging the modesty of a woman.

Why did the High Court acquit the man of charges under the POSCO Act?

The court reasoned that since the offence under POCSO carried a higher punishment, a conviction would require a higher standard of proof, and allegations that were more serious.

Section 7 of the Act says “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…”

The court said that since the convict groped the prosecutrix over her clothes, this indirect contact would not constitute sexual assault.

Is such a reading of the law unusual?

Such restrictive reading is not uncommon, especially in POCSO cases.

In State v Bijender (2014), a Delhi court acquitted a man under the POCSO Act and instead convicted him of IPC offences. A seven-year-old girl had testified that the convict took her into the bathroom by force, slapped her, and tore her jeans. The Special Court held that the act of tearing the clothes of the victim did not constitute physical contact even if sexual intent was present.

This was despite the recognition of “any other act with sexual intent which involves physical contact without penetration” to be sexual assault under Section 7 of POCSO. The judge reasoned that since the accused did not touch the vagina, anus or breasts of the child, the latter part of the section could not be invoked. The court restrictively interpreted the lack of physical contact with sexual organs to mean that there was no physical contact.

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What is a mandatory minimum sentence?

Section 8 of the POCSO Act carries a sentence of rigorous imprisonment of three to five years. However, imposing the minimum sentence is mandatory. Where a statute has prescribed a minimum sentence, courts do not have the discretion to pass lighter sentences irrespective of any specific circumstances that the case or the convict might present.

Minimum sentences have been prescribed for all sexual offences under the POCSO Act barring the offence of sexual harassment. In a 2001 ruling, the Supreme Court held that where the mandate of the law is clear and unambiguous, the court has no option but to pass the sentence upon conviction as provided under the statute. “The mitigating circumstances in a case, if established, would authorise the court to pass such sentence of imprisonment or fine which may be deemed to be reasonable but not less than the minimum prescribed under an enactment,” the court said in State of J&K v Vinay Nanda.

Why do some legislation prescribe a mandatory minimum sentence?

A mandatory sentence is prescribed to underline the seriousness of the offence, and is often claimed to act as a deterrent to crime. In 2013, criminal law reforms introduced in the aftermath of the 2012 Delhi gangrape prescribed mandatory minimum sentences for criminal use of force and outraging the modesty of a woman, among other charges.

Mandatory minimum sentences are also prescribed in some cases to remove the scope for arbitrariness by judges using their discretion. For example, the punishment for a crime under IPC Section 124A (Sedition) is “imprisonment for life, to which fine may be added, or…impris­onment which may extend to three years, to which fine may be added, or…fine”, which leaves room for vast discretion with judges.

What are the criticisms of mandatory sentencing?

Studies have shown that mandatory sentencing in laws lead to fewer convictions, because when judges perceive that the punishment for the offence is harsh, they might prefer to acquit the accused instead.

After conviction, a separate hearing is conducted to award sentence, in which aspects such as the accused being a first-time offender with potential for reformation or being the sole breadwinner of the family, or the accused’s age and social background, or the seriousness of the offence, etc., are considered. The absence of the opportunity to consider such factors, and instead prescribe a mandatory sentence, pushes judges in some cases towards acquitting the accused.

A 2016 report on the ‘Study on the Working of Special Courts under the POCSO Act in Delhi’ by the Centre for Child Law at the National Law School of India University, Bengaluru, has highlighted the reluctance of courts in convicting under sections that carry a mandatory minimum sentence.

The study noted: “Some within the legal fraternity were of the view that minimum sentences under the POCSO Act are very high. As an example, one respondent shared that the minimum punishment for sexual assault and aggravated sexual assault is high. “Should a 21 year-old be imprisoned for three years for forcibly kissing a girl? He will become a criminal in jail. No point in packing our jail with adolescents.” Another respondent was of the view that probation should be used in cases of statutory rape where the accused is between 18-22 years. One respondent also felt that the Act should provide sentencing discretion to judges.”

In his 2016 book Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, Mrinal Satish, professor of Law at NLSIU, argued that when mandatory sentencing regimes are put in place to remove judicial discretion, the discretion merely shifts within the system to the police, but is not removed.

So what is the way forward?

Legal experts have argued that mandatory sentences are counterproductive to the aim of reducing crime or acting as a deterrent. Instead of harsher punishment, they recommend judicial reform that makes the sentencing process more accountable and transparent. This would include holding transparent proceedings for sentencing, recording specific reasons for punishment in rulings, etc.

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