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Thursday, February 25, 2021

Bombay HC’s interpretation of POCSO is problematic at several levels

While the Supreme Court has stayed the order after it was argued that the judgment was “likely to set a dangerous precedent”, it remains to be seen how the apex court responds to this unprecedented interpretation of the POCSO Act.

Written by Shruthi Ramakrishnan |
Updated: January 31, 2021 9:41:04 am
This oversight, coupled with the case being delayed for nearly four years, and the tactless interpretation of the HC seriously impairs the effective implementation of the POCSO Act.

The judgment of the Nagpur Bench of the Bombay High Court, which held that groping “without skin-to-skin contact” does not amount to “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act, has evoked immense criticism. While the Supreme Court has now stayed the controversial order, the interpretation of the offence and the Act by the High Court is problematic at several levels.

In the case, the perpetrator pressed the 12-year-old victim’s breast and attempted to remove her salwar, at which point the child screamed and was swiftly rescued by her mother. The accused was convicted by the trial court under Section 8 of the POCSO Act, read with IPC Sections 354 (sexual assault and criminal force with intention to outrage the modesty of a woman), 363 (kidnapping), and 342 (wrongful confinement).

Section 7 of the POCSO Act defines sexual assault of a child as “whoever, with sexual intent touches the vagina, penis, anus, or breast of such person….” In a marked departure from the most obvious interpretation of the clause that has been applied in the last nine years, the single judge HC bench stated, “as per the definition of sexual assault, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence”, with “physical contact” requiring “skin-to-skin contact” and not just any contact.

The judge did not interpret the offence to constitute an attempt to commit sexual assault under the POCSO Act, and instead chose to apply Section 354 of the IPC, a colonial provision that punishes “assaults” or use of “criminal force to any woman, intending to outrage… her modesty”, which carries a significantly lenient punishment.

The high court’s bizarre interpretation has even more absurd implications for the other provisions of the POCSO Act. For instance, Section 3 defines ‘penetrative sexual assault’ as being committed whenever there is a penetration of any object, penis, or hand to any part of the vagina, anus, mouth, or urethra of the child; or if the accused “applies his/her mouth to the private parts of the child”. This section, like Section 7 does not explicitly state ‘direct contact’. Then, the Bombay HC’s ‘logic’ would mean that if a perpetrator uses a condom while penetrating the child, it would not constitute an offence since there was no ‘direct contact’.

Also, sexual assault under the POCSO Act, 2012, carries a minimum of three years imprisonment which may extend to five years, in addition to a fine. In comparison, Section 354 of the IPC carries only one year of minimum imprisonment. If the impetus for such a judgment was to spare the perpetrator from the stringent punishment of the POCSO Act, this reluctance warrants close inquiry.

A look at the trial court’s judgment also reveals another gross oversight. The birth certificate of the child accepted by the trial court shows she was born on May 25, 2005, and at the time of the offence (December 14, 2016), she was 11 years old. So, in fact, it’s not sexual assault under Section 7, but aggravated sexual assault under Section 9 of the POCSO Act which carries a minimum of five years imprisonment. In most POCSO cases, the defence aggressively questions the victim’s age to remove the application of the Act which only applies to those below the age of 18. In the recent case, the defence did not raise the issue as it would only sabotage their case, and neither of the courts undertook the inquiry.

This oversight, coupled with the case being delayed for nearly four years, and the tactless interpretation of the HC seriously impairs the effective implementation of the POCSO Act. While the Supreme Court has stayed the order after it was argued that the judgment was “likely to set a dangerous precedent”, it remains to be seen how the apex court responds to this unprecedented interpretation of the POCSO Act.

Shruthi Ramakrishnan is a legal researcher working on child rights.

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