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Monday, March 01, 2021

The wrong precedent

Bombay High Court ruling on child sexual assault is disquieting. Supreme Court does well to order a stay.

By: Editorial |
Updated: January 28, 2021 9:11:15 am
Mamata Banerjee, Nandigram seat, West Bengal assembly election, BJP, TMC, Indian express newsShanta was more than a doctor, researcher and administrator — she saw herself as a healer.

The Supreme Court is right to stay a decision of the Bombay High Court to acquit a man of sexual assault on the grounds that his underage victim was clothed when he groped her breasts. The High Court, while setting aside the conviction of the accused by a lower court under Section 8 of Protection of Children from Sexual Offences Act, argued that since there was no direct “skin-to-skin” contact during the assault on the 12-year-old girl, the charge of sexual assault could not be upheld. The HC judgment is disquieting because it introduces a new condition to satisfy a charge of sexual assault, which is not there in POCSO. This is bound to set a precedent in other cases, when the condition of the child’s clothing might be used against her.

The Bombay HC’s observation that “stricter proof and serious allegations” were needed given that a sexual assault conviction mandates a minimum of three years punishment, however, frames the problem of diminishing returns of tougher laws on sexual violence. The POCSO was enacted in 2012, after years of mobilisation by child rights organisations. While the number of cases filed under the law continues to rise, the conviction rates remain low. There are several reasons for this, including a police and legal system that lacks the training to deal with child victims with empathy, the number of cases in which the offenders are related to the child, and the lack of infrastructure and personnel to deal with the cases. Studies, such as those carried out in several states by the National Law School of India University, also flag the consequences of the mandatory minimum sentence. Under POCSO, judges do not have the discretion to pronounce sentences lower than that laid down by the law. Hence, in cases when they feel the sentence is disproportionate to the crime, they might be reluctant to find the accused guilty. This is in line with what experts have been saying for a while: Tougher punishments, such as the death penalty in cases of rape of children under 12, or harsher sentencing might be easy to sell politically but they often end up working against the aims of justice. The focus, instead, should be on fixing the process that often is the punishment — and the cultural narratives that enable sexual violence against children.

The SC stay is a step in the right direction in re-evaluating an insensitive judgment that is inimical to the intent of POCSO: The protection of children.

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