Bombay HC's POCSO Ruling and the Mountain of Problems it Unearths
By: Sashwata Saha
The Nagpur Bench of the Bombay High Court’s January 25 judgement, which held that groping a minor without “skin to skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO), has evoked well deserved nationwide criticism. While the Supreme Court went on to stay the order within a few days, the interpretation of the offence and the Act by the High Court sets problematic precedence.
In this case, the perpetrator molested the 12-year-old victim’s breast and attempted to remove her outer clothing 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 and Sections 354 (sexual assault), 363 (kidnapping), and 342 (wrongful confinement) of the Indian Penal Code.
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….” However, Justice Pushpa Ganediwala -- the additonal judge presiding over the case -- made a marked departure from the obvious interpretation of the clause that has been applied over the nine years since it's inception, 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. Instead, she chose to apply Section 354 of the IPC, a colonial era provision that punishes “the use of criminal force to any woman, intending to outrage her modesty” and carries a much more lenient punishment.
This interpretation has even more worrying 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, Justice Gandeiwala's interpretation could 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. Not to mention that the victim was born on May 25, 2005, and at the time of the offence in December 2016, she was 11 years old -- a gross oversight on the trial court's part. This means that the assault was 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.
The high court's interpretation was made with the logic: that the punishment has to be proportional to the severity of the crime.
This begs the question, does the Bombay High Court not consider the molestation of a pre-teen girl to grave enough to warrant a five-year term?
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