POCSO, or The Protection of Children from Sexual Offences Act, 2012, was recently interpreted in a minor’s case by a Bombay High Court Judge. The judge pronounced that ‘skin-to-skin’ contact was necessary in order to establish offence under Section 7 of POCSO in the case hearing.
Section 7 of the POCSO Act
“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 which involves physical contact without penetration is said to commit sexual assault”.
In the Satish Ragde vs. State Of Maharashtra Criminal Appeal No. 161 of 2020, Justice Pushpa Ganediwala delivered the judgement on a sexual abuse trial that interpreted Section 7 of the POCSO ACT in a different manner, that came to limelight due to the verdict. It was surmised that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault as defined under the POCSO Act.
The verdict said that the facts of the case revealed the man in question “groped the child without removing her clothes”. Therefore, the offence would not be termed sexual assault, but in fact would constitute the offence of outraging a woman’s modesty under Section 354 of the Indian Penal Code.
Mainly, It held that mere groping could not fall under the definition of “sexual assault”.
According to the girl’s testimony and the prosecution, in December 2016, Satish had taken the girl to his house in Nagpur to give her something to eat. In the house, he had groped her and also attempted to remove her clothes. The high court has recorded her statement in the verdict.
The judgement said that since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354.
Section 354 entails minimum imprisonment for one year, sexual assault under the POCSO Act entails minimum imprisonment of three years.
Effects of the judgement in law and order groups and child’s right organisations
A bench comprising Chief Justice of India S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian have stayed the high court order after Attorney General K.K. Venugopal submitted that the judgement was “unprecedented” and “is likely to set a dangerous precedent”.
Activists and child rights bodies have also harshly criticised the Nagpur bench verdict. They have termed it “absolutely unacceptable, outrageous and obnoxious”. In a letter to the Maharashtra chief secretary, the chairperson of the National Commission for Protection of Child Rights had urged the state to review and challenge the high court verdict. The National Commission for Women (NCW) has recently moved the Supreme Court to challenge the Bombay High Court verdict.
Online e-papers quip, “The foremost duty of the judge, while interpreting any provision of a statute, is to give effect to the intent of the legislature as long as it is not ultra vires the constitutional provisions and contrary to the public good and principles of Natural Justice. The best way to gauge the mind of the legislature is by plain reading of the intent of the legislature which is apparent in the scheme of the Act. In order to determine the scheme of any Act, one need not look further than the Preamble of the Act itself”.
It further states that the Preamble of the Act provides for the Act “to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.”
It is obvious that “the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. The Preamble makes amply clear the intent behind the legislature and the general scheme of an Act.
The Preamble clearly stated the intent of the legislature while enacting the POCSO Act. “It was to provide an additional layer of protection to children in the domain of sexual offences which were falling in-between the gaps of the pre-existing criminal law governing sexual offences which was covered under the Indian Penal Code, 1860”.
The POCSO Act and Section 354 should not be used interchangeably in cases where the victim is a child unless deemed vital for the impact of the verdict on both parties involved. The intention of applying a law comes through only when the victim’s vulnerability is recognised and given due acknowledgment within the ambit of due punishment by law. Effects of the recent verdict have been rebuked and criticised since they could send confusing and worrying signals for judicial precedents on sexual abuse, especially in vulnerable groups and sections of society. The order had been stayed by the Supreme Court of India, and has been put back into appeal by NCW.
Recently, the NCW claimed that such a verdict “…will undermine the beneficial statutory safeguards prescribed under various legislations aimed at protecting the interests of women,” in its plea to the Supreme Court. The Supreme Court has taken notice and is taking up the appeal made by NCW.