The significance of Supreme Court’s recent POCSO decision–Swagata Raha writes: INDIAN EXPRESS

Clipped from: https://indianexpress.com/article/opinion/columns/the-significance-of-supreme-courts-recent-pocso-decision/

Swagata Raha writes: In overturning two Bombay HC judgments, the court has rejected a narrow interpretation of sexual assault against children.

Aggravated penetrative sexual assault, which includes assault of a child below 12 years, is punishable with a minimum of five years imprisonment, which may extend to seven years, and a fine.

In Attorney General for India v. Satish, the Supreme Court last week considered appeals against two judgments of the Bombay High Court involving an interpretation of “sexual assault” under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Under Section 7, touching of the vagina, penis, anus or breast of a child or making the child touch these parts of any person with sexual intent or doing “any other act with sexual intent which involves physical contact without penetration” constitutes sexual assault. It is punishable with a minimum of three years imprisonment, which may extend to five years, and a fine. Aggravated penetrative sexual assault, which includes assault of a child below 12 years, is punishable with a minimum of five years imprisonment, which may extend to seven years, and a fine.

In Satish’s case, the accused, a resident in the same neighbourhood as the 12-year-old victim, had taken her to his home under the pretext of giving her a guava, pressed her breasts, tried to remove her salwar, and locked her in his home. The victim was later found by her mother who had gone in search of her and was told by a neighbour that the accused had taken her to his home. The accused denied taking the girl, but on hearing shouts, the victim’s mother went to his home, and found her daughter locked inside a room, crying. While the special court had convicted the accused for sexual assault, the Nagpur Bench of the Bombay High Court expressed that stringent punishment for sexual assault warranted stricter proof. According to the High Court, the conviction could not be upheld because there was “no direct physical contact, i.e. skin-to-skin contact, with sexual intent without penetration.” Satish was thus acquitted for sexual assault and convicted instead for outraging a woman’s modesty and wrongful confinement.

In the second case (State of Maharashtra v. Libnus), the Bombay High Court had held that the appellant’s acts of holding a five-year-old girl’s hand, moving her frock upwards with one hand, lowering her pants with another, and unzipping his pants to expose his penis did not fall within the ambit of “any other act” under Section 7. The accused was acquitted for aggravated sexual assault, and instead convicted for the lesser offences of sexual harassment under both the POCSO Act and the IPC.https://images.indianexpress.com/2020/08/1×1.png

In their respective opinions delivered last week, both Justice Bela Trivedi and Justice S Ravindra Bhat considered the legislative intent of enforcing children’s right to protection from sexual abuse and exploitation and rejected the High Court’s restrictive interpretation of sexual assault. With a view to ensure that the objectives of the POCSO Act are advanced and not abused, Justice Trivedi eschewed a narrow interpretation of the terms “touch” and “physical contact”. Observing that these terms have been used interchangeably, Justice Trivedi held that restricting touch and physical contact to only “skin-to-skin contact” would be contrary to the legislative intent and also frustrate the objectives of the POCSO Act. It would lead to absurd situations where touching of children with materials such as gloves, condoms, or cloth would not constitute sexual assault. While agreeing with the principle of strict interpretation of penal statutes, Justice Trivedi held that the rule which required courts to give the accused the benefit in case of statutory ambiguity would not arise as there was no ambiguity in Section 7.

Justice Bhat, on the other hand, was of the view that the term “physical contact” was wider than “touch” and would include direct and indirect contact by the offender, as well as no contact by the offender as “any other act” was wide enough to include victims being coerced to touch themselves. To arrive at this interpretation, Justice Bhat considered the legislative landscape before the POCSO Act came into existence, as well as the mischief it sought to suppress and observed that “[t]he emphasis of Section 7 is to address the felt social need of outlawing behaviour driven by sexual intent.” Justice Bhat also observed that the High Court’s reasoning “insensitively trivialises — indeed legitimises — an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

Research studies based on judgments of special courts have revealed similar interpretations wherein acts of taking children by force and tearing their clothes have been considered as falling outside the ambit of “physical contact” under Section 7. The Supreme Court’s decision is thus significant as it has set right the interpretation of Section 7 and will serve as a precedent for the scores of cases before special courts involving physical contact with sexual intent. The High Court’s concern about the high minimum mandatory sentences noticed by the Supreme Court, however, requires further consideration from a policy perspective. While in the cases at hand it led to an absurd and narrow interpretation of the law, the proportionality of sentences and the lack of judicial discretion in cases of sexual assault have been flagged as areas of concern in research studies on POCSO. There is a definite need for research on the impact of high minimum mandatory sentences on judicial appreciation of evidence and outcomes, as well as the participation of victims and their families during trial.

Raha heads the research team at Enfold Proactive Health Trust, Bengaluru. This article has benefited from inputs by Sreedevi Nair, legal researcher at Enfold.

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