by Shelal Lodhi Rajput 30 January 2021
Introduction
A controversial and shocking judgement by the Nagpur bench of Bombay High Court opens a pandora box. Interpreting what constitutes a sexual assault with a minor under the Protection of Children from Sexual Offences Act, 2012, the Bombay HC has ruled that there must be a “skin-to-skin contact” with a sexual intent act mere groping is not sufficient.
A single-judge bench of Justice Pushpa Ganediwala heard an appeal against the conviction that the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat and pressed her breasts and partially stripped her. The question tabled before the court was regarding the sexual assault under Section 7 of the POSCO Act, on which the judgement was criticized.
After analyzing the material on record, the court observed in its judgement that :
“the act of pressing the breast of a child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of sexual assault.”
Although the court acquitted the accused under Section 7 of POSCO Act, he was convicted under Section 342 (wrongful confinement) and Section 354 (Outraging the modesty of a woman) of the Indian Penal Code. The rationale provided by the court for rejecting conviction under Section 7 of the POSCO Act was that there is no “physical contact,” i.e., skin to skin; hence the act could not be termed as “sexual assault.”
The Court further explained that the provision had to be interpreted, taking due account of the strict nature of the penalty awarded under Section 8 of the POCSO Act. It was also appropriate to include more stringent evidence and charges to substantiate the offence. According to the Prosecutor, the mere groping of a minor’s breast ‘through her clothing’ did not constitute an offence severe enough to fall under the ambit of Section 7 of the POSCO Act. It is more appropriate to term the offence under the minor nature of offence as provided in Section 354 of IPC instead of the POSCO Act.
There is no doubt that it is tough to comprehend and understand the rationale behind this judgement as explained by the Hon’ble court. It cast shadows on rights provided to the victim of sexual assault under POSCO and legislatures’ intent behind the Act. In the instant case, the judgement is an outcome of a very ‘strict & literal interpretation’ of the POSCO Act provision. Soon after the pronouncement of judgment, there is a series of comments, and condemnation of judgment comes from the child rights activists, and legal activists slammed the judgment of Bombay High Court.
Interpretation of Section 7: Stem of criticism
There is no doubt that in general prudence, the judgement cast some doubt as to how the interpretation of Section 7 done by the court in the present time is outdated as now the shift of judiciary is on constructive interpretation to provide justice and not the mere letters of the law. Still, the intent behind it needs to be focused on. To understand why the judgment is a topic of debate in the Indian realm with minors’ rights against the sexual offence, we need to understand the prerequisite of Section 7 of the POSCO Act.
The whole cruel irony of judgment stems from the interpretation of Section 7, which defines what constitutes sexual assault in POSCO cases. For better understanding, Section 7 can be segregated into three parts as it states that if a person with sexual intent,
(i) touches the vagina, penis or anus, or breast of the child,
(ii) makes the child touch the vagina, penis, anus, or breast of such person or any other person or,
(iii) does any other act which involves physical contact without penetration, all with sexual intent, then that person is said to have committed sexual assault.
In the instant judgment, the learned judge of Hon’ble Bombay HC is a strict interpretation by relying emphasis on the term “physical contact” is interpreted as “skin to skin” contact in nature of physical sense. The interpretation of court has shrunk and restricted the scope of sexual assaults.
Unprecedented Act of Bombay HC
The term “physical contact” still has not been defined as per India’s laws; there are different judgements pronounced by courts in which judges interpreted the term. For consideration and to analyse the instant case, in Ravi v. State (2018 SCC OnLine Del 11182), the Delhi High Court held that catching hold of the child survivor’s hand with sexual intent amounted to sexual assault. It is worthwhile to mention here the decision of Delhi High Court in Rakesh v. State (2018 SCC OnLine Del 11179) held that pressing the breast of the child survivor with sexual intent would amount to sexual assault as per Section 7. In contrast, the instant judgement completely defeats the purpose of Section 7 as the interpretation here bestows immense leeway on the perpetrator to go scot-free after committing such an atrocious act.
Further, in the instant case, the court erred in its judgment that the POCSO Act puts a higher burden on the defendant than on the prosecutor. Moreover, the Act may be a strict law, but it is also a protective and beneficial law. It must also be construed positively and interpreted in a way that respects children’s interests. Court also did not take into consideration Section 29 of the POSCO Act, as it envisaged that when a person is prosecuted under Section 7, it is presumed that the person has committed the offence reading along with Section 30 that presumes that the accused possessed a men’s rea (i.e., culpable state) during the commission of offence.
It is also important to note here that Section 30(2) provides that the accused must prove that he is innocent. Any presumptions are ‘beyond reasonable doubt’ rather than on a ‘preponderance of probabilities.’ In the instant case, even if we relate the above principle from the facts of the case, then it is still the burden of the accused to prove beyond a reasonable doubt that the skin-to-skin touch did not take place.
What court missed: Precedent of Apex Court.
Finally, to further strengthen how the court lacks some vital aspects while deciding the instant case, it is important to give a passing mention here. A constructive aspect of a precedent that can be construed here as in the case of Eera through Manjula Krippendorf vs. State (Govt. of NCT of Delhi) and Ors (2017) then CJI Dipak Mishra held that “While interpreting a social welfare one has to be guided by the ‘colour,’ ‘content’ and the context of statutes. The Judge had to release himself from the chains of strict linguistic interpretation and pave the path that serves the legislative intention’s soul. In that event, he should become a real creative constructionist Judge”.
The court erred on aforesaid reasons, which is ignored while deciding the instant case. The final and most important aspect is that the court made a strict interpretation of Section 7 of POSCO. Still, they creatively drawn an unreasonable distinction based on no rational or even coming from precedent. They created an artificial difference between skin-to skin and skin-to-clothes sexual assault.
It is important to mention the view of Rebecca John to know what the court exactly did; senior advocate Rebecca John called the verdict “quite bizarre,” and Senior Advocate Sanjay Parekh said that reasoning adopted by the court is ‘absurd.’ The list is long if I need to quote. Still, the above are some important reactions from the legal fraternity after the judgment passage.
Conclusion
Once again, kudos to the higher judiciary as it comes as a safeguard for people’s rights and upholds the constitution’s spirit. The judgement of Bombay HC stays by the Supreme court as Attorney General; KK Venugopal submitted that the judgement is ‘unprecedented’ and is ‘likely to set a bad precedent.’ There is a need to ponder some aspects that we get to see from the unprecedented and shocking judgement. Also, many activists blatantly called the judgement ‘Obnoxious, unacceptable, outrageous.’
POSCO Act, 2012 was enacted the safeguard children from sexual offences. Still, if the judiciary keeps interpreting the provisions of the Act like this, it will raise serious questions on which legislature and higher judiciary need to ponder upon it if in future this practice keeps continuing. The judiciary is expected to serve the soul of legislative intent and not chain itself to an artificial distinction.