AMBIGUITY OF THE NEW HIGH COURT JUDGEMENT: Section 354 versus POCSO provisions
Source: POSCO (Reddy and Reddy)
With the recent tumultuous judgement. The Bombay High Court has said that groping a minor without "skin to skin contact" can not be identified as sexual harassment as specified under the Protection of Children from Sexual Offences (POCSO) Act. The Bombay High Court selected the National Girl Child Day in a cruel irony to have a ridiculous interpretation of the Sexual Offences Protection of Children Act, 2012 (hereinafter referred to as 'POCSO'). Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgement passed on January 19, the detailed copy of which was made available now, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. The Bombay High Court was of the opinion that, given the stringent nature of the sentence for the crime, stricter facts and serious charges were required. It also noted that the sentence for an offence should be commensurate with the severity of the offense.
In the relevant case in point, the girl was persuaded by the man to visit her house under the pretext of giving her a guava-the judgment delivered in this case not only goes against the mandate of the POCSO act that aims to protect the child's best interest and protection from all kinds of sexual crimes, but also goes against the core concepts of criminal jurisprudence. Although the court found that the accused had simply pressed the girl's breast, it resorted to a literal reading of the provision to maintain that because there was no skin-to-skin contact with the sexual harassment crime under section 7, it was not provided that it is of great significance here to note that the section does not clarify if touching should be physical in the context or in the sense. For anyone to primarily focus on this will be hard pressed to imagine that this scenario was anything less than a sexual assault individuals who value their bodily integrity would come into agreement that this assault was sexual in nature, independent of the fact whether it involved the barrier of clothes by the hands of the victim and the altar or not but to imagine that this entire issue was diminished and trivialized by the court makes the individuals question the authority at great limits
It is troubling in many ways to consider that the victim who is a child in this case had to see her experience undermined and trivialized by the same court and statute that is supposed to provide her with the greatest amount of protection makes this judgement problematic. The definition of Sexual Assault in the Section 7 of the POCSO Act is : "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." Therefore the primary conditions required to categorize the situation as an assault are - Firstly, there must be physical contact without penetration. Physical contact is when a person touches the vagina, penis, anus or breast of a child or makes the child touch the vagina, penis, anus or breast. Secondly, the physical contact must be made with sexual intent. Section 354 of the IPC seeks to punish anybody who “assaults or uses criminal force to any woman, with the intention to outrage her modesty”. However this judgement outdoes itself on these mentioned grounds making women more vulnerable to sexual assaults. This decision now sets the blame on the survivor and the defense to prove the accused's guilt. There may be inconsistencies in the minor's assertion and certain vital facts may be missed. On behalf of the minor, the accused will profit from such a lapse, which is not right.
The child rights activists have highlighted this judgement to be outrageous and obnoxious. They have decided to challenge this judgement. Dhananjay Tingal, executive director of child rights NGO Bachpan Bachao Andolan mentioned that the legal team of the NGO will look into the data and will subsequently appeal to the supreme court. Activist Kavita Krishnan, secretary of All India Progressive Women's Association, called it an 'outrageous judgement' that goes against the law. Activists are of the view that it is unfortunate for a woman to have agreed upon this judgement. Rekha Sharma, President of the National Commission for Women (NCW), said that this decision would not only have a cascading impact on separate laws pertaining to women's protection and security in general, but also expose all women to harassment. National Commission for Protection of Child Rights (NCPCR) has written to the Maharashtra government asking it to file an urgent appeal against the verdict.
The court highlighted Reliance on the principle of proportionality and observed that the punishment for an offence should be proportional to the seriousness of the crime thereby highlighting that the offence in question was not serious enough. Nundy added that such judgments send out the “wrong message to police and criminals and trial court judgments and contribute to impunity”. “Now, people who sexually assault little boys in this way could go scot-free, as Section 354 of the IPC only applies to women,” she said. The ‘skin-to-skin’ contact rule would also mean a rapist who rapes a child with a condom could argue that he never sexually assaulted the victim, she added. The Mumbai High Court has firmly set a wrong precedent in this type of narrow interpretation of sexual harassment, challenging the fundamental nature of the POCSO Act and even diluting the mandates of other laws present for the safety and protection of women and girls.
- Srijita Chakrabarti