"Negates decades of work in law reform, sends wrong message to subordinate courts:" Lawyers on Bombay High Court POCSO judgment

In what may be seen as cruel irony, days before National Girl Child Day, the Nagpur Bench of the Bombay High Court held that the act of pressing the breast of a 12-year-old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences (POCSO) Act.

The High Court instead held that the same would fall qualify as 'outraging the modesty of a woman' under Section 354 of the Indian Penal Code (IPC), which carries a lesser prison sentence.

The judgment, which has sparked a furore among members of the legal fraternity and civil society alike, stated:

"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”

At this juncture, it becomes pertinent to examine Section 7 of the POCSO Act, which deals with sexual assault of a minor. It reads as follows:

"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."

It is clear from the text of Section 7 that "skin to skin" contact is not necessary for an act to qualify as sexual assault.

Though the Supreme Court has now corrected this course by staying the judgment of Nagpur Bench of the Bombay High Court, it is worthwhile to see why such judgments get passed in the first place.

Bar & Bench spoke to a few lawyers to get their thoughts on this question, and the impact such a judgment could have.

Advocate Chitranshul Sinha said that this interpretation of the Court was not based on any precedent or analysis of the law.

"This interpretation isn't based on any precedent or analysis of the law. POCSO is very clear that the physical nature of the act is sufficient is attract an offence under its provisions but the Court here takes an ultra-technical interpretation without explaining the legal basis for the same. There was enough evidence to find the accused guilty under POCSO."

Speaking on similar lines, advocate Maitreyi Krishnan opined that the "skin to skin" requirement is not an ingredient of Section 7.

"If you look at Section 7 of the POCSO Act, there is no mention of skin-to-skin contact. What it actually says is that, with sexual intent, if you touch breast or other parts, it is sexual assault. The Bombay High Court has brought a new layer. POCSO was enacted with the intent of covering all forms of sexual assault. If you say that there has to be skin to skin contact, if someone touches somebody’s vagina without actually removing underwear, is there no sexual assault? Given the facts of the particular case, there is a clear case of sexual assault."

Senior Advocate Jayna Kothari pointed out that sexual assault under the POCSO Act was given a wider definition in order to include acts apart from penetration.

"In this case, he (the assaulter) did press the breasts of the child. So what if he didn’t take off her top? Are you going to say that the child felt any less assaulted? In fact, a wider definition was given for sexual assault under POCSO because you want to cover acts apart from penetration. I don’t think that this section means that only skin to skin contact is punishable."

She also said that the POCSO Act must be interpreted stringently as against offenders and this is a protective and beneficial legislation. Therefore, it must be interpreted in tandem with its objective, i.e., protection of children from sexual offences.

With a restrictive interpretation, so many acts that are covered under sexual assault would not be covered under the POCSO Act. That is not the intention of the Act, she added.

On this aspect, Senior Advocate Rebecca John stated that interpreting the POCSO Act in a narrow, regressive manner would essentially negate decades of work that put together a law seeking to protect children from sexual violence . She further commented that judgements such as these send a wrong message to subordinate courts in interpreting the Act .

"A very wrong signal is sent to the subordinate courts, who would no longer take cases of sexual assault seriously ."

John also underscored the importance of judges being respectful towards survivors of sexual offences and how the language in judgments plays a critical role in understanding the offense.

"Sometimes, courts use painfully regressive language in these matters that betrays a lack of understanding of the offence itself. If a court is unconvinced about the credibility of the prosecution’s case, then it must not convict. However, even while doing so, it must be sensitive in the usage of language, so that it does not undermine the seriousness of the offence itself."

This is not the first time a court has taken an insensitive view in a case related to sexual violence.

Last year, the Karnataka High Court, while granting anticipatory bail to a rape accused, strangely observed that it was "unbecoming" of an alleged rape victim to have fallen asleep after being "ravished".

To its credit, the Court subsequently expunged these comments from the record at the request of the public prosecutor in the case.

In 2020, the Madhya Pradesh High Court had directed a man accused of having outraged the modesty of a woman to present himself before the complainant so that she may tie a "rakhi" on his wrist as a condition for his release on bail.

In November last year, the Madras High Court had granted bail to a man accused under Section 6 of the POCSO Act after he undertook to marry the 17-year-old pregnant victim when she turns 18 years of age.

Taking these instances into account, the Attorney General for India KK Venugopal had submitted before the Supreme Court that orders by High Courts trivializing sexual offences are "nothing but drama" and "must be condemned."

AG Venugopal called for gender sensitization training for judges even proposing "Gender Sensitization" as a subject for recruitment exams and also as a subject for training at the National and State Judicial Academy.

Lawyers too echoed this sentiment, suggesting that judges must be trained in interpreting legislation against sexual violence and must be sensitized when it comes to sexual crimes.

"Judges, prosecutors do need training on these issues. Our thinking of sexual violence was just penetrative rape earlier. That has undergone a huge change. We don’t use the term rape anymore, but sexual assault, because it is a wider term. But often, courts take it very lightly. Courts do need exposure to understand the impact of sexual violence on victims especially minors, and why these laws were enacted, so that they can apply the sections in the way that they were intended, for the protection of victims, Kothari opined.

Sinha also shared the same views.

"I feel it is very important to sensitise judges at all levels of the judiciary on how to handle cases involving violence and sexual crimes against women and children. POCSO is a relatively new legislation and judges hearing cases under the law should receive special training to handle such cases."

Krishnan said that apart from taking such a narrow approach in sexual crimes, imposing conditions of marriage or direction to tie a rakhi on the predator are visible signs that patriarchy exists in all institutions.