Bombay High Court’s Interpretation of POCSO Act Fails Children

Acts that did not involve direct skin-to-skin contact could not be termed as sexual assault, the Bombay HC observed.

(Photo: Aroop Mishra/The Quint)

(This was first published on 27 January. It has been reposted from The Quint's archives after the Supreme Court set aside the Bombay HC verdict acquitting a man of POCSO charges in the skin-to-skin groping case.)

A shocking judgment was recently passed by the Nagpur Bench of the Bombay High Court, wherein it was held that in absence of "skin-to-skin" contact, while groping a 12-year-old child's ('prosecutrix') breasts, no offence of sexual assault would be made under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Supreme Court, on Wednesday, 27 January, stayed the acquittal order of the accused and has issued him a notice, seeking response in two weeks.

The single-judge bench, though convicting the man under Sections 342 (Wrongful Confinement) and 354 (Outraging the Modesty of a Woman) of the Indian Penal Code, went on to observe 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."

This was based on the reasoning that admittedly, the prosecution’s case did not propound the possibility that the appellant/accused had removed her top and pressed her breast, and as the act did not literally involve direct “physical contact”, i.e. skin-to-skin, it could not be termed as “sexual assault” under Section 7 of the POCSO Act.

The Court further elucidated that the provision had to be interpreted while giving due consideration to the stringent nature of the punishment awarded under Section 8 of the POCSO Act, and therefore, stricter proof and allegations were required to substantiate the offence. As per the Judge, merely groping the breast of a minor “over her clothes", did not constitute an offence grave enough to fall under Sections 7 and 8 of the POCSO Act, and would rather fall within the definition of the minor offence of outraging the modesty of a woman.

While it may be hard to comprehend the logic behind this highly problematic judgment, there is a need for a deeper analysis of the same as not only does the judgment prima facie undo the stringency of the legislation, it also invariably casts a shadow on the legitimacy as well as the gravity of sexual assault by trivialising it and reducing it to a mere "literal interpretation" of the provision.

Interpretation of Section 7 of POCSO Act

Section 7 of the POCSO Act defines sexual assault as "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".

The issue in the judgment stems from the interpretation of Section 7, which divides the provision into three parts and states that if a person, (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 judgment, it is evident that the Judge has derived her literal interpretation of the first two parts of the provision from the third part of the provision. By emphasising on "physical contact with sexual intent without penetration" and observing that this "physical contact" must encompass "skin-to-skin" contact, the Judge has shrunk the scope of sexual assault. The sole justification for having done so is that the provision is stringent in nature and requires stricter proof, as conviction under it entails three to five years of imprisonment as well as a fine.

While the terms "physical contact" or "skin-to-skin contact" are yet to be defined as per the laws in India, judgments of various Indian High Courts have highlighted how the slightest of actions, done with sexual intent, can lead to conviction under Section 7. For instance, in Ravi v. State (2018 SCC OnLine Del 11182), the Delhi High Court held that catching hold of the hand of the child survivor with sexual intent amounted to sexual assault.

In Rakesh v. State (2018 SCC OnLine Del 11179), the Delhi High Court, without delving into details as to whether the appellant had disrobed the child survivor or inserted his hand under her clothes, held that pressing the breast of the child survivor with sexual intent would amount to sexual assault as per Section 7 and dismissed the appeal.

Per contra, the instant judgment, by absurdly seeking for specificity regarding skin-to-skin contact, defeats the purpose of the provision and bestows immense leeway on the perpetrator to go scot-free after committing such an atrocious act.

Judgment Sets a Bad Precedent

Apart from being logic-defying, the judgment is also simply a bad precedent as the interpretation of "physical contact" can ultimately be used to dilute the provisions in other similarly placed statutes by extension of the ejusdem generis principle. In absence of any concrete definition of "physical contact", the "skin-to-skin" interpretation can be employed to dilute the gravity of sexual harassment as envisaged by Section 354A of the IPC, which also features the term "physical contact".

It has the potential to inflict a severe blow on the progress that has been made in feministic jurisprudence over the years, leading to the expansion of the ambit of these provisions in order to ensure the safety and security of women.

In addition to the objective of the Act, which is to protect children and keep their best interests in mind, the Model Guidelines issued under Section 39 of the POCSO Act by the Ministry of Women and Child Development categorically state that the Act recognises "almost every known form of sexual abuse against children as punishable". Therefore, to exclude groping of a child over his or her clothes would run counter to the intent of the legislation.

Further, in cases of child sexual abuse (CSA), the interpretation cannot and should not be narrowed to this extent, as there exists an unquestionable lack of consent on behalf of the minor child.

It is equally pertinent to take into account the psychological impact that is rendered as a result of CSA. Multiple studies have shown that CSA, which includes, inter alia, anything from "unwanted and inappropriate sexual solicitation" or "genital touching or fondling" to "penetration or attempted intercourse", not only produces an increased risk of personality disorders, but also mental disorders. It further has the ability to trigger negative psychological outcomes such as "poor self-esteem, lack of a sense of control or agency, difficulties with intimacy and continuing sexual difficulties".

CSA inherently being an act of perverse imposition of power and subsequent subjugation of a weaker entity, may possibly lead to a negative alteration of a child’s cognitive and emotional development. In wake of this, the burden on the POCSO Act to stipulate provisions that are stringent and do not require a higher threshold for substantiation is greater.

The learned single judge has unfortunately failed to consider these aspects of the POCSO Act before passing her judgment and has paved the road for future courts to take inspiration from this interpretation.

Countermeasures for the Long Run

The inane interpretation in this judgment is reminiscent of yet another order which was rendered by the Madhya Pradesh High Court in 2020 in a case of sexual harassment, wherein while granting bail to the accused, the court imposed a strange condition directing the applicant, along with his wife, to visit the complainant's house with a rakhi on the date and time specified in the order, along with a box of sweets.

The order was highly criticised by the legal fraternity and nine women lawyers eventually moved the Supreme Court, praying for a stay against the imposed bail condition. 

During the course of the matter, the Attorney-General was requested to suggest remedial steps and these steps included declaration of such remarks/observations as unacceptable and not conforming to judicial standards. Indeed, an unequivocal indictment of the same would serve as a deterrence to others from passing judgments that completely ignore the psycho-social underpinnings of these statutes.

A greater emphasis was also laid on the need for gender sensitisation of both the Bar and the Bench while approaching such matters. The Attorney-General had called for gender sensitisation of judges in high courts and trial courts, and had suggested for State Judicial Academies to regularly hold lectures on the same.

In order to deal with matters pertaining to sexual harassment, it becomes critical for the judges to unlearn their inherent gender biases and entrenched patriarchy, which, more often than not, is a product of their environment and has the tendency to reflect in the judgments they deliver; this is well exemplified by the fact that the judge in the instant case was a woman herself.

Apart from the above, there is an urgent need to increase representation of women in the higher echelons of the judiciary as well as other public institutions. By bringing into the fold more women judges, the ultimate beneficiary is the public itself, as lived experiences of these judges can aid in delivering more well-rounded judgments, and thereby, prevent such ill-conceived decisions.

The gender ratio in the judiciary as well as the legal fraternity is terribly skewed at the present moment, and thus requires immediate rectification for the attainment of rule of law that is fair and just.

It cannot be stressed enough that more than 99 percent of the cases of sexual violence go unreported in India – as per the National Family Health Survey conducted in 2015-16; of those that do get reported, the conviction rate is abysmally low.

If we, as a society, wish to bring about a change in the perception of the narrative which constantly blames the victim, be it a woman or a child, and ends up trivialising their complaints, we must start working from the most primary level.

Gender sensitisation is not a one-day affair that can transform the patriarchal mindset that has been ingrained in people throughout their lives. It requires a collective effort on the part of society right from the moment a person is born. Rest assured, if this effort materialises, then the transformation we seek can truly be achieved.

(Radhika Roy is a lawyer and a legal journalist based out of New Delhi and Harshita Singhal is a practising advocate. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them. This was first published on LiveLaw and has been republished with permission.)