Sexual Assault under POCSO Act
Author- Shreya Sharma
Designation- Student, Delhi Metropolitan Education, Noida
Contact - 742*******
If a person slaps another while wearing gloves will it be considered as a slap?
Yes, you read it right. You might be thinking what type of obnoxious and stupid question is this. But now after the judgement passed by the Bombay High Court similar types of questions are being raised in the minds of people all over the country.
On 27th January 2021, The Supreme Court stayed an order passed by Nagpur Bench of the Bombay High Court where the court had held on 19th January 2021 that the groping of a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
The Sessions Court convicted a 36-year-old man who had taken a 12-year-old minor girl to his house on semblance of giving her a guava to eat, where instead he pressed the breast of that 12-year-old minor girl and attempted to remove her Salwar. The Man was sentenced with a three-year imprisonment under section 8 of the POCSO Act by the Sessions Court. However, the single bench of The Bombay High Court headed by Justice Puspha Ganediwala reversed the order of the Sessions Court by acquitting the 36-year-old man by saying that mere groping would not come under the ambit of section 7 of POCSO Act and for convicting a person under this section of the act, considering the rigorous nature of the punishment more proof and serious allegations are needed. The High Court of Bombay then instead charged the accused under the ambit of section 354 of the Indian Penal Code. Section 354 talks about “assault or criminal force to woman with intent to outrage her modesty” where the minimum sentence is of one year imprisonment. While on the other hand imprisonment under Section 8 of the POCSO Act demands a stringent punishment of minimum three years.
Section 7 of the POCSO Act states as under,
“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 court further added that exact information as to whether the top of the minor girl was removed or not and whether the man put his hand inside the top of the girl is missing therefore the said act would not fall in the category of Sexual assault in section 7 of POCSO Act. The court also held in their judgement that “physical contact” here means a “Skin to Skin” contact. KK Venugopal, The Attorney General of India said that the judgement is likely to set a dangerous precedent and was asked by the Chief Justice of India to file a petition against the order. The Supreme Court of India has also given a notice to the accused and asked him to file a reply within two weeks.
The judgement given by the High Court of Bombay created an outrage in the country. The National Commission for Protection of Child Rights had asked the Government of Maharashtra to file a petition against the order of the Bombay High Court and also urged to review the judgement. The judgement is attracting more criticism because the judgment was passed by a lady judge. The basic aim of the POCSO Act is to safeguard the interest of the children and protecting them from any kind of serious offences committed against them. The interpretation made by the court here is against the basic aim of the POCSO Act. But this is not the first time such repressive interpretation of the section has been made especially in the POCSO cases. In State v. Bijender in the year 2014, the convict was accused by a seven-year-old minor who had testified against him that, he had taken her to the washroom without her consent, slapped her and also tore her jeans. Instead of charging the accused under POCSO Act, the court charged him under section 354 of the Indian Penal Code. The court added that even though the person had wrong intention, tearing of jeans cannot be constituted under sexual assault. The court further interpreted that there was an absence of touch to the sexual organs which constituted that there was no physical touch.
Judgements like these make us question whether touching someone without their consent is sexual assault or not? Why was the POCSO Act even enforced when there is no difference between a 12-year-old girl and a 21-year-old woman because the basic aim of protecting children from sexual offences is being violated in the judgement. This gives out a message to the society that touching someone without skin-to-skin contact is wrong but not a serious offence until there is a skin-to-skin contact. According to the author, this particular judgement is very obnoxious, unpleasant and unacceptable. This judgement is likely to encourage sexual harassment as the offenders will think that mere groping will not account to sexual assault. Society has always taught women that this is normal and incidents like these keep happening and they should be not making such a big scene out of it. Instead, they should dress properly to avoid such incidents. But for how long will they keep their voices down and for how long the society will keep on blaming girls and women for the way they dress?