HOW THE BOMBAY HIGH COURT’S JUDGEMENT IS “CLOTHED” WITH INJUSTICE
Ananya Manjunath, 2nd Year, BMS College of Law, Bengaluru
The Protection of Children from Sexual Offences Act (POCSO), 2012 was introduced to act as a blanket law to protect children from the heinous offences of sexual assault, sexual harassment and pornography while keeping the best interests of the child as priority throughout the legal remedy process, but the recent judgement of the Bombay High Court has proved otherwise by delivering a strikingly controversial verdict in the case of Satish v. State of Maharashtra in January, 2021.
The flabbergasting statement that “physical contact” under Section 7 of the POCSO Act is to be understood as “skin to skin contact” came as a part of the judgement delivered by Justice Pushpa. V. Ganediwala, a sitting judge of the Nagpur Bench of the Bombay HC, where the 39 year old male accused/appellant approached the High Court challenging the judgement of the Sessions Judge where he was convicted under sections 354 (outraging a woman’s modesty), 363 (kidnapping) and 342 (wrongful restraint) of the Indian Penal Code and Section 8 of the POCSO Act.
The accused was convicted by the Special Court based on the facts that, he lured the girl to his house on the pretext of giving her a guava and touched her breast and attempted to remove her salwar, at which point of time the girl’s mother based upon the information received by a neighbour, reached the spot and rescued her daughter, who the man had locked inside the room and immediately filed an FIR in the police station.
The point of focus in the current judgement was whether the act of touching the breasts and attempt to remove the salwar of the child would qualify as sexual assault under Section 7 of the POCSO Act which 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.
and attract punishment for the same according to Section 8 of the POCSO Act which says;
Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
In her judgement, the honourable judge noted that the essential ingredients such as (i) sexual intent (ii) physical contact or touching of the breasts did occur but resorted to interpret “physical contact” as direct physical contact i.e., skin to skin contact” and further continued to acquit the man of the offence stating that the girl had clothes on when he touched her and therefore no “physical contact”, but convicted him under Section 354 of the IPC (outraging modesty of a woman). The judge also stated considering the stringent nature of the punishment (minimum 3 years of prison plus fine), it requires “stricter proof” and “serious allegations”.
The judgement seems out rightly problematic in the first read and even more baffling and perplexing as you read further and put some more thought into it. Firstly, any common man hearing the incident would affirm the occurrence of sexual assault, clothes on or clothes off, a 39 year old man touching a 12 year old child’s breast is still ghastly and must qualify as sexual assault. Nowhere does the statute mention clothes acting as a barrier or lessening the intensity of the offence, by the same reasoning, if the man touched the child with the clothes off but wore a glove on his hand, he would still be acquitted considering how there was no “skin to skin” contact.
Secondly, the court convicted the accused under Section 354 of the IPC which reads;
Assault or criminal force to woman with intent to outrage her modesty. –
Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
And granted him the minimum punishment of 1 year while stating, “It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime”. This not only reduces the grimness of the act in the present case by considering it not serious enough to be called sexual assault but also the granting of minimum punishment sends out the message that it was a minor crime, and in no circumstance should the violation of a child or rather even an adult’s physical boundaries be considered minor or insignificant.
Thirdly, claiming there wasn’t enough or substantial proof or serious allegations would be shutting one’s eye to Section 29 of the POCSO Act which reads;
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
This part of the statute calls for presumption of guilt of the accused. Which does not seem to be what has occurred in the present case, instead the judge seems to have given the benefit of doubt to the accused even with the strongest proof – the victim’s word being present.
Fourthly, prosecuting the accused under the IPC instead of the POCSO Act defeats the entire purpose for which the act was introduced. The victim was a child when the crime occurred and the perpetrator should be subjected to laws made for the sole purpose of protection of children from crimes of this manner.
Fifthly, this judgement being delivered by the Bombay High Court will in the future definitely be used as precedent and will be binding on the lower courts such as the sessions courts, resulting in grave injustice being meted out to so many other victims. This setting of wrong precedent will have wide scale repercussions on so many other levels.
Finally, the paramount ramification of this judgement would be the erroneous message that it would send out to the young children and even adults who have had to deal with similar episodes that would have left scarring impressions upon them, this judgement trivializes the painful experiences of these people. This attenuated interpretation of “sexual assault” leaves no hope of justice being served in the future and only diminishes the faith people have kept in the justice system of our country. The reasoning in this judgement is downright unacceptable and defeats the whole purpose of special laws being enacted.
The National Commission for Women has decided to challenge this judgement in the Supreme Court. The final drops of oil that will keep the flame of hope of justice alight, now lies with the apex court who I, wholeheartedly hope overturns the judgement and performs their role rightfully in the protection of a child’s rights.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)