Members from the civil rights society have slammed a Bombay High Court verdict wherein a judge acquitted an offender of charges under the stringent Protection of Children from Sexual Offences (POCSO) Act, 2012, and charged him under the comparatively lenient provisions of the Indian Penal Code (IPC), 1860. The alleged misinterpretation of what is a sexual assault against a minor has caused great consternation among many.
On January 19, Justice Pushpa Ganediwala at the Nagpur bench of the Bombay High Court held that groping a minor's breast without disrobing her would amount to molestation under the IPC as opposed to sexual assault as envisioned under the POCSO act.
Justice Ganediwala's observation came as she modified the order of a session's court holding the 34-year-old man guilty for sexually assaulting a minor by groping her over her salwar. Details of the victim as well as the perpetrator are being held in accordance with rules and laws concerning reporting of sexual assault on minors.
Two points come out from discussions on this particular judgment. One – an allegedly bad precedent in laying down the test of what is physical contact; and second – the dangers of a society demanding harsh punitive measures.
"This judgment is bad in law and sends a very wrong message to the society," Dr Kumar Askand Pandey, Associate Professor of Law at Dr Ram Manohar Lohiya-National Law University said. "The legislature is about intent. Convicting the offender would have sent the message that one cannot get away. The judge should have convicted the offender under section 7 and 8 of the POCSO as well as under section 354 of the IPC. According to provisions of the law, she could award him the one-year sentence under the IPC and not the three years as applicable under POCSO," he added.
What is the case about?
Rights activists have slammed the court's interpretation of the words "physical contact" in the context of sexual assault to mean "direct physical contact i.e. skin-to-skin contact with sexual intent without penetration".
"The act of pressing of the breast of the 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'," the high court had observed. "The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty," the high court had said.
Misinterpretation of sexual assault lays bad precedent
Child rights lawyer Ananth Asthana opined that this case has laid down the test for what is physical contact which could prove to be problematic. Judges may take their cues and adjudicate future cases, whereas offenders can rely on this to plan their defence.
National Commission for Women (NCW) has tweeted its indication to challenge the high court verdict. This judgement will not only have a cascading effect on various provisions involving safety and security of women in general but also put all the women under ridicule and has trivialised the legal provisions provided by the legislature for the safety and security of women," Rekha Sharma, NCW chairperson tweeted.
"Physical contact does not necessarily mean skin-to-skin," Pandey said. A law professor, Pandey also heads the UNICEF-sponsored mega-project on strengthening Child Protection System in Uttar Pradesh. "Insistence on skin-to-skin contact is problematic and regressive," Pandey added. "This judgment will help a lot of child rights abusers in their defence now," he added. "American realist school is all about viewing criminal law from a criminal's perspective. Today in Maharashtra, section 7 (of POCSO Act) stands diluted and this must be giving relief to a lot of offenders without fearing the repercussions to follow," Pandey told BOOM.
"In this particular case, the law has been misinterpreted," Enakshi Ganguly told BOOM. Ganguly, Co-Founder and Advisor of HAQ: Centre for Child Rights, said the judge has misread the POCSO act and provisions of the law to bring in the IPC. "POCSO was brought in as a law against all manners of sexual assault violative of a minor," she added.
Advocate Flavia Agnes said this judgment set a "very bad precedent because sexual intent is clear" confining her opinion to this case. "I know the work this judge has done from her stint as a POCSO judge at sessions court where I found her to be very sensitive," Agnes said explaining her confusion over this particular verdict. "In fact as a high court judge, Justice Ganediwala would have been in a better position to interpret the law because of her previous experiences," she added.
"What I find very disturbing is that tomorrow, taking a cue from this judgment, some other judge may also interpret that this sexual touch to a vagina, penis or the anus also requires skin to skin contact," Pandey said. "In fact, after Nirbhaya the law was amended and enlarged to include the scope and definition of what a sexual assault is," Pandey said to articulate why the verdict negated the developments made in rape laws.
Society demand for high punitive punishment counterproductive to justice
The civil rights defenders BOOM spoke to raised another important and relevant point highlighted in this judgement. In her verdict, Justice Ganediwala had observed, "Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required."
"The judgment is a sad commentary on the trend of harsh and punitive measures in our judicial system. "There is a thought that if you increase the punishment, then the children will be safe," Asthana said. "But if you increase punishment, then the standard for conviction also becomes stringent. And this judgment exposes that," he added.
"While I am very disturbed and disappointed to see the way the judge has interpreted the law, I could not help noticing the system be the judge has made about the law being stringent," Ganguly said. "Society's demand for high punitive measures is counterproductive to the justice delivery mechanism," she added.
In December 2012, the gangrape of a 23-year-old woman in a moving bus in New Delhi caused outrage in the society which raised questions issues of women's safety. The fall out of the episode led to the amendment of rape laws in 2015 wherein minimum jail sentences was written in the legislature. The discretion of a judge to look at the facts of the case and jail the offender accordingly was taken away.
Referring to this development, Ganguly observed, "The judges somewhere feel helpless that the discretion (to award appropriate punishment as opposed to the minimum punishment in the legislature) has been taken away from them. Sometimes, the judges may be forced to acquit, rather than send someone to prison."
"Highly punitive laws with stringent punishments leads to acquittals. This is a known fact and yet society demands stringent laws and government gives in and makes such laws. In the end, it is justice that suffers," she said. "The society needs to be less demanding of harsher punitive measures," Ganguly added.
"The legislative's reaction is largely knee-jerk. Emotional public and media response to the legislation derails justice delivery mechanism," Ganguly said.
The verdict is profound in both ways, the positive and the negative points, it raises," Asthana said. "it appears that in this case, the judge was not inclined to give a harsh punishment under the harsher POCSO act, but this has led to the fallout of a bad precedent on what constitutes as sexual assault," he added.
The trend has been to respond to sexual offences by harsh punishments. But this is not correct. This is simply a shortcut and it is counterproductive in the long run. When you increase punishment, the standard of evidence also goes high, Asthana said.
Need exclusive Judges for POCSO
Asthana said making the criminal system efficient is the only way in which the society can respond to crimes. "One way is that the police must register all complaints of sexual assault and follow it up with quality investigation," he said.
Pandey said, and his point was echoed by Ganguly and Asthana, that POCSO cases should be handled by exclusive judges. But before they get appointed to POCSO courts, they must be sensitized, and they must undergo training in child psychology. The same applies for public prosecutors," Pandey said.
"This is because the POCSO act is different from other penal legislations. Apart from having very severe and harsh punishments, the POCSO judge has many other pro-active roles under the law. He is the custodian of child's rights," Pandey said.
"Where judges are protectors of child rights, the public prosecutor is a defender of one," he added.