Robin David
In a shocking verdict that will have far-reaching implications for child safety, the Bombay High Court (HC) recently ruled that there must be “skin-to-skin contact with sexual intent” for an act to be considered sexual assault. This ruling came in a case where an accused had filed an appeal against a Nagpur trial court's verdict which found him guilty. According to the trial court, the accused took a 12-year-old girl to his house in 2016, groped her and attempted to disrobe her. This would be an open-and-shut case under Sections 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, to convict the accused. For the purposes of this case, a summary of Section 7 would define “sexual assault” as a touch involving “physical contact” of the genitalia of the child with sexual intent. Section 8 says that the punishment for sexual assault is imprisonment for three to five years, with a fine. The trial court found the accused guilty under Section 7 and sentenced him to three years' imprisonment in February 2020.
But the Bombay HC, in its ruling on January 19, said that the victim was wearing her clothes when the assault took place. As she was wearing a shirt and there was no “skin-to-skin” contact, there was no “physical contact.” As a result, there was no sexual assault under the POCSO Act. The accused was acquitted under the POCSO Act, but convicted for a lesser offence under Section 354 of the Indian Penal Code (IPC) for one year. Apparently, the HC felt that “physical contact” and “skin-to-skin” contact are the same. On January 27, the Attorney-General informed the Supreme Court about the HC's verdict. He said that the HC's decision is likely to set a dangerous precedent. The Chief Justice of India on the basis of the Attorney-General's oral statement stayed the HC's order. The HC seems to have ignored the very purpose of POCSO. Section 8 punishes any person for acts committed with “sexual intent” such as touching the private parts of a child or any other act which involves physical contact, with a minimum imprisonment of three years.
Sadly, sexual violence against children and women is alarmingly common in the world. According to the National Crime Records Bureau's (NCRB) reports, one girl child is sexually abused every 15 minutes in India. Statistics of the past few years from the ‘Crime in India' report suggest that in 80-90 per cent of the cases, the offender is known to the victim. Out of the 1,48,185 crimes against children reported in 2019, a whopping 31.2 per cent are registered under the POCSO Act. According to a senior official in the Home Ministry, 26,192 cases were reported under the POCSO Act that involve child rape charges and 24,672 of the accused in these cases were known to the survivors.
The State-wise data of NCRB shows that 52 teachers were booked under the POCSO Act in Himachal Pradesh in the last decade. Over the years there has been a consistent rise in POCSO cases in the country. However, the conviction rate for child rape cases has been low, at 28.2 per cent and the pendency of cases is at 89.6 per cent. The HC's interpretation and application of the law is antithetical to the legislative intent of the POCSO Act and the Directive Principles of State Policy. Saying that the ingredient of the crime, namely groping a minor, is not an offence under the POCSO Act in the absence of skin-to-skin contact is ignoring the legal meaning of the law. Taking the principles of statutory interpretation into regard in the 1844 Sussex Peerage case, Tindal CJ observed: “The words of the statute are in themselves precise and unambiguous, then nothing more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the lawgiver.” Similarly, in the Pallavi Resources Ltd vs Protos Engineering Company case, while dealing with the interpretation of provisions of the West Bengal Premises Tenancy Act, 1997, the Supreme Court held that the language employed in a statute is the determinative factor of the legislative intent and if the language of the enactment is clear, then it would not be proper for the courts to add any words thereto and evolve a legislative intent not found in the statute.
On December 11, 1992, India ratified the United Nations Convention on the Rights of Children (UNCRC), which prescribes a set of standards to be undertaken by all State parties to secure the best interests of children and to prevent inducement or coercion of a minor to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual conduct and the exploitative use of children in pornographic performances and material.
The UNCRC views sexual exploitation and abuse of children as heinous crimes and, therefore, propelled State parties to enact legislations to effectively address crimes against children, which constitute “sexual intent.”
Resultantly, by the effect of the enabling provision of the Constitution, Article 15, which empowers the State to make special provisions for children, and Article 39 of the Directive Principles of the State Policy that provides that the State shall direct its policy towards securing that children are not abused and their childhood and youth are protected against exploitation, the POCSO Act came into force. The Constitution further emphasises the need to provide facilities for children to develop healthily and in conditions of freedom and dignity.
The primary purpose behind enacting POCSO is to equip or prepare courts to adopt a child-centric approach. The language adopted by the courts is not what a child speaks. Children speak not just in words but also express their fears and apprehensions through facial expressions, gestures, noises, which the court is not adequately trained to understand. Hence, lawmakers believed that child abuse must be dealt with through the application of the “best interests of the child” standard. With the best interests of the child at heart, the POCSO Act calls for establishment of special courts for children under Section 28 of the Act for fair and speedy disposal of cases.
The criminal laws before the enactment of POCSO neither solely addressed crimes against children nor were they gender neutral. The vulnerabilities, exposure of a child to repeated abuse were ignored. POCSO is a special legislation to punish perpetrators of child abuse. The order passed by the Bombay HC is clearly regressive, neglecting the effectiveness of delivering justice through POCSO. The court ought to have considered that when the element of mental intention, the sexual intent, is clearly proved, it is immaterial whether the child was groped through the clothes or not. Sexual offences against children are violent crimes that exploit their vulnerability and cause profound harm to the victims, their families and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender. Treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16, is an error of law.
Due to the pandemic restrictions, children are spending more time at home and are more exposed to “known” predators. Children are regarded as silent victims of human rights violations against them and are an easy prey because of their tender age, innocence, inexperience and physical inabilities. Sexual predators of children must be adequately sentenced as a deterrent so that other minors are protected. Children are the future of our country and our communities, they are also some of the most vulnerable members of our society and deserve to enjoy a childhood free of sexual violence.
