This blog is authored by Harshit Chauhan a first-year law student at Gujarat National Law University
The recent judgements under the Protection of Children from Sexual Offences Act, 2012 (POCSO) Act put forth by Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court flung the sentiments of several national-level bodies, women rights activists, and NGOs leading to questioning not only the validity of the judgement but also the interpretation of various sections of the POCSO Act. In the light of these two controversial judgments which led to a stay on the permanent position of Justice P. Ganediwala, it is important to revisit the POCSO Act and various sections with looming lacunas.
The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 as a gender-neutral act in contrast to the Indian Penal Code (IPC) which does not recognize sexual assaults committed against males. The Act identifies any minor (below the age of 18) as a child. The Act talks extensively about sexual assault without penetration as well (Section 7). It also imposes an obligation to follow the procedures for filing a report under the Act even on an apprehension of sexual assault on a minor and places the burden of proof on the accused. The recent amendments have enhanced the scope of the Act by enabling tracing of cyber harassment cases and the relevant provisions can be used alongside the Information Technology Act, 2000.
Despite the fact that all relevant provisions and procedures have been laid down in the POCSO Act, the fate of the accused is done on a case-to-case analysis, simply based on the interpretation of the provisions. The Bombay HC judgement is a prime example of how varied interpretation can have uninvited consequences.
In this particular case, a 39-year-old culprit, Bandu Ragde was accused of sexually assaulting a 12-year-old for the act of groping the breast of the minor. However, to the judge’s discretion, the absence of any specific details as to whether the top was removed proved to be the ground for turning around the trial court judgement which had earlier held the accused liable under the POCSO Act.
It was observed that the mere act of groping a child’s breast without any “skin-to-skin contact” and “sexual intent” did not fall in the definition of sexual assault under the POCSO Act instead fell within the definition of “outraging modesty” under Section 354 of IPC.
However, it must be highlighted the term “skin-to-skin” is nowhere mentioned in Section 7 of the POCSO Act, which states, “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.”
While the trial court had convicted the accused for both the offenses of sexual assault (Section 7 of the POCSO Act) and outraging the modesty (IPC Section 354), sentencing him 3 years of imprisonment, he was also asked to serve 2 years for kidnapping and 6 months for wrongful confinement.
On the contrary, in her judgement, Justice Ganediwala rejecting the prosecution lawyer’s contention that pressing of breast fell under Section 7 of the POCSO Act acquitted the man under POCSO and convicted him only under the minor offense of outraging the modesty (IPC section 354) while sentencing him to just one year of rigorous imprisonment.
‘Intention’ is the crux of IPC Section 354 for committing the offense of assault and criminal force against a woman. Hence, it is also questionable that how the absence of sexual intent was made ground in addition to the skin-to-skin contact for not holding the convict liable under Section 7 of the POCSO act.
Re-defining sexual assault
In another bewildering judgement by the Nagpur bench, the culprit Libnus was accused of trespassing into a woman’s house and molesting her five-year-old daughter in February 2018. The mother of the child had alleged that the culprit was holding her daughter’s hand and was trying to take her to one of the rooms.
The five-year-old had also informed her mother that the accused exposed himself and asked her to come to bed for sleeping. The woman also noticed the unzipped pants of the accused. The accused was convicted by the sessions court in October 2020 under:
The convict was sentenced to 5 years of rigorous imprisonment along with a fine of Rs. 25,000
On the appeal filed before the Bombay High Court, it was held that “the acts of holding hands of the prosecutrix’, or ‘opened the zip of the pant’ as has been allegedly witnessed in the opinion of this court, does not fit in the definition of ‘sexual assault’ under POCSO Act, 2012.” Further, Justice P. Ganediwala reduced the sentence of imprisonment to the time already spent in the prison by i.e. 5 months, setting him free.
POCSO vs IPC
Although the purpose of the POCSO Act is to act as a deterrent, the judges resort to sentencing the accused of the alleged crime under IPC instead. According to several jurists, the punishment is often deemed to be excessive hence it is imperative to understand whether mandatory minimum sentencing is an effective deterrent. Below is a comparison between the minimum mandatory sentence under the POCSO Act and IPC for crimes like sexual assault and harassment.
Section 8 read in furtherance to Section 7 of the POCSO Act provides punishment for sexual assault and reads, whoever, commits sexual assault, shall be punished with imprisonment of either punishment for a description for a term which shall not be less than 3 years but which may be extended to 5 years and shall also be liable to fine.
Section 10 read in furtherance to Section 9 of the POCSO Act provides punishment for aggravated sexual assaultand reads, whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may be extended to 7 years and shall also be liable to fine.
Section 12 read in furtherance to Section 11 of the POCSO Act provides punishment for sexual harassment and reads, whoever, commits sexual harassment, shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may be extended to 7 years and shall also be liable to fine.
Indian Penal Code:
IPC Section 354 reads, whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
IPC Section 354A reads any man who commits the offense specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
Any man who commits the offense specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
The verdict is deemed not only to be outrightly outrageous but also goes to question and challenge the purpose and the scope of the POCSO Act. It puts forth the question-- is the act effective? With only a 28% conviction rate the POCSO Act has one of the worst track records adding to the list of problems is judgements like these which set a wrong precedent for future cases and even sets the criminals free who carry out such heinous crimes. Hence, there is a dire need for introspection on the effectiveness of the POCSO Act.
Another important question that arises is whether mandatory minimum sentencing is an effective deterrent. It is generally assumed that it helps in dissuading the potential offenders from offending or actual offenders from re-offending. However, many jurists are of the belief that the minimum sentencing is often excessive, and thereby convicting under IPC instead of the POCSO Act invites lesser punishment. This was also evident in the above-mentioned cases.
The biggest flaw is the absence of a separate mechanism altogether under the POCSO Act. A criminal justice delivery system with specialized courts must be set up which would not only resolve the issue of speedy trials but also encourage the specialization of the judges, prosecutors, and the police dealing with cases of child abuse and related crimes under the POCSO Act.
As rightly suggested by Justice Madan B. Lokur, there is a need for an audit of funds, requirements, practices, and procedures of the specialized courts and changes in evidence law, methods of investigation, and strengthening of the forensics department of the government. In addition to this, there is a need to train and sensitize all the judicial, government, and medical officials who deal with such matters as well as ensuring the privacy of the victims.