Figure 1: Young women protesting against sexual violence against women, Delhi 2015. Source: The Guardian.
On 19 January, a 39-year-old man, accused of groping a 12-year old girl over her clothing,was acquitted by Bombay High Court (BHC) of India. According to the girl (the prosecutrix [1]), the man (the appellant) took her to his house under the pretext of giving her guava. When already inside the house, he pressed the girl’s breast and tried to remove her pants while pressing her mouth by his hands. She was later found by her mother, who came to the house looking for her.
Initially, the man was charged with ‘sexual assault’ under Section 8 of the Protection of
Children Against Sexual Offences Act (POCSO) 2012 and with ‘use of criminal force’ under Section 354 of the Indian Penal Code (IPC). The man was sentenced to three years in prison and a fine of 500 Rs (4.93 GBP) or both sections 8 POCSO and 354 IPC running concurrently.
On appeal, the Bombay High Court acquitted [2] him of s 8 of POCSO but upheld his conviction under s 354 IPC. Understandably, such decision by BHC sparked concerns and
dissatisfaction amongst many Indian citizens and human rights campaigners.
Why did the High Court decide to charge the appellant with lesser offence and what do these sections say?
Certainly, the court had no doubts in credibility of the her statements, which
was acknowledged in the original judgment. The issue to be considered was whether
‘pressing of breast’ and ‘attempt to remove pants’ fell within the definition of ‘sexual assault’ under s 7 of POCSO, which is punishable under s 8. As per section 7 ‘touching of vagina, penis, anus or breast with sexual intent which involves physical contact without penetration’ amounts to a minor's sexual assault. The wording of the section, however, does not specify whether the physical contact must be direct, i.e. skin-to-skin, or indirect, i.e. over garment/top. Therefore, in reality, the interpretation of the wording is left to the courts themselves. It is clear from the judgement that the BHC interpreted ‘physical contact’ as direct, ‘skin-to-skin’ contact (para 26 of the judgement). Applying its interpretive power, the High Court stated that the requirement of section 7 ‘with sexual intent touches the vagina, penis, anus or breast of the child’ is a ‘ejusdem generis’ [3]. Subsequently, since there was not sufficient evidence of any direct physical contact with the minor’s private parts, i.e. breast, hence the act will fall under ‘any other act…with sexual intent…without penetration’.
Figure 2. Supreme Court decided that the Bombay High Court order on acquittal should stay.
Under s 8 the punishment for a person convicted of minor’s sexual assault ranges between three to five years. In contrast, s 354 IPC, provides a minimum imprisonment of one year. Given such stringent punishment under s 7, the threshold of proving the offence under it is much higher than under s 354 IPC. In light of this, the BCH found that the prosecution failed to provide ‘sufficient details’ that there has been direct physical contact, therefore offence of sexual assault under s 7 was not proved. In the view of this, the man was sentenced to only one year, the minimum sentence under s 354 IPC, 500 Rs. (4.93 GBP) and kidnapping.
It should be noted, that as much as such restrictive interpretation may seem concerning, it is not so uncommon in ‘sexual assault’ cases. For example, in another similar case of State vs Bijender (2014), which concerned a 25-year-old man being accused of aggravated sexual assault under section 10 POCSO (he attempted to sexually assault a 7-year-old girl by kidnapping her and trying to forcibly take off her cloths). In this case, the court's position was that since there has not been any of the ‘touching the vagina, penis, anus or breast of the child’ or otherwise, ‘she was not assaulted by the accused more than this’. Hence, there could not have been an offence of sexual assault, despite the fact that he did make a physical contact with sexual intent. Additionally, the minimum imprisonment for aggravated sexual assault is three years and can extend to seven years. So, the court decided to convict the man under s 354B IPC which has similar minimum sentence of three years as s 354 IPC.
Figure 3: A child taking part in a protest against sexual abuse of women in India. Source: BBC.
There have been arguments that the three year mandatory requirement, and the mandatory regime in general, may act counterproductive, as the judges may then consider the IPC sections with lesser minimum punishment over stricter ones under POCSO. Such act can, arguably, contribute to actually harsh sexual offenders to get away with a lesser offence. Another potential implication may be the reduction of reporting such case, due to the believe that there will not be an adequate punishment.
[1] Prosecutrix: a female plaintiff who brings a charge against another person in a court.
[2] Acquittal: a person is acquitted when the court finds them not guilty in an offence.
[3] Ejusdem gener: a rating legal term for a principle for interpreting legal texts which are assumed to be of the same kind.
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