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Are loopholes in law, an escape for culprit?

Recently, Nagpur bench of Bombay High court in a Sathish v State of Maharashtra held that groping a child's breasts without skin-to-skin contact would amount to molestation under the Indian Penal Code but not the graver offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POCSO) Act.

Public has given quite negative and outrageous response to this decision of a single bench of Justice Pushpa Ganediwala. I believe that the solution to any such problem will lie more in analysing law instead of mindsets of decision makers. Laws need to be more definite rather than strict if stringent punishments are to be awarded.

In this article, we will be reviewing the laws and loopholes that act as a manual for the monsters disguised and do such acts which are a shame to mankind and get lesser punishment.

Brief case history
The appellant on December 14, 2016 had allegedly taken the 12-year-old prosecutrix to his house on the pretext of giving her guava, and had pressed her breast and attempted to remove her salwar. At this point, the mother of the child came to the spot and rescued her daughter. . The prosecution examined five witnesses, the mother, survivor, a neighbour who heard the child scream for her mother, and two police officers.

The accused was convicted by the trial court for offences punishable under POCSO Act and the IPC. He then approached the High Court challenging the conviction.
The question considered by the Court was whether pressing of the breast without removing the top of the child would fall within the definition of �sexual assault� defined under Section 7 of the POCSO Act.

The High Court has held the man guilty under sections 342 and 354 of the IPC while acquitting him under section 8 of the POCSO Act.

Ratio Decidendi as proposed by court and flaws in it

The Court examined Section 7 of POCSO 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."

Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration�, the Court stated while acquitting him under the POCSO Act.

Here, it is vivid that the term physical contact has been interpreted as skin to skin contact and the inability of prosecution to prove the occurrence of so, acquitted the accused from committing the offence of sexual assault.

The flaw in interpretation has made it questionable that mere penetration into layers of clothing can make an immoral act humiliation rather than harassment. Consider these two statements:
"They harassed her."
"They humiliated her."

The gravity of seriousness of actions is basically determined by layers of penetration in clothing in this case. The men took the child to his house, tried removing her salwar ( both actions enough to prove his wrong intent) and she was rescued because her mother reached there. The court should had considered these pretexts before acquitting just on the basis of victim not being disrobed. Justice Ganediwala opined that considering the stringent nature of punishment provided for the offence, stricter proof and serious allegations are required. She also observed that the punishment for an offence should be proportionate to the seriousness of the crime.

Does this give a implicit message that pressing breast without removing clothes is not serious enough to be called �sexual assault� and be actionable under punishments mention in section 8 of POCSO act. The heinous offense of pressing breast without disrobing have not been included by judge in the term any other act with sexual intent of section 7 of POCSO act as the act of removing salwar and groping is not similar to the others mentioned above in the section. When the meaning of terms on which entire decision is based becomes subject to interpretation only, then justice becomes subjective, what may be just for one may not be for other. Is this not a flaw in our law, codified strict law?
The flaw in law

Mere touch, even of the slightest finger can amount to physical contact to one and even �pressing breast without disrobing� may not amount to physical contact to other. The term �physical contact�, which is a essential for committing sexual assault must not be vague enough for interpretation of individual. A proper definition of what the law makers intend from the term �physical contact� should be given. This is one such loophole where our justice system fails to cater the victim and leads to miscarriage of democracy. If we were provided with a proper definition of what � physical contact� meant, it would have given rise to a more reliable and satisfactory justice delivery process.

Such gaps in laws which lead to subjective interpretation of the essentials of crime act as an escape way for the accused, they act as a power which law provides them to sexually assault and not get punished. So, proper definition of such terms in any codified laws is required that will make justice delivery more objective. As we have seen a mere presence of a layer of cloth has made a huge difference in interpretation of sexually harassing and humiliating someone.

More than the need for making new laws in this country, we have need of filling such loopholes in present laws and implement them. The above mentioned case is just one examples, we have plethora of noticed and unnoticed examples. Identifying such loopholes, filling them, will lead this country to a more reliable and objective justice delivery system where justice won,t be affected by individual interpretation.

  4. POCSO ACT, 2012
  5. THE IPC, 1860

Written By: Yogita- B.A. LL. B (Hons.) - School of Law, Manipal University Jaipur.

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