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No Skin To Skin Touch, No Sexual Offence: Victim's Justice or Judicial indiscretion?

In order to deal with the subject of child sexual abuse , the Government of India instituted a special law in 2012 called, The Protection of Children from Sexual Offences (POCSO) Act which is a exhaustive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding their interests at every stage of the judicial process by subsuming child-friendly mechanisms for reporting, investigation, recording of evidence, and speedy trial of offences through Special Courts. However the Bombay high court Judgement of 24 January, 2021 seems to quash the provisions given in the act.

The judgment was trying to reverse the decision of a Sessions court of conviction under POCSO and 3 years jail term and also reduced the sentence and offence character. Moreover the statement made by the sitting Judge  no skin to skin touch, no sexual offence made the judgment controversial and the verdict faced a lot of criticism and argument and the Hon'ble Supreme Court stayed the verdict. This article explores the reasons as to why the Judgement was problematic and against the safeguards and provisions given by POCSO and what measures should have been taken to prevent such judicial indiscretion.

Introduction:
Each year, millions of children around the world fall prey to one or the other form of sexual abuse or exploitation. Sexual violence and exploitation has become a common occurance everywhere – in every country and across all fregments of society and even children become the victims of such crimes. A child might have to go through sexual abuse or exploitation at home, at school or in their community and even in any religious institution by people in positions of power and authority.

The inescapable use of digital technology and media can also put children at risk in the form of child pornography. Children are the most vulnerable members of our society due to their age, immaturity, low self esteem and lack of physical strength. The criminal victimization of children is a pervasive phenomenon in our society that impacts not only the children, but also their families, friends, communities, and society at large. Children seldom know how to express their feelings and emotions. Even if the child is a teenager, they may not necessarily want to speak about a particular incident that they have faced due to experience of guilt, shame and anxiety and talking might seem impossible.

The child may also want to shield his/her parents from their distressing experiences. The crime may sometimes involve unauthorised action on behalf of the child as well, which may prevent the child from talking about the situation. In such situations it is important to ensure the child that they will not be the ones who will be punished for things they tell and proper laws and safeguards should be put in place.

And to respond to such rampant child sexual abuse different measures are taken at national and international level. One such measure taken by our country is Protection of Children from Sexual Offences Act, 2012 (POCSO Act to deal with cases of child sexual abuse. However, the question here is: Are children downright protected under the ambit of such acts or there exists some loopholes in the law which provides a benefit of the doubt to an accused and lets the accused go scott free?

The Bombay High court's Judgement:
On January 24 2021 a sitting judge of the Nagpur bench of the Bombay High Court Justice Pushpa Ganediwala's judgement sparked a nationwide controversy . The Judge acquitted a man under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) who had groped a 12 year old girl's breast and attempted to remove her clothes.

The bench within the case alleged that holding a minor child's hands and therefore the act of a person unzipping his pants ahead of her won't come under the confines of 'sexual assault' as defined by the Protection of Children from Sexual Offences Act, 2012.

The court further ruled that touching a child's cheek without any sexual intent does not amount to an offence. This ruling of the Bombay supreme court triggered widespread criticism over the interpretation of and therefore the loopholes within the Protection of Children from Sexual Offences Act, 2012. Citizens took over twitter the following week in order to protest and show their dissatisfaction to the judgement.

The POCSO Act: an abridgement
In order to credibly address the abhorrent crimes of sexual abuse and sexual exploitation of children through more comprehensive and stringent legal provisions, the Ministry of Women and Child Development introduced the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has been enacted to shelter children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and related matters and incidents.

The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child. After this amendment the Act garnered interest when an amendment was made to increase minimum punishment for aggravated as well as penetrative sexual assault on children below 16 years from 10 to 20 years, extendable to life imprisonment or death.

POCSO was explicitly formulated to deal with offences of child sexual abuse and child pornography. The Act has 46 provisions that increases the scope of reporting offences against children, which were not earlier covered under the Indian Penal Code (IPC). This also expanded the criminal penalty for aggravated penetrative sexual assault to include punishment for abuse by a person in position of trust or authority.

It also defined the procedure for reporting cases, including a provision for punishment for failure to report a case or false complaint. It provided procedures for recording of the statement of a child by the police and court, specifically requiring that it should be done in a child-friendly manner, and by establishing special courts. The POCSO Act defines offences of sexual assault, sexual harassment and child pornography explicitely. It also sets out a child-friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases.

The aim of the act is to provide protection to the child at every stage of the judicial process. Another significance of the act is that POCSO is a gender neutral law for protection of children against sexual offences. The act recognises that boys can be victims of sexual violence as well. It defines a child as someone under the age of 18. The Indian Penal Code does not recognise that sexual assault can be committed on boys.

Under provisions of the POCSO Act, a child is entitled to : Getting their statement recorded at their residence or a place of their choice, and preferably by a woman police official or an official not below the sub-inspector rank, in civilian clothes. The police official should ensure that during the investigation, the child shouldn't come in contact with the accused. The child cannot be detained at the police station at night, and his/her identity should be protected from the public and media unless directed otherwise by a Special Court.

If the survivor is a girl, the medical examination should be done by a woman doctor, and the examination can only be done in the presence of a parent, or a person the child trusts. If neither of the two are there, then the examination should be done in the presence of a woman nominated by the head of the medical institution.

The special courts stipulated under the POCSO Act are also to be child friendly. There are provisions such as making a child-friendly atmosphere in the court premises by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present; allowing frequent breaks for the child during the trial; and ensuring that the child does not have to face the accused during evidence collection as well as cross examination.

Based on the Special court's discretion, proceedings can also happen in-camera, i.e., no one except those related to the case can be present in court, and in presence of the child's parents or another adult he/she trusts. Despite such stringent measures the Judgement of the Bombay high court managed to exploit the loopholes in the law and a 12 year old child was denied complete justice.

The detail description of proceedings in this case:
The ruling in the case was pronounced by a single bench of Justice Pushpa Ganediwala in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a minor girl. Justice Ganediwala had modified a sessions court order that held a man guilty of a minor's sexual assault. She had ruled that groping a child without "skin-to-skin contact with sexual intent" does not amount to the offence under the Prevention of Children from Sexual Offences (POCSO) Act.

According to the Act when sexual assault is committed against a minor younger than 12, it becomes aggravated sexual assault under Section 9 and is punishable with a stronger sentence. Based on the complaint, the sessions court had held on January 15, 2021, that this was a case of aggravated sexual assault and convicted the accused under sections 354A (sexual harassment) and 448 (punishment for house trespass) of the Indian Penal Code along with sections 8 (punishment for sexual assault), 10 (punishment for aggravated sexual assault) and 12 (punishment for sexual harassment) of the POCSO Act. Consequently, it had sentenced him to five years rigorous imprisonment and fine of Rs 25,000 with a default simple imprisonment for six months.

However, while considering the appeal, the high court resorted to the same legal logic that had been cited in the earlier POCSO judgment and which examines a loophole in Section 7 of the POCSO Act regarding 'physical contact'. The court thus set aside convictions under sections 8, 10 and 12 of the POCSO Act. Two portions of the judgement quoted by Bar and Bench point to sections under POCSO Act and IPC that the court found the offences should fall under . The high court also held that the time of five months' imprisonment which the accused served was enough in this case and reduced his sentence to time already served.

Reasons behind such criticisms:
Initially the Nagpur Bench of Bombay High court created a great controversy on January 24, as she acquitted a man under the POCSO act and the POCSO act enacted with the main objective of protection of children whether male/female from various kinds of sexual abuses. Here in this case the girl, who was sexually assaulted, was 12 years old at that time but still the case was not charged under POCSO act and according to judge, the case basically fall under section 354 of IPC, which carries punishment of 1 to 5 year and the judge gave the judgment based on this IPC section, which is really unacceptable, illogical and absurd.

For example:
If we talk about Shimla Rape case, where a 28 years old man accused of rape and murder of a 16 year old schoolgirl, still the case was charged under the POCSO Act, while the case with a sexual assault against a 12 year old girl was not charged under the POCSO Act. Any sexual harassment If an assault is committed against a girl under the age of 16, the case should be charged under POCSO Act, which is completely avoided in this case and for this reason this judgment needs some evaluation.

Also, the main reason for the enactment of the POCSO Act was to prevent incidents such as child sexual abuse and to provide proper protection to the children as well as to punish the perpetrators. Basically, under the POCSO Act the offender is usually sentenced to a minimum 10 to 20 years in prison for committing penetrative crime and in some cases it is extended to life imprisonment to execution of the perpetrator.

So, this case was going to the session court before the Bombay high court and the session court also gave the judgment based on the POCSO Act, but later the High court had proceeded to examine section 7 of POCSOact (Vishwanath, 2021).

According to Bombay High court the ingredients for consulting the offence of sexual assault are that:
The act must have been committed with sexual intent and it must involve touching the vagina, penis, anus or breast of the child or any other act which is similar to the acts specifically mentioned in the provision and this is the main reason that High court include section 354 of IPC instead of involving the POCSO Act. So, is it the ultimate judgment that we want as a form of justice?

Our Constitution of India comprises basic fundamental rights, in which article 14 describes, the equality before the law and equal protection of law within the territory of India and Article 21 states that, no person shall be deprived of his life or personal liberty except according to procedure established by the law. But as a result of this controversial judgment from Bombay High court these two rights have already been violated and the biggest question is why section 354 was brought in the case where the POCSO Act was necessary to come into force? The 12 years old girl has been deprived of her right to get justice and also for this reason the Bombay High court's judgment needs to be criticized (Mahapatra, 2021).

For example: In 2017 at Nashik, Maharashtra a six years old girl was sexually abused by her father and was killed by her grandmother who was trying to cover up the crime and here also the case was charged under section 376 of IPC and specifically on POCSO Act. So, here also we can see that the girl got what she needed or girl's family got what they needed but in this matter why the girl was deprived of her right and why she was not given the proper justice? This is what makes us scared now that wheather the judgment was a right decision or it is helping to increase such incidence of child abuse in future (Ramakrishnan, 2021).

Top organizations and famous personalities, to whom the judgment was unacceptable and outrageous:
The organizations who objected most against this judgment were the National Women Commission and even they appealed to the Supreme Court, and as a result the Supreme Court stayed Bombay High court's judgment.

Also the executive director of child rights NGO Bachpan Bachao Andolan, Mr. Dhananjay Tingal said that:
Their legal team was looking into the matter and all the data related to this is being collected.

We shall be appealing to the Supreme Court on the basis of their inputs. Kavita Krishnan, the activist and the secretary of All India Progressive Women's Association, called the judgment an 'outrageous judgment' and she added:
The POCSO Law defines sexual assault very clearly and it has a provision for sexual touch and the judgment didn't make any sense. This is absolute rubbish and it fails the test of common sense also.

According to Yogita Bhayana, an activist who heads the people against Rape in India also mentioned that - the judment was so disappointing and it will motivate the perpetrators in future.

A Women Rights Activist, Shamina Shafiq stated that it was very painful to hear that a lady judge gave this judgement.In addition to these, many other social media platforms and many news channels and news articles have opposed this judgment (India News, 2021).

Views and suggestions on the judgment:
There is always a motive or specific intent behind any work and similarly there is always a motive and intent behind committing crime and in this case the main motive of the perpetrator was to rape of the teenager. He had pressed her breast and attempted to remove her salwar, even luring the girl to go with him to his house on the pretext of giving her guava. So, yes there was a motive and also our country has POCSO Act which states that, if any girl (under the age of 18) is sexually harassed, the case should be charged under the POCSO Act, but unfortunately this aspect has not been considered in this case.

For example – There was an incident in Bangalore, where a 5 years old girl was sexually abused by an unidentified person in the suburbs of Bangalore. This case of child abuse was also charged at under section 376 of IPC and POCSO Act and this is just one case, there are many more cases like this, in which only POCSO Act has been charged but still I don't understand that for what logic and for what reason the case of sexual assault against a 12 years old girl was not charged under the POCSO Act(Mistry, 2021)?

According to Cesare Beccaria's Classical School of Criminology, The punishment should be proportional to the crime.

Basically this is the case to attempt rape against a minor girl which should be charged under POCSO Act and the culprit should have been sentenced for three years, but unfortunately this was not done, rather than this, the culprit has been charged under section 354 of IPC which carries only one year of detention.

So, those perpetrators convicted of raping of minors should be given the harsh punishment as soon as possible, just as a death sentence is given to a person convicted of murder. In this case if the offender had been sentenced to three years of rigorous imprisonment, then the punishment should have been proportional to the crime because sometimes severe punishments do prevent crimes and that's why they should be used, so yes punishment should be proportional to the harm that a crime has caused. According to Cesare Beccaria, the aim of punishment is basically to prevent offenders from doing it again and to prevent other people from committing crime as well.

For example – According to the POCSO Act, for the penetrative assault on children below 16 years, punishment was increased from 10 – 20 years and may be extendable to life imprisonment or death, while section 8 of minor offences, the minimum punishment is up to three years (Paranjape, 1973)

This case also comes under minor offences and if the offender should be given three years of punishment then the future offenders will always be sure that they would be punished and their punishment would come as quickly as possible after the offence and this would be a large chance of preventing crimes.

If we look at the incidence of child abuse in India, we can clearly understand that the incidence of child abuse is increasing day by day in India and the most important thing is - Maharashtra possesses higher rate of child abuse incidents. So, here I have mentioned the crime statistics of child abuse which was given by The Minister of Women and Child Development (Ministery of Women & Child Developement, 2017, 272).
 
Sr. No. State/UT 2015 2016 2017
1 Maharashtra 4816 4815 5248
2 Andhra Pradesh 1054 830 378
3 Assam 819 821 1149
4 Bihar 187 233 1356
5 Chhattisgarh 1656 1570 1676
6 Goa 79 75 0
7 Gujarat 1609 1408 1697
8 Haryana 988 1020 1139
9 Himachal Pradesh 206 205 8
10 Jammu & Kashmir 30 25 0
11 Jharkhand 182 348 385
12 Karnataka 1526 1565 1956
13 Kerala 1486 1848 1169
14 Madhya Pradesh 4624 4717 1569
15 Manipur 43 43 29
16 Meghalaya 167 151 242
17 Mizoram 169 167 194
18 Nagaland 15 27 41
19 Odisha 1372 1928 249
20 Punjab 666 596 489
21 Rajasthan 1311 1479 1180
22 Sikkim 55 92 87
23 Tamil Nadu 1544 1583 1587
24 Telangana 1394 1158 1632
25 Tripura 133 156 139
26 Uttar Pradesh 4541 4954 4895
27 Uttarakhand 168 218 191
28 West Bengal 1504 2132 2131
29 A & N Islands 39 49 65
30 Chandigarh 62 51 3
31 D & N Haveli 15 11 12
32 Daman & Diu 5 10 5
33 Lakshadweep 1 5 4
34 Puducherry 49 53 66
35 Arunachal Pradesh 54 59 14
36 Delhi 1936 1620 1623
  Total 34505 36022 32608
So, looking at this crime statistics, we can get an idea that the number of child abuses is increasing at that point this case can be a great example, if the culprit was properly punished and the case will be a threat to those perpetrators who commits rape of minors.

According to Cesare Beccaria's Classical school of Criminology, Punishment should be certain and swift. He believed that if the offenders were sure that they would be punished and their punishment would come as quickly as possible after the offence, then this would be the largest chance of preventing crimes.

Even in this case if the convict had been sentenced to three years rigorous punishment, the future offenders would have been thought at least once that what would be the consequences for committing rape against a minor girl and it will also prevent the future incidents like child abuse (Mistry, 2021).

Conclusion
So, for now the Supreme Court has stayed the Bombay High court's judgment. The only thing I can ask that – Section 354 of IPC is about sexual offence against women, then why the case of sexual offence against 12 years old girl was charged under this IPC section rather than using the POCSO Act and this raises a question that – whether we really want a judgment in which the sexual offence with minor is being compared with the sexual against with women or not?

And this is also responsible for raising a lot of crimes against children because one thing is true that about 70% or above sexual offence cases in our country are unreported in every year due to political pressure, due to police corruption or due to rapist's pressure and for these reasons I think culprits should be given harshest punishment as soon as possible.

But hopefully the Supreme Court has stayed this judgment and recently K. K. Venugopal the Attorney General of India slammed and criticized the decision of Bombay High Court and explained that – Someone can wear a surgical glove and exploit a child and get away scot free…This is an outrageous order.

Even he approached the Apex Court against the judgment of Bombay High Court. He specifically mentioned that the previous order would create a 'very dangerous precedent' and ill intention to the perpetrators and it would affect our society badly and it will provide a larger area for the offenders.

So, as per the news the next hearing about this case will be organized on 14th September and there is a hope that may be Supreme Court will give the proper judgment against the perpetrator and will give the proper justice to the victim and specially this case will stand as an example of POCSO Act along with that, the 12 years old girl will not be deprived of her right and justice anymore, because (The HIndu, 2021) – Injustice anywhere is a threat to justice everywhere – Martin Luther King.

References:
  • India News. (2021, January 25). Obnoxious, unacceptable, outrageous:activists on Bombay HC judgment. Hindustan Times
  • The Protection Of Children From Sexual Offences (Amendment) Act, 2019,
  • The Protection Of Children From Sexual Offences (Amendment) Act, 2019
  • Mahapatra, D. (2021, January 30). Controversial Pocso rulings cost Bombay high court judges her confirmation. The Times of India.
  • Ministry of Women & Child Development. (2017). Annual Reports. 272.
  • Mistry, G. (2021, January 28). The Bombay High Court judgment on sexual assault: A serious matter. Bar and Bench. barandbench.com
  • Paranjape, P. N. V. (1973). Criminology & Penology (including Victimology) (Eighteenth Edition ed.). Central Law Publications.
  • Rajagopal, K. (2021, January 27). Supreme Court stays Bombay HC order on 'skin to skin' contact for sexual assault under POCSO aCT. The Hindu.
  • Ramakrishnan, S. (2021, January 31). Bombay HC's interpretation of POCSO is problematic at several levels. The Indian Express.
  • Vishwanath, A. (2021, January 30). Explained: In Bombay HC verdict on sexual assault, issue of mandatory minimum sentencing. The Indian Express.
Written By:
  1. Ananya Kanjilal - M.A. Criminology with specialization of Forensic Psychology, National Forensic Science University, Gandhinagar, Gujarat, India
  2. Saptaparni Majumdar - M.A. Criminology with specialization of Forensic Psychology, National Forensic Science University, Gandhinagar, Gujarat, India

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