Bombay HC judgment is a hair-splitting exercise that restricts scope of POCSO

The Bombay HC judgment needs to be set aside and the comments expunged to repose the faith of all survivors of sexual violence in the judicial system.

A recent judgment of a single-judge bench of the Bombay High Court (at Nagpur) held that it is necessary for the accused to have a “skin-to-skin” contact with the survivor in order to bring the offence within the purview of Section 8 of the Protection of Children from Sexual Assault (POCSO) Act, which stipulates a minimum punishment of three years. This has created shock waves among child rights and women’s rights activists in Maharashtra as well as nationally.

It has also moved national-level bodies such as the National Commission for Women (NCW) and the Child Rights Commission into action. The Supreme Court, too, has ordered a stay on the ruling.

The judgment seems to be a futile hair-splitting exercise that restricts the scope of POCSO Act. Justice Pushpa Ganediwala of the Nagpur bench of the Bombay HC modified the order of a sessions court, which had sentenced a 39-year-old to three years of imprisonment for sexually assaulting a 12-year-old girl. She held in her verdict that mere groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault. The phrase “skin-to-skin contact” is not mentioned in Section 7 of the 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.”

However, the bench said: “The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’”. It would, however, fall within the ambit of Section 354 of the Indian Penal Code, which criminalises outraging the modesty of a woman, the court held.

These comments were deemed as “insensitive” by many activists, some of whom have commented that the judge, who was elevated to the high court in 2019, lacks exposure to the letter and spirit of the POCSO Act. I beg to differ. Lawyers and activists engaged with the RAHAT project of Majlis Legal Centre have closely observed the manner in which she conducted the trials in cases of child sexual abuse even before the enactment of the POCSO Act, when she was the trial judge for sexual offences against women and children in the Bombay City, Civil and Sessions Court.

In our first case, which involved the sexual abuse of a four-year-old and where the police had delayed filing an FIR, she had convicted the accused, a watchman, for seven years. A high-profile criminal lawyer, Majeed Memon, appeared for the accused supported by the trustees of the school. On the other hand, our support person was a fresh graduate with no exposure to criminal courts. But it was the judge’s sensitivity that helped in a fair trial.

In another case which concerned the father raping his daughter, where the FIR was filed after 18 months, she had argued that when the police refuse to register a complaint, how can the illiterate mother be blamed for delay in filing. She convicted and sentenced the accused to10 years of rigorous imprisonment.

The most challenging case she presided over is the sexual abuse by multiple men at Kalyani Mahila Bal Seva Sanstha in Navi Mumbai. We had marvelled at the manner in which she conducted the trial. There were around 10 accused and some survivors had to be examined in sign language. In May 2013, six accused were convicted, including the founder-director, of the rape of five mentally-challenged female inmates, three of whom were minors. One of the victims died after she was gang raped. Hence, prime accused and director of orphanage was also convicted of murder.

So, what happened in this case? Why such a mindboggling judgment that has been condemned by all concerned stakeholders — one which can become a precedent to be followed by subordinate judiciary? The harm that has been caused to the minor in this particular case as well as all future cases, cannot be easily overlooked. This judgment needs to be set aside and the comments expunged to repose the faith of all survivors of sexual violence in the judicial system.

This article first appeared in the print edition on February 1, 2021 under the title ‘Weakening the law’. Flavia Agnes is co-founder of Majlis and has done extensive research in cases of child sexual abuse

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