Bombay High Court's controversial judgment on POCSO Act.
The recent judgment of the Nagpur Bench of the Bombay High Court causes a furore in the country where individuals, NGOs and several experts criticized the judgment for its vague and insensitive interpretation of the law. The Court held that “there must be direct physical contact i.e. skin to skin with sexual intent without penetration to fall in the definition of ‘sexual assault’ of Section 7 of the POCSO Act”.
The name of the case is Satish Ragde v State of Maharashtra where the issue before the court was, whether the ‘pressing of the breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act. The Court observed that a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence under section 7 of the act. The Court also remarked that the stringent nature of punishment provided for the offence requires stricter proof and serious allegations.
The judgment will have a cascading effect on various provisions involving the well-being of women in general and has also trivialized the legal provisions provided by the legislature for the safety and security of women. The Supreme Court stayed the order of the high court and also various appeals have been filed by the Youth Bar Association of India and the NCPCR, urging the Apex Court to nullify the High Court’s decision.
On a similar ground, Kerala High court had disparaged the observation of a lower court that touching the breast of a victim only through clothes without skin contact is a less severe offence. The case of Geetha v. the State of Kerala, having a similar scenario as of recent verdict of Bombay High Court, where Kerala High Court mentioned that cases of sexual assault against children need to be dealt with strictly and all courts should adopt an interpretation that is in consonance with the objective of the law, that is, to protect children against sexual abuse and exploitation.
After Satish’s Case, one more judgment of Bombay High Court create a fuss where the Court has held that the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the Protection of Children from Sexual Offences Act 2012. Court mentioned that such acts came under Section 354-A(1)(i) of the Indian Penal Code (Libnus v State of Maharashtra). The Judgments of Satish Case and Libnus case are from the same Nagpur Bench of Bombay High Court, headed by Justice PUSHPA V. GANEDIWALA.
POCSO Act is stringent in nature because it is protective legislation that has been enacted as a special provision pursuant to Article 15(3) of the Constitution. According to its Preamble, the POCSO Act is self-contained comprehensive legislation that provides for the protection of children from sexual assault, harassment, etc. There is more than 70 per cent of cases related to sexual assault that goes unreported and for those that do get reported, the conviction rate is very low. Such a narrow interpretation by the Court may allow a person to exploit the child and get away with lesser punishment under the POCSO law.