In a recent judgement, Section 7 of POCSO Act was interpreted in a controversial way by the Nagpur Bench of the Bombay High Court. 

Issue of the definition of sexual assault under POCSO Act

• Recently, the Nagpur Bench of the Bombay High Court held that skin-to-skin contact is essential to constitute the offence defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
• Section 354 of the Indian Penal Code, 1860, which deals with outraging modesty of women and which provides for a lesser sentence, was held to be applicable in such cases.
• This ruling raises several concerns.
• The National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court.
• The Supreme Court has currently stayed the acquittal of the accused under this judgement.

Concerns with the judgement

• The Court held that the stringent nature of punishment provided for the offence required stricter proof and serious allegations.
• The court said the punishment should be proportionate to the seriousness of the crime.
• Nevertheless, while adjudging the seriousness of the offence the court has not given consideration to the fact that the victim, a minor, is entitled to greater protection.
• The major concern is that the interpretation of the court seems to defeat the purpose of the POCSO Act.
• Section 7 of POCSO defines sexual assault as “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.”
•  The court has concluded that the touching of the breast without skin-to-skin contact is not similar to the abovementioned acts and, therefore, does not fall within this definition.
• The court seems to have followed a rather pedantic approach to reach this conclusion.
• The fact that the trauma of the child whose breasts were groped through a cloth could be of the same nature and severity as direct touching of the breast is not discussed.
• And if the trauma is the same, the mere existence of cloth should not affect the applicability of the POCSO Act.

Legislative history and object of POCSO Act

• The POCSO Act was enacted with the specific intention of protecting children from sexual assault and sexual harassment.
• It took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.
• The Act acknowledges the special vulnerability of children and that special protection, above and beyond that provided in the IPC, is required when the victim is a child.

Conclusion

If such an interpretation is followed, there is a threat that the POCSO Act in itself might become redundant as a wide range of sexually violative activities would be excluded from its ambit due to lack of skin-to-skin contact.

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