Author: Samiksha Gupta
Managing Editor, Founder | Leagle Samiksha

Introduction to Sexual Assault:

The Nagpur Bench of Bombay High Court pronounced a baffling judgment on 24^th Jan, 2020. In the case of Satish v/s State of Maharashtra[1], the single bench interpreted the offence of “sexual assault” under Sec 7 of The Protection of Children from Sexual Offences (POCSO) Act, 2012 in a strict fashion. The author does not see eye to eye on several aspects of this judgement.

First, Hon’ble Justice Pushpa Ganediwala held that, “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’.”

Secondly, the court also stated that, “there is no direct physical contact i.e. skin to skin with sexual intent without penetration”.

Finally, the court made out the offence of Outraging the Modesty of a Woman under Sec 354 of the Indian Penal Code, 1860 (IPC) instead. The court convicted the accused with the minimum penalty of imprisonment for 1 year under Sec 354 of IPC instead of upholding the conviction under Sec 8 of POCSO Act, which specifies thrice the punishment.   

The author thinks that this restrictive approach has set the movement for child rights and protection of children back by a giant stride. In this article, the author elucidates the reasons why.

Narrows down the Definition of Sexual Assault:  

For the purpose of this case, the relevant part of the definition of sexual assault under Sec 7 of POCSO Act has three elements –

1. any other act
2. with sexual intent
3. which involves physical contact without penetration”.

Nowhere does the legislation use the word “direct” physical contact. The interpretation of this provision should have been literal. The court has added an unsolicited rider of “skin to skin” contact under physical contact. It has gone overboard to add the element of direct contact and established new additional criteria for an act to be classified as sexual assault. This form of judicial activism was avoidable, even unnecessary as the wording of the law is quite unambiguous.

The focus of the law should be on the sexual intent behind the touch and not the intensity, gravity or type of the touch itself. It has the effect of making it more difficult to prove the offence in cases of non-penetrative physical contact.

Excludes Several Forms of Sexual Conduct from Liability:

The “direct physical contact” element excludes many other activities of a sexual nature from the ambit of sexual assault. This raises the threshold of an act being considered as a sexual assault. Effectively, it implies that sexual activities which may be performed without disrobing the victim, such as humping, grinding, groping, thrusting, fondling etc., will not attract liability under POCSO Act.

This interpretation would mean that the victims of such activities will not be able to claim remedy until they have been subjected to a far worse violation. Just because the worst has not happened, or intervention has prevented the worst from happening, it does not mean that what happened was not bad. Therefore, instead of protecting the children from sexual offences, the condition requiring direct skin to skin contact exposes them to more vulnerabilities and graver circumstances than before.

Sets a Dangerous Precedent:

It follows from the previous point that this judgment has set a dangerous precedent for times to come. Coming from the High Court, this decision is authoritatively binding on all the lower courts within the territorial jurisdiction of the High Court of Bombay, unless overruled by a larger bench of the same High Court or by the Supreme Court.

The judgement creates an extraneous classification in the offence of sexual assault –

1. Acts committed with clothes on
2. Acts committed by making skin to skin contact with the victim.

It allows the perpetrators to get away with sexual assault penalty under POCSO Act if they do not undress the victim or cause the victim to be undressed. An offender may give effect to maleficent intentions with the only caveat of not touching the skin of the child directly. This would protect him from any liability under the POCSO Act.  

In India, the conviction rate under POCSO is abysmally low already due to many factors. On top of that, strict interpretations of offences under the Act would make it impossible to convict people of sexual assault under the legislation.

The Hon’ble court sought to “balance the punishment” with the gravity of the offence committed. However, punishing an accused proven of committing a stricter offence under a liberal provision frustrates the entire purpose of enacting special legislation in the first place. Instead of achieving the balancing result as intended, this judgment has the potential of unleashing cobra effect.[2]  

Leaves Minor Boys with no Remedy:

In this particular case, the offender was convicted and punished under Sec 354 of the Indian Penal Code, which lays down the offence of Outraging the Modesty of a Woman. Here, because the victim was a girl, the court could rely on this special provision. However, one of the key characteristics of the POCSO Act is that it is a gender-neutral legislation. This means that the legislation seeks to provide an equal and effective remedy to minors — both male and female – against sexual offences.

Under the Indian Penal Code, we do not have a special provision that protects men from sexual violence/ assault. Given the newfound criteria established by the court under POCSO Act, in case of sexual assault committed on minor males without disrobing, they would be left with no remedy to seek from elsewhere.

Conclusion:

Civilised nations of the world treat the offence of child sexual abuse with utmost urgency and stringency. In fact, non-physical activities of a sexual nature are also included in the definition of sexual abuse in many countries.^[3] In legal systems around the globe, children are sought to be protected because of heightened susceptibility to abuse and defencelessness.

A judgment of this nature coming from one of the oldest established High Courts in the country does not merely let go of one perpetrator, but paves way for many others to walk away scot-free. It throws away the developments in child rights jurisprudence right out of the window. It sets us back by leaps and bounds at a time when we should be tightening the grip around such offenders.

The author, being a child rights supporter, sincerely looks down upon this interpretation. She strongly suggests that the matter be heard in an appeal and rectified by the appropriate forum. It is a humble proposal that corrective action is taken at the earliest, lest we should be willing to let our children live in a world unsafer than it was yesterday.  

[1] Satish v. State of Maharashtra,  Cr. Appeal No. 161 of 2020, available at: https://www.livelaw.in/top-stories/pressing-breasts-without-disrobing-not-sexual-assault-pocso-bombay-high-court-168845

[2] The Cobra Effect, The Hindu (Mar 1, 2019), (accessed on Jan 25, 2021, 7:36 pm) https://www.thehindubusinessline.com/markets/the-cobra-effect/article26409330.ece

[3] Laura K Murray, Amanda Nguyen et. al, Child Sexual Abuse, 23 Child and adolescent psychiatric clinics of North America, 321 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4413451/#:~:text=According%20to%20the%20US%20Centers,each%20of%20the%20boldface%20terms%2C