Bombay HC ruling a travesty of law

Restrictive reading makes a mockery of POCSO Act

There can be few other cases of a literal interpretation of the law, defeating its spirit and intention, than the view taken by the Nagpur bench of the Bombay High Court of a provision under the Protection of Children from Sexual Offences (POCSO) Act. Justice Pushpa Ganediwala held that an assault on a minor would not qualify as sexual assault unless there was skin-to-skin contact with sexual intent. The case was against a 28-year-old man who had lured a 12-year-old girl to his house, groped her, and had tried to remove her salwar. A sessions court had sentenced him to three years in jail. The High Court ruled that the offence would constitute only an attempt to outrage the modesty of a woman, and not sexual assault under the POCSO Act, and upheld the conviction only under sections that carry a lesser sentence of one year under the IPC.

The Supreme Court has stayed the judgement. What is surprising is that the judgement was made at all. The POCSO law defines sexual assault as a non-penetrative act with sexual intent involving physical contact with a specified part of the body. To insist that the offence does not happen if the victim is dressed and there is no skin-to-skin contact is illogical and perverse. The court observed that “it is not the case of the prosecution that the appellant removed her (victim’s) top…the act of pressing breast, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top, would not fall in the definition of sexual assault." Extending that logic, if a person wears a glove and makes an inappropriate contact, that may not be considered actionable under the law.

This is a very restrictive interpretation and mocks not just the law but even common sense. Strangely, it has a precedent. In 2014, a Delhi court had acquitted a man, who took a girl to the bathroom and tore her jeans, under the POCSO law but convicted him under the IPC, though the law recognises “any…act with sexual intent which involves physical contact without penetration” to be sexual assault. These judgements set bad precedents and dilute the provisions of the law which seeks to protect children from sexual assault. They send a wrong message to the lower courts, the police and the society at large. The Bombay High Court judge also said that the case demanded higher standards of proof as it entailed three to five years of imprisonment. What is most surprising is that the judgement was delivered by a woman judge. It underlines the need for better awareness of such crimes even among members of the judiciary.