-By Sarthak Bhardwaj and Rupam Jha
Introduction:
In India, every sensitive socio-political development finds its way to the judiciary. The Supreme Court and the various high courts are constantly grappling with several matters of public importance. However, seldom do judgements assume the centre stage and become a subject of controversy. This is precisely what happened recently in the extremely contentious case of Satish v. State of Maharashtra. This judgement of the Bombay High Court’s Nagpur bench has generated a heated debate over its holding that molestation without “skin-to-skin” contact does not constitute ‘sexual assault’ under the Protection of Children From Sexual Offences Act, 2012 (“POCSO Act”). This judgement is the subject of enquiry of this article.
This article is divided into four sections. In the second part, it shall briefly discuss the judgement and understand the court’s reasoning. The third part shall proceed to analyse the verdict and argue that the court employed a flawed interpretation and set a dangerous precedent. Finally, the article shall conclude by highlighting a way forward.
Understanding the judgement:
A single judge Nagpur Bench of the Bombay High Court heard an appeal against the Sessions Judge’s order convicting the accused under Sections 354, 363, and 342 of the Indian Penal Code (“IPC”). As per the facts of the case, the accused allured the victim to his house under some false pretexts and pressed the victim’s breasts while attempting to disrobe her ‘salwar’. The specific question for the court to consider was whether this act falls under the definition of ‘sexual assault’ under Section 7 of the POCSO Act.
According to Section 7, inter alia, anyone who touches the vagina, penis, anus or breast of a child with sexual intent or does any other act with sexual intent is said to have committed the offence of sexual assault. This includes physical contact without penetration. Hence the necessary ingredients to constitute the offence of sexual assault under the POCSO Act are: firstly, sexual intent; secondly, touching private parts of a child or making a child touch such parts; thirdly, any other act with sexual intent, involving physical contact but no penetration.
The court acquitted the accused from the charge of sexual assault under Section 7 of the POCSO Act and upheld the conviction under Section 354 of IPC, which criminalises the use of force against a woman with the intention of outraging her modesty. An important differentiation between Section 354 of IPC and Section 7 of the POCSO Act is that the former attracts a minimum punishment of only one year, whereas the minimum punishment for the latter is of three years. The reasoning adopted by the court to acquit the accused from the charge of sexual assault was thus: firstly, the prosecution has not argued that the accused removed the top before molesting the victim; secondly, recognizing that punishment must be proportional to the offence committed, the court held that because punishment under Section 7 is stringent, a higher threshold of allegations and proof is required; thirdly, due to unclarity over whether the accused inserted his hand inside the victim’s top to molest her, the lack of ‘skin to skin’ contact prevents the offence under Section 7 from being made out. For these reasons, the court held the accused guilty of outraging the victim’s modesty under Section 354 of IPC, but not of sexual assault under Section 7 of the POCSO Act.
Flawed interpretative methodology:
The court reading the requirement of a ‘skin to skin’ contact as a pre-condition to constitute the offence of sexual assault under Section 7 of the POCSO Act is problematic for multiple reasons.
Firstly, the statute is silent on the requirement of a ‘skin to skin’ contact. The relevant part of Section 7 merely says that, “…or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”. The court has wrongly interpreted “physical contact” to mean ‘skin to skin contact’. Furthermore, Section 7 begins with the phrase “whoever, with sexual intent touches…”. The term ‘touch’, too, does not imply only skin-to-skin contact. Thus, since it was clearly established that the accused pressed the victim’s breasts, the offence of sexual assault was complete, irrespective of whether the molestation was over or under the clothes. Although, the distinction created by the Bombay High Court is unprecedented in India, it is interesting to note that foreign common law jurisdictions like England, too, make no distinction between physical contact and skin-to-skin contact. Section 79(8) of the Sexual Offences Act of the United Kingdom ascribes a threefold definition to the term ‘touching’: firstly, “with any part of the body”; secondly, “with anything else”; thirdly, and most importantly, “through anything”. In the case of R v. H, the England and Wales Court of Appeal held that, “Where a person is wearing clothing, we consider that touching of the clothing constitutes touching”.
Furthermore, as discussed briefly earlier, the court’s reluctance in punishing the accused under Section 8 of the POCSO Act was aggravated by the stringent punishment of a minimum of three years under the same – as against the minimum punishment of one year under Section 354 of IPC for outraging the modesty of a woman. This consideration of the court flies in the face of Section 42 of the POCSO Act. Section 42 deals with ‘alternate punishment’ and stipulates that when an offence is punishable under both the POCSO Act and certain sections of the IPC (including, notably, Sections 354A and 354B), the offender, if found guilty, is to be punished under the act that provides a greater punishment.
It is evident from the provision that when the court finds an accused guilty under both POCSO Act and any of the aforementioned sections of the IPC, then, notwithstanding anything contained in any law, the offender shall be liable for the punishment greater in degree. As established previously, the definition of ‘sexual assault’ under Section 7 only requires physical touch with sexual intent. The embellishment of ‘skin to skin contact’ is a judicial innovation contrary to the legislative intent. The actions of the offender fall well within the definition of ‘sexual assault.’ Therefore, the court could punish the offender under both Section 8 of the POCSO Act, as well as under Section 354 of IPC for outraging a woman’s modesty. A literal reading of Section 42, and the usage of the word ‘shall’ confirm that when confronted with a choice with regards to the punishment, the court must mandatorily prescribe punishment that is of a greater degree. In this case, the POCSO Act provides a greater punishment. However, the court has used this very fact to choose a punishment of a lesser degree.
Secondly, under Section 29 of the POCSO Act, the burden of proof is reversed. Owing to the special nature of the legislation, the general rule of “innocent till proven guilty” shifts and the burden of proof is placed on the accused. Under Section 29, when an individual is prosecuted for an offence under Sections 3, 5, 7, or 9 of the POCSO Act, it is mandatory for the court to presume that the accused has committed or attempted to commit the offence until the contrary is proven.
In Justin Renjith v. Union of India, the Kerala High Court, while upholding the constitutionality of Section 29 of the POCSO Act held that once foundational facts — like the victim being a child and the alleged incident’s occurrence — are established, the onus is on the defendant to rebut those claims. Therefore, in the present case, since it was unequivocally established that the accused had molested the victim and that the victim was a child, the court’s reasoning that, “stricter proof and serious allegations are required” to convict the accused for sexual assault is incorrect, as the onus of innocence shifted on the accused under Section 29.
Thirdly, the judgement sets a disconcerting precedent as making ‘skin-to-skin’ contact a qualifier to constitute the offence of sexual assault under the POCSO Act, effectively grants impunity to those molesters who grope a child over his or her clothes. Given the sensitive nature of offences under the POCSO Act, this precedent sets a poor example for trial courts and law enforcement authorities. This interpretation of the statute, if permitted to subsist, shall cause a gross miscarriage of justice, as it undermines the true intent behind the POCSO Act, that is, to prevent instances of sexual abuse against children by, inter-alia, imposing a strict punishment.
Conclusion:
The reasoning adopted by the court goes against the legislative intent behind the POCSO Act. When contrasted with Section 354 of the IPC, the usage of specific words is conspicuous in Section 7 of the POCSO Act. If the legislature wished to restrict the scope of Section 7, it would have explicitly mentioned the requirement of a skin-to-skin contact. Therefore, when the legislature provides for terms like “touch” and “physical contact”, the court can not apply an interpretive methodology to severely restrict the punitive scope of this Section and trivialize legal provisions aimed at providing deterrence against instances of sexual assault against children. Taking note of these problematic observations, the National Commission for Women has, thus, decided to challenge the decision of the Bombay High Court in the Supreme Court. However, it was upon the submissions of the Attorney General that the Supreme Court stayed the judgement until a proper petition challenging it is filed. The appeal will present a timely opportunity before the apex court – to provide an interpretation that falls in line with the vision of the legislature.
[The authors Sarthak Bhardwaj is a third year law student at VIPS, IP University and Rupam Jha is a third year law student at Symbiosis Law School, Pune. ]