What Makes POCSO Rulings By Bombay HC Controversial? Lawyers Speak

POCSO Rulings By Bombay HC: Two recent verdicts by the Bombay High Court, that came within a fortnight alone, have become the latest catalysts of social media outrage. Especially since they are of what can be deemed the most sensitive nature: sexual crimes against minors. Both verdicts, delivered by Justice Pushpa Ganediwala of the Bombay HC's Nagpur bench, are directly related to the Protection of Children from Sexual Offences (POCSO) Act. 

Justice Ganediwala's first ruling, which observed that groping a minor's breast over the clothes did not account for sexual assault under POCSO since "skin-to-skin" contact was necessary, had drawn wide public ire. Eventually, the Supreme Court stepped in to put a stay on the controversial judgment. But mere days later, Justice Ganediwala ruled that a 50-year-old accused unzipping his pants and holding a five-year-old's hand was (again) not assault under POCSO but sexual harassment.

Why have these two POCSO rulings by Bombay HC, delivered consecutively, raised eyebrows as to the judiciary's perspective towards the safety of children from sexual crimes? Does it set an unwelcome precedent going forward? What do such verdicts communicate to criminals and potential harassers?  

POCSO Rulings By Bombay HC: What's The Controversy? 

Though written law dictates classifications, assault and harassment in real-time are understood to be vast umbrellas constituting activities that may fall under the ambit of mental, physical and several spheres beyond. Women or queer folx who face hostility - simply for their gender - will be able to testify that oppression often evades strict categorisation.

Katyayini, a Delhi High Court Advocate, feels the Bombay HC's second judgment of unzipping pants not accounting for assault, sets the wrong precedent. "It defeats the very purpose of POCSO Act and also disregards Section 29 of the POCSO Act which provides for the presumption of guilt in offences under sections 3, 5, 7, and 9 of the POCSO unless the contrary is proved."

<Section 29 of the POCSO Act reads: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.>

The Delhi HC Advocate explains further, "Even if a person has attempted to commit offence, he would be presumed guilty unless he proves himself innocent. Therefore, in this case, the person should be convicted under POCSO Act. As per my understanding, it is bad if someone touches you without your consent but it is not as serious if they fail in finishing their job. The State should file an appeal against the Judgment." 

The implication of POCSO's Section 29, which seeks to contextualise cases of sexual assault against minors, puts the onus on the accused to prove innocence. It provides a safety net for children lacking the full extent of the understanding of consent. Live Law points out POCSO is an especially "victim oriented statute" where "injury caused to the person of the victim assumes more importance." Does Bombay HC's ruling then drive away from that point? 

The abstraction of 'sexual intent' in assault cases too was a high point of debate with regard to the Bombay HC's judgment. How does one draw the line of intent? What separates its objectivity from subjectivity? Is it even possible for such distinction to exist? Supreme Court lawyer Nappinai NS, commenting on the first now-stayed ruling tells us that "sexual intent" was clearly made out in the case. Read more here. 

What Are The Points Of Contention? 

In the "skin-to-skin" contact judgment, which has now been stayed, the court had ruled the case as an instance of outraging a woman's modesty. The second case meanwhile ruled sexual harassment. Both verdicts said sexual assault under POCSO would not be applicable to either case.   

Let's break down the legal definitions of all three: sexual assault under POCSO and sexual harassment and outrage of modesty under the Indian Penal Code.

Section 7 of the POCSO Act reads: 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.

Section 354 A 1(i) of the IPC mentions sexual harassment as: physical contact and advances involving unwelcome and explicit sexual overtures.

Section 354 of the IPC mentions outrage of modesty as: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty. 

One other point of contention in both cases was the distinction of punishment terms. While POCSO pegs punishment for sexual assault between three to five years, IPC pegs punishment for sexual harassment at up to three years and modesty outrage at a minimum of one year. Is then a purportedly lighter sentence for the accused in child crime cases justified?

Advocate Katyayini says since POCSO is a Special Act, it has an overriding effect on all other laws. The same, in fact, was upheld by the Bombay HC itself during a case under POCSO last year.  

Do POCSO Rulings By Bombay HC Cast Skepticism Over Child Safety? 

Seeing how there is an alleged overlap of provisions under POCSO and IPC, in the context of the Bombay HC's two rulings, is it a time for law reform? Should POCSO be modified? Nappinai says it is absurd for POCSO to be diluted in any way "because firstly it negates the purpose of the act, secondly it is not enforceable then.” 

Advocate Katyayini, on the other hand, is of the opinion that "Children are becoming easy prey because of their tender age and physical vulnerabilities... There is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country. If the court is finding it difficult to interpret the actual meaning of the POCSO Act then it really requires a reformation." 

The POCSO rulings by Bombay HC have attracted a plethora of opinions from across the legal board as well as from social activists and the general public. A holistic understanding for many may be limited given legal jargon and context, but it nevertheless doesn't discount the urgent call for action in crimes against a population as vulnerable as minors. 

Views expressed are the author's own.