The Clothed Interpretation Of Sexual Assault Against Children In India
By Kanika Arora
Since the enactment of The Protection of Children Against Sexual Offences (POCSO) Act in 2012, India has seen unprecedented momentum towards safeguarding the interests of children against sexual abuse. The gravity of sexual offences committed against children has been well-acknowledged by the legislature through POCSO Act which provides for stringent punishments against offences like sexual assault, sexual harassment, and child pornography to ensure deterrence towards their commission. However, the mantle of any act can only be deciphered by its implementation. Although POCSO provides for child-friendly procedures and special courts with trained implementers¹, the potential of this act has been mired by the patriarchal conservatism of judges who at times show leniency towards the abusers and prefer to invoke the stringent provisions against sexual offences only when the harm done is either tangible or portrays barbarism which is despicable enough to shake the conscience of the society, thereby, undermining the impact of sexual abuse on the mental and emotional well-being of the child victims.
The recent judgments of the Bombay High Court head in a similar direction, where a new principle of “skin-to-skin” contact has been introduced to interpret the POCSO Act in a manner that benefits the abuser more than the child. The Nagpur Bench of the Bombay High Court led by a female judge has made to the headlines owing to the highly controversial judgments which follow almost a similar interpretation of the POCSO Act. The interpretation has received much condemnation from the citizenry and legal community resulting in the interference by the Supreme Court, which immediately put a stay on one of these judgments.²
In the first case, the offender had taken the 12-year old victim to his house on the pretext of giving her guava where he pressed her breasts and attempted to remove her salwar (bottoms). The local court convicted the offender for the offences of outraging the modesty of a woman under the Indian Penal Code along with sexual assault of a child under the POCSO Act³. However, the Nagpur Bench of the High Court quashed the charges under the POCSO Act holding that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he put his hand inside the top and pressed her breast, would not fall under the definition of ‘sexual assault’ as there is no direct physical contact i.e. skin-to-skin contact. Nevertheless, the bench stated that the act of the offender would continue to fall under the definition of the offence of outraging the modesty of a woman⁴ under the Indian Penal Code.⁵
In the second case, the offender illegally trespassed in the victim’s house, held the hand of the five-year-old victim to take her into bed, and unzipped his pants in front of her. The local Court convicted the offender for the offences of outraging the modesty of a woman under the Indian Penal Code along with sexual assault and harassment of a child under the POCSO Act.⁶ As the victim was younger than 12 years of age, the offender was also convicted for aggravated sexual assault under the POCSO Act.⁷ However, the Nagpur Bench of the High Court acquitted the offender of these charges on the basis that given the nature of the offence and gravity of punishment prescribed under the POCSO Act, holding hands of a child and unzipping his pants is not sexual assault.⁸
1. Is Sexual Assault Different For Minors And Adults?
Through these judgments, the Nagpur Bench has attempted to create a distinction between the definition of sexual assault under the POCSO Act and the Indian Penal Code on the basis of the nature of the “physical contact” between the abuser and the victim. While interpreting Section 7 of the POCSO Act that defines sexual assault against children, the court stated that as the punishment of the offences under this section is grave, the act committed under it must be such where there is a direct contact i.e. the abuser touches the skin of the victim. On the basis of this interpretation, the court ruled that the act of touching the breast of the victim from above her clothes is not a direct physical contact and such touching is not grave enough to face the severe punishment as prescribed under the POCSO Act but can be covered under section 354 of the IPC as according to the judge this section provides for a lesser punishment. The essential questions that come in the mind of the reader of this judgment are:
● Whether there is a distinction between section 7 of POCSO and section 354 of IPC?
● Whether such a distinction can be applied for awarding lenient punishments to the offenders?
Before the enactment of the POCSO Act, the punishment for the commission of sexual offences against minor girls was covered under the Indian Penal Code. Since 2013, the punishment for sexual offences committed against a male child is governed under the POCSO Act and the offences against a female child, by both IPC and the POCSO Act.
Section 7 of the POCSO Act defines sexual assault as the touching of the vagina, penis, anus or breast of the child or doing any other act with sexual intent which involves physical contact without penetration or making the child touch or perform any of the acts as mentioned above. Whereas, section 354 of the Indian Penal Code lays down the punishment for assaulting or using criminal force against a woman with intent to outrage her modesty. The Delhi High Court while interpreting the two sections has observed that:⁹
The acts involving ‘physical contact’ by touching ‘with sexual intent’, the vagina, penis, anus or breast of a child are covered within the mischief of the offence of “sexual assault” defined in Section 7 of the POCSO Act. These very acts, under the general criminal law, have all along been treated as assault or use of criminal force (as the case may be) against a woman (not a boy or man) being of any age so as to attract the penal provision under Section 354 IPC.
Thus, there is an overlap in the offences of “assault or criminal force to woman with intent to outrage her modesty” punishable under Sections 354 IPC on one hand and the offence of “sexual assault” defined in Section 7 of POCSO Act.
A close reading of the two sections would reveal that while Section 354 of the IPC is silent on the definition of “modesty” and “outrage”, giving unfettered power to the courts to decide whether the modesty of a woman has been outraged on case to case basis¹⁰, the POCSO Act specifically defines the acts that may result in sexual assault of children thereby clearly identifying the scope of the actions that can be offences under this section. Apart from reducing the ambiguity in the POCSO Act, the legislature has also employed a zero tolerance-approach towards sexual offences committed against children by providing for stricter punishments. The punishment for sexual assault under Section 8 of the POCSO Act attracts imprisonment for a term that cannot be less than three years. Whereas under Section 354 IPC the minimum punishment is the imprisonment of one year only. Under POCSO, a further distinction has been carved within the offence of sexual assault depending upon the age of the victim. If such an assault is perpetrated on a child less than 12 years of age, the minimum punishment is increased to imprisonment for five years.¹¹
A bare perusal of these sections along with their interpretation by the Delhi High Court shows that section 7 is a derivative of section 354, providing for stricter punishments depending upon the age of the victim. Further, the courts while deciding on similar facts in their earlier judgments have not identified any substantial difference in the nature of offences covered under the two sections. In the case of Laxmikant v. State of Maharashtra, the Aurangabad bench of the same High Court ruled that catching hold of a minor and touching her breast amounts to sexual assault under section 7 of the POCSO Act and Section 354 of the IPC.¹² On similar lines, the Calcutta High Court has held that mere touching of the vagina of the minor will amount to the conviction of the offender under section 7 of the POCSO Act.¹³ The High Court of Kerala has gone one step ahead in stating that even embracing a minor in the presence of sexual intent on part of the perpetrator is sufficient for such an embrace to fall under section 7 of the POCSO Act.¹⁴ Therefore, according to the courts in India, what is essential for an offence to be covered under POCSO Act is the mala fide intention of the offender accompanied with the actus reus (the physical touch). It is not nature of the touch that determines the commission of the crime rather the sexual intent behind the act so committed.
The next question that comes into consideration is whether the court can award a lesser sentence if the offence is covered under both POCSO and IPC? The legislature has made its intention of employing maximum punishment against sexual offenders limpid by introducing section 42 in the POCSO Act which states that the offender of any sexual offence punishable under both POCSO and IPC would receive punishment under the statute which provides punishment of a greater degree. Therefore, if the offence is of nature as mentioned in the provisions of POCSO, the charges can be framed for both POCSO and IPC but if the offence mentioned under POCSO has higher punishment, the provisions of POCSO will be applied.
From the above discussion, it becomes evident that in both the cases before the Nagpur High Court, the acts committed by the offenders were of sexual assault which was correctly charged under both section 8 of the POCSO Act and section 354 of the IPC. As section 8 provides for stricter punishment, they were correctly punished under POCSO Act by the special court, and the High Court faulted in awarding punishments under the IPC instead of the POCSO Act.
2. The Hesitation Of Sentencing Under POCSO Act
While some courts in India have actively utilised the provisions of the POCSO Act in awarding sentences to the offenders, the concern regarding the presence of a minimum prescribable sentence under the act has led many courts to take a nonchalant approach towards these crimes, thereby defeating the purpose of this act. The supposed conundrum faced by judges can be enunciated by the following excerpt from the judgement of a district court in New Delhi:
The scope of section 7 is quite large and it includes from touching of vagina to hand or any other part of the body of a female child. Indisputably, touching the vagina is graver than touching the breast of a female child. Similarly, touching the breast is graver than touching the waist of a female child. Similarly, touching the waist is graver than touching the arm of a female child. But unfortunately, the same minimum sentence i.e. three years is provided for all the above acts.
No discretion has been given to the Courts to impose less sentence than the period of three years in any circumstances. In other words, the legislature has considered that the same minimum sentence i.e. three years imprisonment should be awarded to the offender irrespective of the fact whether he has been held guilty for touching the more sensitive parts of a child, like vagina, anus or breast or he has been held guilty for touching other less sensitive parts of the body of the child. In other words, the legislature has ignored the gravity of offence while determining the quantum of sentence.¹⁵
Although the gains of employing minimum sentences in criminal provisions are debatable, the practice of introducing new principles just to make the sentence more lenient sets a dangerous precedent towards giving such discretion to the courts.
3. The Impact Of Generous Interpretations On Gender-neutrality Under The Pocso Act
Currently, the POCSO Act which was enacted in 2012, is the only act that acknowledges the offence of non-penetrative sexual assault against males in India. While the scope of this act is limited to males under the age of 18, it is a stepping stone towards identifying a deep-rooted predicament of sexual violence in our patriarchal society. If the rule of “skin to skin” touch is employed will charging offenders under the POCSO Act for the offence of sexual assault against minors, it will become difficult to bring charges of crimes involving inappropriate touching or groping of boy children from above their clothes under the Indian legal system, as female victims might still have some recourse under the IPC, the male victims till now do not have any recourse under the IPC or any other legislation. Thus, making the male child victims the biggest sufferers who will lose their freshly found voice against their abusers.
The Supreme Court of India has time and again reiterated that sexual exploitation and sexual abuse of children are heinous crimes that need to be addressed effectively.¹⁶ It is also quite manifest that the legislature has intended to protect the child from any kind of sexual assault and harassment.¹⁷ The introduction of these punishments without any sub-categorisations elucidates the intention of the Parliament to highlight the severity of these offences that is dependent upon the innocence and vulnerability of the victims on one hand and the sexual intent of the offender on the other, regardless of where the victim was touched and what kind of criminal force was applied against them. However, the current attitude regarding sexual offences is that “grave” offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and gender-based physical violence but not the various other forms of sexual violence which have similar ramifications on the victims.¹⁸
The protection of all minors, irrespective of their gender, as envisioned by the legislature cannot be guaranteed only by enacting laws with stricter punishments till the time the courts correctly interpret these laws and actively award these punishments to the perpetrators of the crime. Such tactless interpretations invalidate the horrific experiences of women and children by bucketing incidents of non-penetrative sexual violence against them as “minor offences”. By introducing the “skin-to-skin” principle, the High Court of Bombay has not only trivialised the impact of such offences on the physical, mental and emotional well being of a child victim but has also indirectly given encouragement to offenders to commit such crimes.
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[1] Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry Of Women And Child Development, Accessed at https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf.
[2] Supreme Court Stays Bombay HC Order on ‘Skin-to-Skin’ Contact for Sexual Assault under POCSO Act, The Hindu, Accessed at https://www.thehindu.com/news/national/supreme-court-stays-bombay-hc-order-on-skin-to-skin-contact-for-sexual-assault-under-pocso-act/article33675124.ece.
[3] The Protection of Children from Sexual Offences Act, 2012, §8, №32, Acts of Parliament (2012).
[4] The Indian Penal Code, 1860, §354, №45, Acts of Parliament (1860).
[5] Satish v. The State of Maharashtra, Criminal Appeal №161 of 2020.
[6] The Protection of Children from Sexual Offences Act, 2012, §8, §12, №32, Acts of Parliament (2012).
[7] The Protection of Children from Sexual Offences Act, 2012, §10, №32, Acts of Parliament (2012).
[8] Libnus v. The State of Maharashtra, 2021 SCC Online Bom 66.
[9] Gaya Prasad Pal alias Mukesh v. State, Cri. Appeal 538 of 2016.
[10] Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC 371.
[11] The Protection of Children from Sexual Offences Act, 2012, §10, №32, Acts of Parliament (2012).
[12] Criminal Appeal №148 of 2017.
[13] Nandan Saha v. State Of West Bengal, Cra №664 Of 2014.
[14] Crime №503/2014 Of Kumbla v. By Adv. Sri Kodoth Sreedharan, Cri Appeal №898 of 2015.
[15]State v. Mohd. Zahid, Sessions Case №57515/2016.
[16] Ms. Eera Through Dr. Manjula v. State (Govt. of NCT of Delhi), (2017) 15 SCC 133.
[17] Bijoy alias Guddu Das v. The State Of West Bengal, Cri. Appeal 663 of 2016.
[18] Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr., Cri. Appeal №329 of 2021.
The author is a final year LL.B student at the Campus Law Centre, University of Delhi.
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