Artificial And Unreasonable Veil of Legal Protection- A Critic of Bombay High Court's POCSO Judgment

In a cruel irony, the Bombay High Court chose the National Girl Child Day to deliver an absurd interpretation of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO'). One need not be trained in law to understand that physical contact with breasts would not be limited to 'skin to skin' contact. However, according to the Bombay High Court, grabbing a minor's breast would not constitute a sexual assault, "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…"

Section 7 of the POCSO Act, defines 'sexual assault' as-

"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."

The necessary ingredients that constitute the offence are as follows. Firstly, there must be physical contact without penetration. Physical contact is when a person touches the vagina, penis, anus or breast of a child or makes the child touch the vagina, penis, anus or breast. Secondly, the physical contact must be made with sexual intent.

In this case, the accused in the pretext of giving the prosecutrix a guava took her to his house. He then proceeded to press her breast and attempted to disrobe her. These are not disputed facts. The only facts in dispute are whether the accused attempted to remove her salwar or knicker and whether the accused inserted his hand inside her salwar to press her breast. With regard to the analysis of Section 7, it is not in dispute that the prosecutrix started to scream once this 'assault' took place. Neither is the fact that the accused pressed his hand on her mouth to silence her nor the fact that the accused lied to the prosecutrix's mother about the whereabouts of her daughter in dispute.

The learned single judge believes that these facts do not demonstrate or meet the necessary ingredients of Section 7 of POCSO. According to the Court, "Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required."

Given this context, I argue that the Court erred in its judgment for the following reasons. Firstly, the POCSO Act casts a greater burden on the accused than on the prosecution. Secondly, the Act might be a stringent legislation, but it is also a protective and beneficial legislation. Therefore, it must be interpreted in a manner that protects the interest of children.

According to Section 29 of the POSCO Act, when a person is prosecuted under Section 7, it is presumed that the person has committed the offence. On the other hand, Section 30 presumes that the accused possessed a culpable mental state during the commission of the offence. Clearly, a joint reading of these provisions places the burden of proof on the accused to prove that he is innocent. Moreover, Section 30(2) clarifies that the accused must rebut these presumptions 'beyond reasonable doubt' rather than on a 'preponderance of probabilities'.

Even for a moment if we consider the artificial distinction between skin to skin touching and groping over clothes to be a real distinction, then it is still the burden of the accused to prove beyond reasonable doubt that the skin-to-skin touch did not take place. As suggested earlier, it is undisputed that the accused has pressed the breast of the minor. It is alleged that he has tried to dis-robe her. In my opinion and with the knowledge of these limited facts, to then state that there was no skin-to-skin sexual assault, is to argue on the preponderance of probability. It does not fulfil the greater burden of disproving the assault beyond reasonable doubt. Given the fact, that the accused pressed the breast of the minor over her clothes with sexual intent and that the accused allegedly attempted to dis-robe the prosecutrix, it does leave a reasonable doubt in my mind that the accused might have indulged in physical 'skin-to-skin' sexual assault. This reasonable doubt is enough to convict the accused under the Act. However, I must admit that I am making this case only based on the facts presented in the judgment.

On the other hand, the more obvious reason to disagree with the judge is on her view that considering the stringent nature of the Act, "stricter proof and serious allegations are required". Apart from being a stringent legislation, the POCSO is also a protective legislation that has been enacted as a special provision pursuant to Article 15(3) of the Constitution. According to the Statement of objects and reasons and the Preamble, the POCSO Act is a self- contained comprehensive legislation that provides for protection of children from sexual assault, harassment, etc.

While, interpreting Section 2(d) of the POCSO Act, in Eera through Manjula Krippendorf vs. State (Govt. of NCT of Delhi) and Ors [AIR 2017 SC 3457], Chief Justice Dipak Mishra held that "While interpreting a social welfare one has to be guided by the 'colour', 'content' and the context of statutes. The Judge had to release himself from the chains of strict linguistic interpretation and pave the path that serves the soul of the legislative intention and in that event, he should become a real creative constructionist Judge".

In this case, nobody expected the Bombay High Court to be a creative constructionist. The Court was only expected to serve the soul of legislative intention and not to chain itself to an artificial distinction. However, I urge you once again to assume for a moment that the Section 7 could be reasonably interpreted in a manner that differentiates between skin-to-skin and skin-to-clothes sexual assault. I believe, that even then, the Court has erred in its judgment. This is because, in the above judgment while analysing the provisions of the POCSO Act, the Supreme Court held that-

"When two constructions were reasonably possible, preference should go to one which helps to carry out the beneficent purpose of the Act; and that apart, the said interpretation should not unduly expand the scope of a provision. Thus, the Court had to be careful and cautious while adopting an alternative reasonable interpretation."

Lastly, even beyond the abovementioned reasons, the Court has erred by limiting 'physical contact' to only skin-to-skin contact. They have drawn an unreasonable distinction based on no justification or precedent to create an artificial difference between skin-to skin and skin-to-clothes sexual assault. In doing so, the Court has turned a blind eye to the realities of rampant child sexual abuse by arguing that a mere piece of cloth can protect a child from sexual assault, while the very same piece of cloth legally protects an abusive criminal!