The Judiciary is the guardian-protector of the constitutional rights of the people. It is responsible for interpreting the ‘real meaning of the law’ and applying it to specific cases. The power of judicial interpretation inherently provides the judges with the discretionary power to interpret the law effectively to achieve the end sought by the legislative drafters. However, this discretion also leaves scope for misinterpretation of certain terms of the statutes resulting in varied applications of the law conflicting with the object of the legislation. Several recent controversial decisions under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) have resulted out of interpretations that go against the very spirit of the law. This not only raises the need to revisit the true purpose that the Act sought to achieve but also highlights the necessity to sensitize judges that deal with sensitive matters concerning child rights and gender.
REVISITING THE PURPOSE OF POCSO
The POCSO Act is gender-neutral legislation that seeks to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of special courts for the trial of such offences and matters connected therewith. The Act is comprehensive legislation that safeguards the interests of the children by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts. It lays down stringent measures to tackle the increasing cases of Child Sexual Abuse (“CSA”) in India.
Apart from recognizing all children regardless of gender as possible victims of CSA, another striking feature of the Act is the wide scope it gives to sexual offences against children by classifying them under various categories. These include penetrative and non-penetrative assault, aggravated sexual assault, sexual harassment, and pornography. The Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 by the Ministry of Women and Child Development further emphasize that the POCSO Act “recognises almost every known form of sexual abuse against children as punishable offences.” Further, one of the guiding principles under the National Policy for Children, 2013 was that “the best interest of the child is the primary concern in all decisions and actions affecting the child” which includes all decisions taken by the courts under POCSO.
It is clear that the provisions under POCSO were formulated with the intent of protecting the children from a wide range of sexual offences and deterring the commission of such offences. This object of the Act was reiterated by the Supreme Court in Alakh Alok Srivastava vs Union of India. However, in instances where the application of the Act is subject to the interpretation of the judges, there is a possibility of the true spirit of the Act being overlooked while interpreting certain ambiguous terms under the Act. The judges dealing with sensitive matters concerning a child’s rights should ensure their interpretations are aligned with the actual purpose of the law to ensure fair delivery of justice and prevent the setting of erroneous precedents in law.
THE RECENT CONTROVERSIAL DECISIONS ON THE APPLICATION OF THE POCSO ACT
The POCSO Act is a special law put in place to protect children from wide-ranging sexual offences in varying forms. However, an important aspect in the successful application of the Act is the apt interpretation of its provisions by the Judiciary. A failure to do so would result in the violation of the spirit of the special laws formulated and steps taken to protect children due to lack of proper implementation, rendering the system ineffective to protect the children. Recent instances have highlighted such problematic interpretations of the law which threaten the very object it seeks to achieve.
The first set of cases was delivered by the Bombay High Court regarding the interpretation of Section 7 of the Act. In the case of Satish Ragde vs the State of Maharashtra, the Court had laid down a contentious decision that the ‘pressing of breast’ and ‘removal of salwar’ of a child does not fall within the ambit of ‘sexual assault’ as defined under Section 7 of POCSO Act and is thus not punishable under Section 8 of the Act. Further, the Court also opined that a ‘direct physical contact (skin to skin contact) with sexual intent without penetration’ is an essential ingredient of the offence. The Court held that a lack of physical contact would result in the act being classified under a minor offence under Section 354 of the Indian Penal Code. A similar interpretation was followed by the same bench in a prior case (Libnus vs the State of Maharashtra) where the act of holding the hand of a five year of girl and unzipping the pants by the accused in addition to asking the child to sleep with him, did not constitute ‘sexual assault’ under Section 7, 8 of the POCSO Act due to an absence of physical contact. However, the Supreme Court had initially stayed these orders and later quashed them stating that ‘sexual intent’ is the essential ingredient to qualify as sexual assault under Section 7 and ‘skin to skin contact’ has no relevance in establishing sexual assault.
The Bombay High Court had taken a narrow and restrictive approach by interpreting the law in its literal meaning. Such a regressive interpretation that contradicts the very purpose of the law is counterproductive. The Supreme Court had stated that “the intention of the legislature cannot be given effect to unless the wider interpretation is given.” Therefore, the interpretation of the High Court that the severity of the crime is based on direct physical contact failed to address the seriousness of the sexual offence and posed as a dangerous precedent threatening the very spirit of the law. Further, the entire object of POCSO is to protect children from CSA and the High Court reasoning not only results in the accused escaping the shackles of the law but also trivializes such behaviour against children.
Further, in the case of Sonu Kushwaha vs State of Uttar Pradesh, the Allahabad High Court held that forceful oral sex does not fall within the category of ‘aggravated sexual assault’ or ‘sexual assault’ under Sections 5, 6 or 9 of POCSO, but falls under ‘penetrative sexual assault’ punishable under Section 4 of the Act. This resulted in the reduction in the minimum punishment of the accused convicted for sexually assaulting a 10-year boy from 10 years to 7 years. However, the Court failed to observe that Section 5 (m) classifies all acts of penetrative sexual assault on a child below twelve years as ‘aggravated penetrative sexual assault’ thus increasing the severity of the punishment in the current case. The Court, thus, misclassified the offence into a less severe category thereby reducing the punishment of the convict which is inconsistent with the spirit of the Act. Observing this, the National Commission for Protection of Child Rights urged the U.P. Chief Secretary to file an appeal against this judgement. This instance not only highlights an incorrect application of the law without fair reasoning but also accentuates the need for increased awareness and sensitization regarding the impact of sexual offences on children and their severity on their lives. The reduction in the sentence beyond what is warranted by law in the case of such a heinous crime threatens the very structure of the Act by punishing an offender in a less severe manner than as accorded by law.
THE WAY FORWARD
With the increasing cases of contentious decisions by various high courts in matters concerning child sexual assault, the need for sensitization of the members of the judiciary has never been greater. Such sensitization is required on wide-ranging issues such as the severity of the effect of sexual offences on children, sensitization about child rights and gender sensitization. Further, a step has to be taken to ensure that in cases concerning sensitive issues, all decisions are based on law and evidence and that personal biases or gender stereotyping do not affect the impartial role of the judiciary. There is a need for special training and sensitization especially in special courts dealing with such cases under the POCSO Act, as reiterated by the Madras High Court. It is essential that the courts examine and apply the provisions of the Act in accordance with the object of the legislation to ensure the uniform and accurate application of the law.
Author(s) Name: Reet Balmiki (NALSAR University of Law, Hyderabad)