The significance of Supreme Court’s recent POCSO decision

News: In the Attorney General of India v. Satish case, the Supreme Court has set aside the controversial judgment of the Bombay HC which held that ‘skin-to-skin’ contact is necessary for an act to be classified as sexual assault under the Protection of Children from Sexual Offences(POCSO) Act.

About the Bombay HC judgment

Two judgments of the Bombay High Court provide an interpretation of “sexual assault” under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Note: Section 7 of POCSO Act mandates that “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”.

Satish v State of Maharashtra case: The Bombay HC cited  “no direct physical contact, i.e. skin-to-skin contact, with sexual intent without penetration.”  Thus Satish was acquitted for sexual assault and convicted instead for outraging a woman’s modesty and wrongful confinement.

State of Maharashtra v. Libnus case: The accused was acquitted for aggravated penetrative sexual assault, and instead convicted for the lesser offences of sexual harassment under both the POCSO Act and the IPC.

Read hereSexual intent, not skin-to-skin contact, key: SC

About the POCSO Act

The Act provides a mandatory minimum punishment of three years.

-For an act with sexual intent which involves physical contact without penetration, the punishment may extend to five years, and a fine.

-For Aggravated penetrative sexual assault, the minimum punishment is five years imprisonment, which may extend to seven years, and a fine.

Read hereThe POCSO Act and associated issues

Why the Bombay High Court verdict is controversial?

Read here: Error corrected: Regarding POCSO Act

-The emphasis of Section 7 is to outlaw behaviour driven by sexual intent. So, the HC judgment legitimises “an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

Why SC ruling is essential and how to move ahead?

Much needed interpretation of Section 7:  Research studies based on judgments of special courts have revealed similar interpretations of Bombay High Court is prevalent in courts. For instance, taking children by force and tearing their clothes have been considered as falling outside the ambit of “physical contact” under Section 7.

So, the SC interpretation will serve as a precedent for the scores of cases before special courts involving physical contact with sexual intent.

Research on high minimum mandatory sentences: Both SC and HC noticed high minimum mandatory sentences under POCSO Act. There is a need for research on the impact of high minimum mandatory sentences on judicial appreciation of evidence and outcomes, as well as the participation of victims and their families during the trial.

Source: This post is based on the article “The significance of Supreme Court’s recent POCSO decision” published in Indian Express on 23rd November 2021.

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