[Editorial Analysis] Defining a crime

Mains Paper 2: Social Justice
Prelims level: POCSO cases
Mains level: Issues related to Vulnerable sections

Context:

• In the recent AGI vs Satish case, the Supreme Court has overturned the two judgments of Bombay HC involving the interpretation of sexual assault under Section 7 of the POCSO Act 2012.

What is Section 7 of the Protection of Children from Sexual Offences Act 2012 (POCSO)?

• Under Section 7, touching any of the private parts of a child or making the child touch these parts of any person with sexual intent or doing “any other act with sexual intent which involves physical contact without penetration” constitutes sexual assault.

• It is punishable with a minimum of three years imprisonment, which may extend to five years, and a fine.

• Aggravated penetrative sexual assault, which includes assault of a child below 12 years, is punishable with a minimum of five years imprisonment, which may extend to seven years, and a fine.

What is the Bombay High Court Judgment in the two cases?

• In Satish’s case, While the special court had convicted the accused for sexual assault, the Nagpur Bench of the Bombay High Court expressed that stringent punishment for sexual assault warranted stricter proof.

• According to the High Court, the conviction could not be upheld because there was “no direct physical contact, i.e., skin-to-skin contact, with sexual intent without penetration.”

• Satish(the accused) was thus acquitted for sexual assault and convicted instead for outraging a woman’s modesty and wrongful confinement.

• In the 2nd case, the State of Maharashtra v. Libnus, the Bombay High court held that the accused holding hand of children and exposing his private part does not fall within the ambit of any other act under Section 7.

• 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.

The latest Supreme Court ruling of the above two cases:

• Both Justice Bela Trivedi and Justice S Ravindra Bhat considered the legislative intent of enforcing children’s right to protection from sexual abuse and exploitation and rejected the High Court’s restrictive interpretation of sexual assault.

• To ensure that the objectives of the POCSO Act are advanced and not abused.

• Justice Trivedi eschewed a narrow interpretation of the terms “touch” and “physical contact” and held that restricting touch and physical contact to only “skin-to-skin contact” would be contrary to the legislative intent and also frustrate the objectives of the POCSO Act. It would lead to absurd situations where touching children with materials like cloth would not constitute sexual assault.

• While agreeing with the principle of a strict interpretation of penal statutes, Justice Trivedi held that the rule which required courts to give the accused the benefit in case of statutory ambiguity would not arise as there was no ambiguity in Section 7.

• On other hand, Justice Bhat observed that the emphasis of Section 7 is to address the felt social need of outlawing behaviour driven by sexual intent and also observed that the High Court’s reasoning insensitively trivializes, indeed legitimizes, an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.

Conclusions:

• The Supreme Court’s decision is thus significant as it has set right the interpretation of Section 7 and will serve as a precedent for the scores of cases before special courts involving physical contact with sexual intent.

• At the same time, it is the need of the hour 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.

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Prelims Questions:

Q.1) With reference to the Sustainable Urban services program for Chennai metropolitan area (CMA), consider the following statements:

1. The Asian Infrastructure Investment Bank (AIIB) has approved USD150 million loan to the Government of India for implementation of the Sustainable Urban services program for the Chennai metropolitan area (CMA).

2. India is the third-largest beneficiary of AIIB and the bank has so far approved 29 projects for India worth 6.8 billion USD.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: A

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