AIDWA welcomes the judgment of the Supreme Court in the case of Attorney General for India v. Satish and Another in which the Supreme Court clarified that Section 7 of the POCSO defining non-penetrative sexual assault would be attracted in a case in which the accused touched the victim on her private parts with sexual intent without removing her clothes. The Nagpur Bench of the Bombay High Court had held that unless there was ‘skin to skin’ contact, the said section would not be applicable.
Section 7 of the POCSO Act mentions that the touching of the specific sexual parts of the body of a child with sexual intent by a person is punishable as sexual assault. The second part of Section 7 also provides that any other act done with sexual intent which involves physical contact without penetration would also be punishable as sexual assault. The Nagpur Bench of the Bombay High Court had held the accused can only be punished under Section 354 of the Indian Penal Code, 1864 which defines molestation as assault with the intention of outraging the modesty of a woman and prescribes a lesser punishment for that offence. In the case of Satish, the victim’s mother had gone looking for her daughter in the house of the accused who denied her presence there. However, on hearing shouts from inside the house, the victim’s mother barged in and found that her daughter had been locked in a room by the accused. The victim, who was 12 years old, was crying in the room and told her mother that the accused had pressed her breast and tried to remove her salwar.
The Bombay High Court however held that the accused could not be prosecuted under the POCSO Act as the touching did not involve ‘skin to skin’ contact. The High Court also held that since the punishment was stringent, stricter proof and allegations were required and that since the accused had not removed the victim’s clothes or inserted his hand inside her top, it would not fall within the definition of sexual assault as provided under POCSO.
The Supreme Court held that POCSO was enacted since sexual offences against children were not adequately addressed by the existing laws and a large number of offences were neither specifically provided for nor were they adequately penalized. In a concurring judgment, Justice Bhat also held that POCSO dealt with all forms of sexual assault, both penetrative and non-penetrative which had not been adequately addressed by the law. The Supreme Court held that the High Court had interpreted the meaning of sexual assault very narrowly and had trivialized the offence and undermined it. The Supreme Court quoted an English judgment and an American judgment which both held that the touching of clothing would constitute a sexual offence and that ‘skin to skin’ contact was not necessary. The Supreme Court held that it was the sexual intent with which the act was committed was critical and was clearly established by the facts of the case. It held that any other interpretation would go against the intent of the legislature to punish non-penetrative sexual assault against children.
The Supreme Court in this matter also decided another case where the accused Libnus had also been convicted under Section 7 of the POCSO Act by the trial court. In this particular case, the mother of a 5 year-old child, who was a domestic worker, returned at 4 PM and discovered a man holding the hand of her daughter and also saw her daughter raising her pant upward. She saw that the accused’s pant was unzipped. The accused had apparently caught her hand, lifted her frock and lowered her pants and asked her to lie down on a wooden cot after which he unzipped himself and showed his private part to her. In this case the accused had been held guilty of the offence of aggravated non-penetrative sexual assault since the victim was under 12 years old. The punishment for this offence is imprisonment for a term of not less than 5 years but which could extend to 7 years. The accused was accordingly punished with 5 years imprisonment. The High Court of Bombay (Nagpur Bench) however held that this was not a case of aggravated sexual assault under the POCSO Act but was an act which could only be punished under Section 354-A (1)(i) of the IPC which penalizes physical contact and advances involving unwelcome and explicit sexual overtures as sexual harassment with a maximum imprisonment of 3 years. The reasoning of the Bombay High Court was that the acts alleged were not sufficient for fixing a liability under the POCSO Act. In this case also, the Supreme Court held the accused guilty of aggravated sexual assault. The Supreme Court held that the High Court should not have been swayed by the fact that the minimum punishment for the offence was 5 years imprisonment when the facts clearly showed that the accused had committed an act of sexual assault. It is relevant to point out that once the facts clearly make out an offence under the POCSO Act, the burden of proof shifts to the accused under Sections 29 and 30 of the POCSO Act. This applied in both the cases.
Since 1993, AIDWA had been campaigning for change in the laws relating to sexual assault and has actively participated in the struggle for change of these laws. AIDWA campaigned for comprehensive changes which addressed the reality of both penetrative and non-penetrative sexual assault. One of the important changes in the law suggested by AIDWA was to change the definition of molestation from the archaic and colonial definition of ‘assault with the intention of outraging the modesty of a woman’ to physical touch with sexual intent. Apart from this, AIDWA had also campaigned for other changes in the law including bringing in new offences like stalking, etc. These changes are reflected in POCSO which was enacted in 2012 and in the 2013 legislation in the Indian Penal Code dealing with sexual assault. However, though the definition of penetrative sexual assault was changed in the penal code to enlarge its meaning, the definition of molestation remained the old definition made in the penal code in colonial India which has clear patriarchal connotations which seem to suggest that the ‘modesty’ of a woman, (whatever that means) is an important factor.
AIDWA demands that Section 354 of the IPC therefore also be reformed to reflect the reality that it is the sexual intent of an accused which is important.