Imagine your child is playing with one of your relatives. Suddenly, you receive a call and you move out of the room. After a few minutes, when you come back, you notice the usual giggles have been replaced with a glum face. The relative has already left the place. Perturbed, you ask your child, “what happened” but to no avail. After continuous pestering for a few days, you come to know that the relative tried to strip off your child. Hurriedly, he had to leave fearing that he would be caught red-handedly. Your child is not able to overcome that fear. The trust it had on the relative had been shattered. So much so, he does not wish to go to school nor to the playground. Somehow you try to bring him out of trauma only to fail. 

You would have seen such stories/incidents many a times in popular crime serials like “Crime Patrol” or “Savdhaan India”. The mere picturization of what happens with the child or what he/she goes through sends shivers down one’s spine. Sometimes, one is not able to sleep properly. The thought that “it may happen to your kid” keeps you awake. You start thinking of measures to keep your child informed about safe & unsafe touch, keep a close eye over his/her behaviour or whom does he/she interacts with? This happens for a few days then you come back to your normal routine. 

Imagine, a small scene takes away your mental peace. You start suspecting people who often see your child. What if, the incident described above is true? What will you do as a parent? Many a times, children are forced to keep quiet in the interest of the family’s reputation.  A parent like this writer would certainly like to approach the police and seek justice for her child. Assuming that the concerned authorities will take strict action and the culprit will not be able to abuse other children.

Recently, a 12-year-old girl’s case came up for hearing before the Nagpur bench of Bombay High Court. Just like the above incident, the girl was lured into a room on the pretext of giving a guava. The man tried to undress her and pressed her breast. The girl was somehow able to run away. The session court held the man guilty under Protection of Children from Sexual Offences (POCSO) Act and punished him with a rigorous imprisonment of three years.

While hearing the appeal against the trial court’s order, the Bombay High Court reversed the decision. Instead, the Nagpur bench headed by Justice Pushpa Ganediwala held that accused did grope the child but it did not constitute as sexual assault punishable with POCSO. It instead constituted an offence “outraging the modesty of a woman” under section 354 of the Indian Penal Code (IPC). The judge said that the allegation was not “serious enough for the greater punishment” prescribed under law! Instead, the man was sent for one year imprisonment under section 354 of IPC while the POCSO act provides for rigorous imprisonment of three to five years. 

The judge held the girl reportedly was wearing her clothes and there was no “skin-to-skin” contact to constitute sexual assault under section 7 of the POCSO Act. The judgement was shocking to say the least. Being a parent, it agitated me and several organisations advocating for child rights. 

Imagine, a child being raped with the man wearing a condom and the court says, it is not sexual assault since there was no skin-to-skin contact. The judgement would certainly be used as a precedent by ingenious criminals to seek protection against all cases where physical contact was absent. It certainly sent shock waves across the country. 

In another case of child sexual abuse, the same judge set free a 50-year-old man and held that holding the hand of a five-year old girl and unzipping pants in front of her does not amount to a sexual offence under POCSO without understanding the affect it would have had on the mental health of the child. 

Now what does section 7 of the POCSO act says? It 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 which involves physical contact without penetration is said to commit sexual assault.” Let us break this piece of law into small chunks to make it easier to understand. 

To prove that an act would be construed as a sexual assault, “sexual intent” must be there. Simply put, an accused cannot be held guilty for accidental or involuntary acts. The presence of “sexual intent” was very much there in the above-mentioned case. Plus, the section speaks about (a) “physically touching the vagina, penis, anus or breast of the child” or (b) forcing “the child to touch the vagina, penis, anus or breast of such person or any other person” or (c) any other act “without penetration” would also constitute sexual assault. The language of the act is absolutely clear in terms of presence of physical touch or contact. Nowhere does it mention “skin-to-skin” touch.

In fact, the general rule while interpreting any law in case of any ambiguity is to refer to the statement of objects and reasons. The learned judge should have kept in mind that the law protects the interests of child and not of the accused. The child cannot be subjected to such questions like whether top was removed or not. By doing so, the judge has certainly trivialised the heinous crime of child sexual abuse. 

POCSO was meant to be a child-friendly law aiming at safeguarding the privacy and confidentiality of a child. It certainly provides a shield to children, irrespective of their gender, against protracted investigations and trials of the judicial system. However, such restrictive reading and interpretation of POCSO is not uncommon.

In a similar case “State vs Bijender (2014)”, the Delhi court had acquitted a man under POCSO. He was also convicted of IPC offences. The man had forced a seven-year-old girl into a bathroom, slapped her and tore her jeans. The court had given a similar judgement that the act of tearing clothes does not constitute physical contact even if sexual intent was present. Of course, we did not see the kind of agitation over the judgement as we saw this time. Simply put, the law has often been interpreted to suit the interest of the accused than the victim. 

Also, child sexual abuse is not restricted to girls alone. The Bombay High Court convicted the accused under section 354 of the IPC. This recourse is only available to females. What will happen if a boy was being abused? The absence of skin-to-skin contact will set the accused free. Imagine, a man touching the penis of a male child from outside his underpants, will it be considered a sexual assault? According to Justice Pushpa Ganediwala, No. There is no “skin-to-skin” contact. Hence no sexual abuse!

Will this judgement not allow the criminals to go scot-free? Will this give confidence to children? Will children come forward and speak against child sexual abuse? What exactly do we want – a safe and secure childhood for our children or a childhood replete with horrifying tales of abuse? 

Every day, on an average 130 children are sexually abused in India as per the report published by National crime record bureau (NCRB) in 2019. This is around 19 per cent higher than in 2018. The cases are increasing day by day, year on year. It is important to note that this data is only for reported cases. Most cases go unreported. The lockdown imposed due to covid-19 pandemic has already made the children more vulnerable and susceptible to child sexual abuse. In other words, the 2020 NCRB report may report higher cases of child sexual abuse. The judgement by the Bombay High Court will only increase the unreported cases. The children and their parents will fear harassment while reporting such cases. The judgement has defeated the very purpose for which POCSO was promulgated.

The Supreme Court recently has rightfully stayed the order passed by the Bombay High Court after intervention from the Attorney General K K Venugopal. It has sent notice to the accused as well. The case will come up for hearing again. Most likely, the court will restore the decision of the trial court. This could happen because this case got a lot of attention from the general public. Many a times, such cases do not gather much media attention. The apex court must ensure that the interests of children are protected at all times. And a judge, while exercising his/her judicial wisdom, must not distort and dilute the very purpose of POCSO. 

The writer is a company secretary & executive director of a Delhi-based NGO, Deepalaya. She can be reached at jassi.rai@gmail.com