Open letter to Bombay HC: Groping a minor is sexual assault, period.

On January 19, 2021, the Bombay High Court passed an appalling judgement in Satish vs The State of Maharashtra. The judgment is filled with flagrant violations of The Protection of Children from Sexual Offences Act, 2012 and the Constitution of India. The Bombay High Court was adjudicating a criminal appeal arising from the decision of the Special Child Protection Case No 28 of 2017. This was a case of sexual assault of a twelve-year-old girl. 

On December 14, 2016, the 12-year-old went out of her house in broad daylight at 11:30 am to buy guavas. When she didn’t return for a while, her mother went in search of her. She was informed by her neighbour that a man, Mohan* who lived in the vicinity of the house had taken her. Panicking, she rushed to his residence, where he denied having any knowledge of the whereabouts of the 12-year-old. Regardless, the mother frantically started searching for her. On reaching the first floor, she found a room locked from the outside. She heard her daughter crying and rescued her. Immediately after, the 12-year-old told her mother that Mohan* had brought her to his house on the pretext of giving her guavas. After bringing her home, he pressed her breast and tried to remove her salwar, that is when she started shouting for her mother. Enraged by this, the mother rushed to the police station and lodged an FIR. After three years of trial, the man was convicted by the Special Court set up under the POCSO Act for purposes of a safe and secure environment for the children during the trial. He was convicted under the following provisions of law – Section 354, Section 361, Section 342 of the IPC and Section 8 of the POCSO Act.

Section 361 of the Indian Penal Code, 1880 states, "Kidnapping from lawful 1860, states, "Assault or crin guardianship - Whoever takes or entices any minor under 1[sixteen) years of age of modesty. Whoever assau a male, or under 2 eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Section 354 of the Indian Penal Code, 1860, states, "Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 354 of the Indian Penal Code, 1860, states, "Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 8 of the Protection of Children from sexual offences Act, states "Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which extend to five years, and shall also be liable to fine."

Subsequent to this, the convict appealed before the High Court against the judgment delivered by the Special Court. 

The High Court acquitted Mohan of the offence of sexual assault under Section 8 of the POCSO Act and of the offence of kidnapping under Section 361 of the Indian Penal Code, 1860. The judge upheld the conviction for “outraging the modesty of women” and “punishment for wrongful confinement.” Effectively, the court reduced the sentence of the convict to half — from 3 years of rigorous imprisonment and Rs 1,500 fine to 1.5 years of rigorous imprisonment and Rs 1,000 fine.

The judge’s reason for acquitting the convict of Section 8 is:- 

“26. As such, there is no direct physical contact i.e., skin to skin with sexual intent without penetration.” 

But according to Section 7, is “skin to skin” contact an essential ingredient of sexual assault? The answer is a firm NO. The ingredients of sexual assault are – sexual intent and physical contact without penetration. It is even specified that acts of both touching vagina, penis, anus, breast of the child or making the child touch themselves amounts to sexual assault. There is absolutely no mention of the requirement of “skin to skin” contact. Injudiciously, the judge has added new condition of touch of skin for it to be sexual assault. The lower court’s conviction was based on the testimonies of the mother and daughter, both corroborating with no discrepancies. And yet, the judge opined a requirement of ‘stricter proof.’ 

A 12-year-old child was hoodwinked, taken to a man’s house where her breasts were pressed and salwar was attempted to be removed. The pressing of breasts fulfils both the ingredients of sexual intent of the man and physical contact. It was an attack on her bodily dignity.  

This ‘reasoning’ is devoid of any reasonableness and legality, given that it has directly contravened both the statutory provision of the POCSO Act. It has even violated the statement of objectives of the POCSO Act, which make it abundantly clear that “sexual exploitation and sexual abuse of children are heinous crime and need to be effectively addressed.” By ignoring this and the letter of the law, the judge has opined that “the stringent nature of punishment for the offence (given for POCSO cases) requires stricter proof and serious allegations.”

The Supreme Court in Ganesan vs. State while convicting a child sexual assault perpetrator for a similar sexual act, emphasised, “At this stage, it is required to be noted that allegations against the accused which are proved from the deposition are very serious, which cannot be permitted in the civilised society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence Under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. (rigorous imprisonment) which is the minimum sentence provided Under Section 8 of the POCSO Act.”

For a moment, if one is to agree to the logic of the judge regarding no direct skin contact, even then there is no reasoning as to why he is acquitted on the charges of kidnapping. The punishment for kidnapping can extend up to seven years with a fine. By acquitting Mohan of the offence of kidnapping, now with conviction on only two offences whose maximum punishments are two years, the judge removed the possibility of the convict serving the three-year sentence which was initially given by the Special Court. One is forced to read deeper into the silence of the court on the offence of kidnapping. The reduction of the sentence of rigorous imprisonment from 3 years to 1.5 years for a child sexual offender, shows the disregard of the judge towards the settled principles of law. 

Another question that must be asked of her is — how is groping without disrobing not an attack on a person especially a child’s body? And how does it not amount to sexual assault?

The acquittal of the convict on charges of sexual assault while being convicted under “outraging the modesty of women,” presents two serious problems. Firstly, it does not take into account that this is not an adult but a child no more than 12 years of age. The Protection of Children from Sexual Offences, 2012 is an Act specifically directed at the protection of children below 18 years of age from different forms of sexual violence. Hence, the punishments are more stringent under it, given the impact sexual offences have on children. However, by convicting him under “outraging modesty,” the judge has not only reduced the punishment to half but has also failed to recognise the legislative intent of the Act. Neither are the ingredients of “outraging modesty of women” fulfilled. 

Now, consider this — a male child’s penis was forcefully pressed, while his clothes were on, by a person. There is no doubt that the act was done with sexual intent. Going by the ‘reasoning’ of this judgment, and given that outraging the modesty of a woman is a provision that exclusively invoked for women, under what provision of law would he receive justice? The Indian Penal Code, as we know it, has no provisions to criminalise sexual offences against men. This judgement begins a dangerous judicial trend that even though POCSO recognises sexual violence against male children, if there is physical contact through clothes, the survivor is left with no remedy. This is the second consequential catastrophe the case has caused. With a stroke of a pen, the judge undid years of perseverance and effort put in by the feminist movement and child rights activists in building a judicial understanding of sexual offences against children. 

For a 12-year-old to report a case of sexual assault and brave through the entire litigation only to be told that “because he pressed your breast with clothes, it is not sexual assault” is a direct attack at the child’s dignity protected under Article 21 of the Constitution. It is enraging to see that the judge has, through her denial of the act being sexual assault, invalidated the unthinkable misery gone through by the child. By extension, the court has invalidated countless experiences of sexual assault of both children and adults which are perpetrated with the clothes on in public transport, at workplaces, at home, etc. It was only a couple of months ago when such judicial insensitivity was displayed by another judge in the Karnataka High Court by blaming the survivor of rape and questioning her behaviour while she was being raped. Such judicial insensitivity takes us back many steps in understanding the institution of sexual violence. It is extremely worrying that constitutional courts are failing us time and again. 

Also read: What does it take for a rape survivor to be believed in India?

Manavi Atri is an advocate based in Bengaluru. Views are the author's own.