While the debate over the controversial Bombay high court verdict, which held that absence of “skin to skin contact” meant it wasn’t sexual assault, rages for its restrictive interpretation of the Protection of Children from Sexual Offences (Pocso) Act, child rights activists and lawyers said another aspect has been inconspicuously affecting legal outcomes in such cases — the minimum sentence provision.
“We have been resisting the three-year minimum sentence from the very beginning. We can’t ignore the fact that judges are increasingly going to do this,” said Bharti Ali, executive director of Delhi-based child rights NGO Haq. Child rights lawyer Anant Kumar Asthana concurred: “When judges are reluctant to award the minimum mandatory sentence in a given case, where they don't think that kind of severe punishment is warranted, they find a way out. When minimum mandatory punishments were being introduced, many of us had cautioned this could happen.”
The definition of what sexual assault is can be contentious in itself. “Judges often see penetrative assault as an assault. In non-penetrative offences, the accused can be given the benefit of the doubt,” said Mumbai-based child rights advocate Maharukh Adenwalla. And in the absence of the provision for a discretionary sentence, judges may forego sentencing under Pocso altogether.
In Vasudev v State of Madhya Pradesh in 2014, a minor had accused Vasudev of forcibly holding her hands with sexual intent and making unpleasant remarks directed at her. The court acquitted Vasudev because the judge said the it didn’t amount to sexual assault. The same year, in Delhi, State v Bijender, the special court acquitted Bijender of sexual assault charges under Pocso because no private part had been touched — he had been accused of taking a seven-year-old girl to a bathroom, slapping her and tearing her jeans. He was convicted only under IPC.
“The stricter the punishment, the heavier is the burden of proof. It makes child victims more vulnerable to grilling questions in the courtroom. The defence will use all kinds of tactics. It will defeat the larger purpose of Pocso, which is to protect children,” Ali said.
In a 2016 study on the working of Pocso special courts in Delhi, a child survivor had shared that the hardest part of the trial was the defence line of questioning. “How much time did it take for the abuse to be perpetrated? Was the door open or closed? How did you reach from point A to B?” the study listed questions that should be avoided. “This can be very confusing for a young child, particularly when the concepts of time and distance are not well formed.”
The same study, by researchers from the Centre for Child and the Law, and the National Law School of India University, found that some within the legal fraternity were debating the quantum of punishment. “As an example, one respondent shared that the minimum punishment for sexual assault and aggravated sexual assault is high. ‘Should a 21-year-old be imprisoned for three years for forcibly kissing a girl?’,” the study said.
Bengaluru-based legal researcher Swagata Raha, who had co-authored the study, said laws like the Shakti Bill 2020 in Maharashtra, which proposes the death penalty, could backfire: “Women and child rights groups have strongly opposed it saying that it’s important to fix the implementation of the law but don’t make it so harsh that it becomes counterproductive for children.”