Recently in January 2021, the Hon’ble Bombay High Court’s Nagpur Bench created a huge controversy by delivering a verdict where they acquitted an appellant charged under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act. The judgment comes as a huge shock, especially with regards to sexual assualt against male children.
The appellant had been accused of abusing a minor girl sexually. Further, the hon’ble bench while considering the issue punished him under Section 354 of the Indian Penal Code (IPC) which penalizes one if he outrages or attempts to outrage the modesty of a woman. Moreover, the learned bench, the same week, passed another judgment where it pronounced that “holding minor’s hand, unzipping pants not sexual assault under POCSO Act” and set aside convictions under Sections 8, 10, and 12 of the POCSO Act by reducing the sentence of the accused.
Verdicts passed by High Courts and Supreme Court set remarkable precedents for the lower courts of justice. Such fallacies committed while interpreting the statute might serve as a facilitation for the offenders. The article attempts to analyze the skin-to-skin judgment by elucidating the provisions of the POCSO Act and IPC. Further, it also considers the errors committed on the part of the learned bench and throws some light on the other indirect implications that seem to have gone unnoticed by the learned bench while pronouncing the verdict. It also expounds how this judgment might be detrimental for the male children who already have limited protection that is limited within a few statutes.
As per the FIR lodged by the mother of the victim (a 12 years old girl), the appellant wrongfully lured the victim on the pretext of giving her some guavas and took her to his residence, where he pressed her breasts and attempted to remove her salwar and knicker. Due to this sudden mishap, the child started shouting, and the appellant pressed her mouth with his hands to prevent the same.
When the child had not reached the home, the mother of the child started searching for her. One of her neighbors informed her about her daughter’s whereabouts and took her to the appellant’s house where she saw the appellant coming down the stairs of the first floor. The appellant explicitly rejected and told the victim’s mother that he knows nothing about her daughter. However, after listening to the child’s cry, the mother found her in a room on the first floor, locked from the outside.
An FIR was lodged by the mother of the victim on December 14, 2016, about the incident, after which further interrogation was carried out. Statements of the mother, child, and neighbor remained the same in the lower and the higher court of appeal, i.e., the Bombay HC. The trial court found the appellant guilty under Section 7 of the POCSO Act and Section 354 of IPC. This decision got challenged and was put forth in front of a one-judge bench of Justice Pushpa Ganediwala to administer justice.
Court’s Reasoning and Final Verdict
The issue before the learned bench was that whether pressing the breasts of a child without removing the top falls into the category of sexual assault defined under Section 7 of the POCSO Act. Considering the issue, the court acquitted the appellant from the charge of Section 7 of the POCSO Act and punished him under Section 354 of the IPC on several grounds. Sexual assault committed under Section 7 of the POCSO act carries a punishment of imprisonment between 3 to 5 years. However, punishment in Section 354 of IPC that punishes the accused of outraging the modesty of a woman is only 1 year. Section 7 of the POCSO act 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 with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
Considering the definition, the court highlighted the important terms and interpreted that, in this case, there is no direct physical contact or ‘skin-to-skin contact.’ Hence, the said act cannot be classified as a sexual assault. Moreover, the alleged act committed by the accused cannot be put under “any other act” in the definition as “any other act” here means that it should be similar in manner to the other acts specified within the statute in terms of nature.
Thus, the hon’ble court, based on the above-mentioned reasoning quoted that “‘mere’ pressing of breasts was not an act of such a serious nature that it could attract more than a year’s punishment as the first principle of Criminal Jurisprudence is that the crime and punishment should be equal in weightage.” Furthermore, the court said that there is no “strict evidence” or “allegations of serious nature” and acquitted the accused under the POCSO Act.
Implications Of The Verdict On Male Children
Women and girls are considered to be vulnerable, which is why the Indian Constitution gives immunity to the government to create any discriminatory legislation for their welfare. Rape laws in the Indian Penal Code can also be seen as positively biased towards the feminine. Although there are various instances where females also commit heinous crimes on male children, Indian laws hardly consider the same. This judgment might also result in exacerbating the situations of male children. The article attempts to analyze the same under this heading.
What is “Sexual Assault” relating to Male Child?
World Health Organization (WHO) defines child sexual abuse as “Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society.” However, there is a misconception that only one gender can commit sexual assault, and only females are the ones that become victims mostly. But the Ministry of Women and Child Welfare in 2007, in collaboration with the United Nations Children’s Fund and the non-profit organization, Prayas, conducted a study in order to understand the magnitude of child abuse in India. It was found that nearly 53.22% of children face one or more forms of sexual abuse and among them, the percentage of boys abused was 52.94%.
Sexual assault against any male child might include a woman or any person undressing in front of a man and he gets uncomfortable; touching his sex organ; seducing him to have sex against his will; commenting on a sex organ of a man; or tempting or tricking him to have sex. However, there might be other reasons apart from those mentioned as the word “Sexual Assault” is a broad term, and it is till now not interpreted in the context of a male child. In several instances, parliamentarians like Maneka Gandhi, etc. have come forward in support of male child rights and urged the government to make “gender-neutral” laws. Nevertheless, nothing happened to protect them.
Instances of Sexual Assault against Male Children in India
In March 2019, in Chennai, a 32-year-old female government teacher was arrested and remanded by police. She had sexually assaulted ‘some’ of her students for the past three years. “She used to lure the boys promising to buy them gadgets such as mobile phones, etc., and sexually assault them on many occasions in the school and at home during tuition. She had even taken them to secluded spots and allegedly captured pictures and videos of their intimate moments.” Another case is of Pune, where a Physical Education teacher was arrested and charged under the POCSO Act. While registering the complaint, social activists told the police that “After the school got over at 12.20 pm, the teacher allegedly took the boy to the school toilet and sexually assaulted him. After returning home, he complained to his father. Then his parents approached me…We informed the police after speaking to the boy”.
There are various such instances that go unreported just because of the absence of any stringent law that might protect the victim and serve adequate punishment to the offender. Moreover, society plays a vital role in exacerbating the situation. Instead of considering the plight of male children, society argues that only members of one sex can commit sexual assault and rape, and only the members of the other can get assaulted. Such patriarchal stereotypes prevalent in society affect the victims in a worse manner. Once Maneka Gandhi while raising the issue in Parliament, said that “Boys who are sexually abused as children spend a lifetime in silence because of the stigma and shame attached to male survivors speaking out. It is a serious problem and needs to be addressed.” However, the issue was unable to get that much limelight.
Effect on Male Children
It is a matter of fact that the judgments passed by the hon’ble court will serve as ideal precedents for lower courts as well as for courts of the same position in near future. Looking at the issue from the perspective of a male child, it can be said that it would simply mean that the offender can get absolved by the charges of hurting the dignity of a male child as long as his clothes are not removed. Without removal of the clothes, no one can have skin-to-skin contact. Hence, this would not come under the purview of sexual assault under Section 7 of the POCSO Act. Moreover, Section 354 of IPC would also not be able to protect the child as already mentioned above that a few laws are positively biased. Section 354 of IPC only takes into account the interests of women and punishes those who outrage or attempt to outrage the modesty of a “woman.”
As already elucidated above that how society plays a vital role in exacerbating the situation of male children who are victims of sexual assault. This judgment surely went a step ahead in suppressing the voices of boys further. Questioning the mental capability of the girl child while pronouncing the verdict was also something that might affect in a negative way another child from sharing an incident of sexual abuse with his parents or elders. It is the job of the police to investigate the matter and present the evidence in court. The learned bench should not delve into such controversial issues and prevent itself from giving any disputable opinion that might disparage the image of the judiciary among the right-thinking members of the society.
The rights of the male child are vastly ignored and are often neglected, owing to the notions prevalent in society as well as embedded within the mind of individuals. Hon’ble courts should interpret the legislation keeping the benefit of the society as well as the rights of marginalized sections in mind. The verdicts might have unprecedented and unimaginable impacts on society. Moreover, it is not only the duty of the courts to act as a facilitator, but it also rests on the shoulders of the society to strive for giving up its detrimental practices and focus on the wholesome benefit of each individual.
- Groping Without Skin-to-Skin Contact Is Not ‘Sexual Assault’ Under POCSO: Bombay HC, available at: Groping Without Skin-to-Skin Contact Is Not ‘Sexual Assault’ Under POCSO: Bombay HC (thewire.in) (last visited on March 28, 2021).
- Indian Penal Code, 1860, s. 354.
- ‘Holding Minor’s Hand, Unzipping Pants Not Sexual Assault Under POCSO Act’: Bombay HC, available at: ‘Holding Minor’s Hand, Unzipping Pants Not Sexual Assault Under POCSO Act’: Bombay HC (thewire.in) (last visited on March 28, 2021).
- Protection of Children from Sexual Offences Act, 2012, s. 7.
- The Constitution of India, 1950, art. 15.
- World Health Organization, GUIDELINES FOR MEDICO-LEGAL CARE FOR VICTIMS OF SEXUAL VIOLENCE, available at: https://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf (last visited on 28th March 2021).
- Vyjayanthi Kanugodu Srinivasa Subramaniyan, Praveen Reddy, Girish Chandra, Chandrika Rao & T. S. Sathyanarayana Rao, “Silence of Male Child Sexual Abuse in India: Qualitative analysis of barriers for seeking psychiatric help in a multidisciplinary unit in a general hospital” Indian Journal of Psychiatry (Apr., 2017).
- “Government to amend POCSO Act to make it gender-neutral: Women and Child Development Ministry”, The New Indian Express, 28th April 2018, available at: https://www.newindianexpress.com/nation/2018/apr/28/government-to-amend-pocso-act-to-make-it-gender-neutral-women-and-child-development-ministry-1807506.html (last visited on 28th March 2021).
- “Tamil Nadu teacher held for sexually assaulting her male students”, The Times of India, 23rd March 2019, available at: https://timesofindia.indiatimes.com/city/chennai/tamil-nadu-teacher-held-for-sexually-assaulting-her-male-students/articleshow/68530874.cms (last visited on 28th March 2021).
- “Pune: Teacher booked for ‘sexually assaulting’ Class IX male student, probe on”, The Indian Express, 23rd November 2019, available at: https://indianexpress.com/article/cities/pune/pune-teacher-booked-for-sexually-assaulting-class-ix-male-student-probe-on-6132803/lite/ (last visited on 28th March 2021).
- Rituparna Chatterjee, ‘The mindset is that boys are not raped’: India ends silence on male sex abuse, The Guardian, 23rd May 2018, available at: https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala (last visited on 28th March 2021).
BY – KAUSTUBH KUMAR | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI