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Lopsided high court verdict on groping

Section 354 of IPC only applies to women, which would leave boys with no recourse against such sexual violence.

In a curious judgment that triggered outrage and risked setting a dangerous precedent, the Nagpur Bench of the Bombay HC last week held that an accused be acquitted of a crime under Section 7 of the POCSO Act (sexual assault) and be convicted under the lesser 354 of the IPC (outraging modesty) through an extremely narrow (mis)reading of the POCSO section in question.

Sexual assault, as defined in the section, is described as physical contact of a child with sexual intent without penetration (or, with sexual intent, making a child commit such an act without penetration on the person). The court interpreted physical contact in this sense to mean “skin-to-skin” contact, arguing therefore that the minimum punishment of three years for the accused, who allegedly pressed the child’s breast and attempted to remove her salwar, was disproportionate to the crime.

The problems posed by this line of reasoning are manifold. First, the interpretation of physical contact as meaning “skin-to-skin” contact is flawed and not in keeping with the spirit of the law. Second, it does not account for the effect of such contact—even through clothes—on the psyche of a child in her formative years. Third, it fails to consider the impact of this reading on male victims—while POCSO is gender neutral, Section 354 of IPC only applies to women, which would leave boys with no recourse against such sexual violence.

The apex court on Wednesday stayed the acquittal of the accused under POCSO but the incident reveals the lack of understanding and sensitivity among the judiciary of sexual violence against children even eight years after the Act was passed. It also highlights the danger of focusing only on “tougher sentences”, including mandatory minimum punishments, to address such crimes.

Seeing the “stringent punishment” provided, the HC said “stricter proof and serious allegations are required”, thereby, like other courts, choosing to acquit and diminishing the act of sexual violence and trauma of a child, who has waited four years for justice, in the swoop of a pen. The state’s responsibilities cannot end with the passage of a law. Without training and sensitisation of stakeholders, even the best of laws will do little to advance justice.

The New Indian Express