SC Rightly Stays A Strange Reading Of The POCSO Act By Bombay HC
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-01-27 15:03:07
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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It is true that individual judges can have their own interpretation of the statutes and such interpretations can sometimes be at variance with what would have come to be known as the accepted version, but when a judge gives an interpretation which is completely against both the letter and spirit of the law, it raises several questions about how judges arrive at their decisions.
The "skin-to-skin" order under the POCSO Act in a case of sexual molestation of a child by a Nagpur bench of the Bombay High court falls in this category. The logic set out in the order clearly shows that the judge has misinterpreted the provisions of the Act and has given a ruling that goes against the very premise on which the law was based. There is a huge difference between sex and sexual assault and the latter can happen in hundreds of ways which can be both physical and mental. Some of these ways do not even need a touch, let alone "skin-to-skin" contact, although the POCSO Act requires physical touching.
But when the matter is as serious as groping a breast, it is sexual assault regardless of the fact how it was done. It does not matter if the girl was clothed or naked, whether the man used his hands or legs or mouth. Any physical touching of the breast done knowingly, even just a brush, is enough to qualify as sexual assault. Under the POCSO Act, the additional parameter is that it will be treated as sexual assault even if it is done with the consent of the child below 18 years of age. Was the judge not aware of this?
Section 7 of POCSO Act says: Sexual assault - 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.
The operative word here is physical contact. It is described in various dictionaries as "the act of touching physically". It does not matter if the person touched is fully clothed or naked or whether skin contact was made. If two fully clothed persons hug, it would be physical contact and if a person even touches the arm of another while talking it would be physical contact. Then how could a person groping the breast of a child who might be wearing several layers of clothing not count as physical contact and by that token and as per the definition in section 7 of the Act, sexual assault?
It is good that the Supreme Court has stayed the Bombay High Court order. Such perverts cannot be allowed to walk away after traumatizing a child just because a judge interpreted the law erroneously. The Supreme Court must examine the order and set it aside as it is clearly a dangerously wrong interpretation of the POCSO Act.
