Updated: Jan 19
In early 2018, the mother of a 5-year-old, the sole eyewitness of a heinous incident, filed an FIR, wherein she stated that upon returning home, she found an unknown man “pulling up his pants & forcibly trying to take her daughter”. The minor prosecutrix also testified that the accused’s pants were undone and she herself was also pulling her pants up when the mother first saw her on her return home.
Despite the circumstantial evidence pointing in a single direction unanimously, the judge turned a blind eye towards the misdeed, and declared the accused not guilty of the offence of sexual assault under S. 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
This decision turned out to be a controversial one, as it went against the very ends the statute was enacted to achieve: “safeguard children from sexual offences”. The entire legal fraternity was taken aback by the judgement’s narrow and very inept interpretation of the law, with many notable jurists and judges voicing their dissent openly.
Through this article, I seek to evaluate and critically analyse the judgement which, if had not been overruled, would have put the children of our country at great peril.
MATTERS-IN-ISSUE & JUDGEMENT
Primarily, the High Court was burdened with ascertaining the answer to one major question, pivotal in adjudging the fate of the accused:
“Whether holding hand of a child and taking penis out in front of her would fall within the definition of sexual assault under section 7 of the POCSO Act.”
The Act, under S. 9, provides a definition of the term “aggravated sexual assault”, which is simply an attack of a sexual nature (or a “sexual assault”), on a child who has not yet attained the age of 12.
Section 7 of the same Act explains what the term “sexual assault” signifies, ad verbum, as:
“Whoever, with sexual intent touches vagina, penis, anus or breast of child, or make 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 have committed sexual assault.”
In adjudicating the matter at hand, the High Court employed the doctrine of “ejusdem generis”. This doctrine is purposed with assigning to the general terms of a statute a meaning consistent with the remaining statute. Put simply, ejusdem generis assigns a more focused meaning to the less specific (general) terms of a statute. In the present case, the High Court interpreted the term “other act” u/S.7 per ejusdem generis, concluding that 'holding hands' fell beyond the scope of “sexual assault” under the Act, and the accused was not guilty of the same.
In the first instance, it is clear that the entire purpose of the Act was affording protection to children specifically from carnal crimes. The POCSO Court of Mumbai saw the issue from a different perspective, and instead pondered on the justification of bail being granted to the alleged perpetrator.
The accused defended himself by establishing the fact that he was a regular visitor of the victim’s home, and the touch, therefore, was not a “bad touch”, as stated by her. The court replied by pointing out that the victim had explicitly mentioned the accused’s act of touching her, which she felt was a bad one. Additionally, the Court rejected the bail application in light of the seriousness of the offence.
As absurd and impossible as it seems, the approach taken by the Bombay High Court was something that would have opened floodgates for perpetrators of unspeakable crimes against children. An interpretation which is technically sound might be a more logical step in matters which are of a more civil nature, such as a property dispute or a commercial dispute.
However, in criminal matters, especially those involving sexual violations against children, the judge must not forget that the innocence and modesty of an impressionable, mouldable, and simple mind of a child hang in the balance. The impact that such an incident might have on the child can be far-reaching, affecting his or her ability to form and maintain meaningful relationships in their later lives and in some cases, becoming sexual predators themselves.
Typically, the first step or recommendation for preventing the occurrence of such unfortunate incidents is to introduce more stringent laws with harsher punishments. However, the mere presence of laws is insufficient in itself, without an executor who can apply the laws in a manner consistent with the intention of the lawmakers.
Although judgements like these are almost always curbed in time, thanks to the Apex Court’s active role, it is a major point of contention as to why such judgements, which are completely against the spirit of the laws of the land, are delivered to begin with. It points, at least in part, to the lack of sensitivity on the part of the executors and thus, warrants intensive training and workshops addressing the issues of gender, POCSO, POSH (Prevention of Sexual Harassment), diversity and inclusion. Such consistent sensitisation will go a long way in ensuring a sustained behavioural change at every level of the judiciary.
Judicial academies must take it upon themselves to expose the adjudicators to the wider social issues in a manner that further humanizes their efforts as law enforcers instead of being mere enforcers of procedure or verbatim followers of the word of law.
Mens Rea is the most significant aspect of a crime. Its absence can, in certain cases, render the commission of a crime incomplete, ending the culpability of the offender entirely. Hence, instead of making the punishments harsher as a preventive or anticipatory step against child sexual predators, convicts of such offences may be perceived as relevant subjects for psychological tests and research. Such deviant behaviour can be studied and analysed to find the root cause of this problem. Rehabilitation by means of professional counselling might help understand the origin of such horrific acts and providing perpetrators with an impetus or motivation might be the key to once again making them productive, responsible members of society.