Travesty of justice

In India where women’s safety has poor record, acquittals based on technical definition will do great harm to the cause of justice

The lessons learnt from the Nirbhaya tragedy must lead towards a criminal justice system that is free from loopholes and stands by the victim at all costs. In a case involving technical definition of what constitutes a sexual assault, the Supreme Court has rightly ordered a stay on the Bombay High Court’s ruling that groping without ‘skin-to-skin’ contact will not be classified as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. The interpretation made by the Nagpur bench of the Bombay High Court was certainly problematic, triggering public outrage. The High Court’s judgement pertained to the case of a 12-year-old girl who was allegedly abused by a 39-year-old man in 2016. The girl’s mother had alleged that their neighbour Satish had lured her daughter into his house on the pretext of giving her something to eat and then sexually assaulted her. When the girl called for help, the man had fled the spot. The girl was rescued by her mother. A special sessions court had sentenced the accused to three years in jail. Overturning the order, the high court said groping without ‘skin-to-skin’ contact will not be considered as sexual assault. However, it must be pointed out that stalking, which may not necessarily be skin-to-skin in nature, could be equally detrimental for the victim. There is no mention of skin-to-skin or direct contact as a necessary factor for qualifying as sexual assault under the POCSO Act. In such a case, the acquittal of a man for not fulfilling such a requirement would be unfair to the victim.

The main question before the high court was whether the alleged acts of the accused would fall within the definition of ‘sexual assault’ under the POCSO Act. Sexual assault is a wide term and in its most basic understanding would mean as any harm done to a person in a sexual manner. While interpreting the meaning of ‘touching’ and ‘physical contact’ in Section 7 of the POCSO Act, the court ruled that the case did not fulfil the criteria for conviction. However, such an interpretation ignores the context and purpose of the Act. In a country where women’s safety and security have an appalling record, such acquittals based on technical interpretation would do great harm to the cause of justice and exacerbate the divide between the common public and our legal justice system. A survey conducted by the Thomson Reuters Foundation in 2018 had ranked India as the ‘most dangerous country for women.’ Every day, an average of 130 children are sexually abused in the country. What is more alarming is that several cases of sexual assault go unreported for various reasons, including kinship with the perpetrator and lack of trust in the tedious judicial system.

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