Published: 28th January 2021
What the FAQ: Bombay HC's groping without 'skin-to-skin contact isn't sexual assault' order, what does the POCSO Act say?
Since the high court's ruling on January 19, there have been questions about what the POCSO Act entails, what is the punishment for children's sexual assault, and a lot more. We find out more
The Supreme Court on Wednesday stayed the controversial order of the Bombay High Court which stated that groping a 12-year old child without removing her clothes will not fall within the definition of 'sexual assault' as mentioned under Section 7 of the Protection of Children from Sexual Offences Act (POCSO). Since the high court's ruling on January 19, there have been questions about what the POCSO Act entails, what is the punishment for children's sexual assault, and a lot more.
Here we explain what the Act is, what it states about child sexual assault and more on the high court order.
What is the Protection of Children from Sexual Offences (POCSO) Act?
Ans: To deal with child sexual abuse cases, the Indian Government had brought in a special law, The Protection of Children from Sexual Offences (POCSO) Act, in 2012. The POCSO Act, 2012 is a comprehensive law to provide protection to children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process. According to the Act, it defines "a child as any person below eighteen years of age and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be 'aggravated' under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor."
The Act also states that people who traffick children for sexual purposes are also punishable under the Act's provisions.
What is sexual assault and therefore its punishment under the POCSO Act?
Ans: Section 7 of the POCSO Act reads, "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."
As per the POCSO Act, punishment for sexual assault entails, "Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."
What did the Bombay HC verdict say?
Ans: The recent Bombay High Court verdict on a sexual assault case in Nagpur raised eyebrows when the court ruled that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault as defined under the POCSO Act. The ruling further explained that since the man "groped the child without removing her clothes" the offence cannot be termed as sexual assault. However, the court said it does constitute the offence of outraging a woman’s modesty under Section 354 of the Indian Penal Code (IPC). "Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required," the high court said.
Why did the Supreme Court stay the Bombay HC order?
Ans: Following the Bombay HC order, activists, child rights organisations immensely criticised the Bombay HC's order terming it completely unacceptable. The Supreme Court stayed the high court order on Wednesday. A bench consisting of CJI SA Bobde and Justices AS Bopanna and V Ramasubramanian stayed the high court order after Attorney General KK Venugopal mentioned the matter. According to news reports, he submitted that the judgement was "unprecedented" and "is likely to set a dangerous precedent".