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Children’s rights and interpretation of law; a tale of 2 difficult cases

By Advocate Lalit Ajmani

Introduction

In a civilized society, an individual acquires the status of a citizen or member of a society pursuant to the mandate of law and consequently enjoys certain rights and carries some duties against the whole world. In other words our identities, rights, duties and liabilities are shaped by the law of land.

Though we live in a global world, but, generally, law is a municipal subject where every country has a right to enact and formulate law. Some countries like UK follow non-codified law, whereas countries like India rely upon long and heavily drafted laws.

The law, in India, though enacted by the law makers i.e. Parliamentarians/ Legislatures but the judiciary, has the mandate by law, to interpret the law in light of the facts and circumstances to secure justice. Moreover, it is utmost importance to give such power to the judicial body because every circumstance can’t be covered by mere text of law. Further, the different interpretation is the nature of law and language. Thus, it can’t be denied that such structure paves a way to secure justice by honoring and protecting the people’s rights.

Despite the comprehensive system of securing justice, it is often observed that the justice remains a distant dream. Moreover, the possibility of conflict between securing the mandate of law and achieving justice can’t be ignored. No one could possibly say better than a renowned writer when he said “Law and justice are poles apart”. At times, the harsh reality can’t be ignored, but sometimes legislatures or the judiciary becomes too technical in interpreting and applying the letter of law to the facts and circumstances that the very purpose of law i.e. justice gets defeated. One of such unfortunate instances has recently been observed when the Hon’ble High Court of Bombay has interpreted the POSCO Act too minutely that the evident fault of the accused persons couldn’t attract appropriate punishment as prescribed under the POSCO Act.

In light of the aforesaid, this piece of writing is being written in order to highlight the recent two cases where the rights of the victims (in this case- minor girls) are put in question.

A glimpse of the relevant provisions of law

In India, Indian Penal Code, 1860 (IPC) has provided more than 500 sections to cover various criminal offenses including crime against women. In addition to this, there are various other laws/Acts that provide punishment against the criminal conducts. On the lines of crimes against minors Prevention of Children from Sexual Offences Act, 2012 (for brevity – POSCO Act) was enacted in 2012 to provide stringent punishments qua sexual crimes against the children i.e. persons below than 18 (eighteen) years of age.

It is worth to note that the offenses against minor girls may attract IPC and POSCO Act both, but if the provisions of POSCO Act squarely get applied then the punishment is given on the basis of POSCO Act, meaning thereby that the guilty person has to face stricter punishment.  For example section 8 of the POSCO Act provides punishment against sexual assault for 3 (three) years to 7 (seven) years. Whereas, section 354 of the IPC talks about Assault/ criminal force to woman with intent to outrage her modesty and the section provides punishment of up to 2 (two) years only.     Since the sexual offenses against the children are heinous in nature, the application of POSCO Act naturally becomes the need of an hour.

Recent Hon’ble Bombay High Court Judgments

Now we come to the gist of the article and i.e. 2 (two) recent cases decided by the Hon’ble High Court of Bombay where the court found the accused not guilty of sexual assault against the children, but held them guilty under the IPC.

 

Case no. 1:

Satish vs. State of Maharashtra (decided in January 2021)

The case primarily deals with the issue of- ‘Whether touching the breast of a 12-year-old girl and attempt to remove her salwar will attract section 7 of the POSCO Act (Sexual Assault)’

The Hon’ble court observed that the prosecution couldn’t prove that the accused had physical contact i.e. skin to skin touch with the child’s body. Thus, section 7 of the POSCO is not applicable as the same mandates the physical touch which is missing in this case as the accused didn’t have skin to skin touch with the child’s body.

However, the cruel act of the accused didn’t go unpunished as the same falls section 354 of the IPC i.e. outraging the modesty of a woman.

This case has sparked debates all across the nation and ultimately the Hon’ble Supreme Court has stayed the operation of this judgment.

Case no. 2:

Libnus vs. State of Maharashtra; (decided in January, 2021)

In this case the Hon’ble Bombay High Court held that the act of ‘holding the act of prosecutrix’ or ‘opened zip of the pant’ doesn’t fall under the definition of ‘ sexual assault’ as per the POSCO Act (P.11 of judgment). Though, once again, the Hon’ble court found the accused guilty under other provisions of law.

On one hand, the judgment sets a bad/ tough precedent, but on the other hand, it can’t be denied that section 7 talks about the commission of physical contact and that too against only certain parts of the body to establish the guilt.

Here the act doesn’t squarely fall under the commission of physical contact with certain parts of the body, but it is definitely an act done in order to commit physical contact.

Having said so, it can easily be debated that when the Hon’ble Court could add ‘ skin to skin contact’ to the meaning of section 7 of the POSCO Act, then the ‘act done in order to commit physical contact’ could also be easily interpreted to place it within the ambit of s.7 of the POSCO Act.

The law which is meant to protect the rights of children and to provide justice when the rights are violated by the culprits often takes a different direction by the means of strict/ literal interpretation of the letter. At last it can only be submitted that everyone must remember that the law is enacted to serve the best interest of the society and every interpretation and endeavour must go to secure the ends of justice.

Advocate Lalit Ajmani

Advocate Lalit Ajmani

Volunteer

Advocate Lalit Ajmani is the Founder and Managing Partner of Ajmani & Law Partners, Law Firm (former ‘Law offices of Adv. Lalit Ajmani’).

The author handles diverse spectrum of cases especially civil, commercial, defamation, matrimonial etc; and he appears before different courts located in various parts of the country. Moreover, he is regularly consulted by foreign individuals and corporations. Further, his writings and research pieces are covered by major media houses.

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