Allahabad HC has failed to read section 5 of the POCSO Act: Vrinda Grover

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The Allahabad High Court recently lowered the penalty imposed by the Special Sessions Court on a convict, found guilty of having oral sex with a 10-year-old child. The single-judge bench of Justice Anil Kumar Ojha reduced Sonu Kushwaha's punishment from 10 years to 7 years, observing that the crime committed by him is 'less serious'.

"Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into category of penetrative sexual assault which is punishable under Section 4 of POCSO Act," the Court observed. While the accused remains convicted, the reduced punishment caused outrage among sections of people who expressed concerns on social media.

Fact-checking both the Allahabad High Court verdict as well as the public interpretation of it, Delhi-based human rights lawyer Vrinda Grover says the court's reading of the POSCO law is wrong and that social media commentators, on the other hand, were reacting without reading the judgment in full.

Here are edited excerpts from her interview with Mid-day.com:

Is the recent Allahabad HC judgment, where the sentence of a convict was reduced, legally sound?

This is a case where a 10-year-old boy was forced. The accused put his penis into the mouth of a 10-year-old boy and he also ejaculated. The trial court convicted him for aggravated penetrative sexual assault. The HC says this is not a case of aggravated penetrative sexual assault, it is only a case of penetrative sexual assault. So the man continues to be convicted, he is not being acquitted.

According to me, the Allahabad HC's reading of the POCSO law is wrong. Section 3 of the POCSO laws defines the offence of penetrative sexual assault, which includes putting the penis in the mouth, in the anus, or any other body part. It is an offence under penetrative sexual assault which is punished under Section 4 of POCSO. Then Section 5 where they talk about aggravated sexual assault, it does not define any act, but defines in which circumstances an act will become aggravated sexual assault. So the act will remain the same, which will be putting the penis in the mouth or anus or other body part. These are coercive circumstances where the power of the perpetrator is even greater over the victim. Section 5 (m) says that if the victim is under 12 years of age, if the child with whom the penetrative sexual assault is committed is under 12 years of age, then this will be the case of aggravated penetrative sexual assault which is punishable under Section 6. The thing that changes between section 6 and section 4 is the mandatory minimum sentence is higher under section 6 and a little lower under section 4.

The case in question is a case of aggravated penetrative sexual assault because the age of the boy is 10 years. To my mind the Allahabad HC has misread the POCSO law. The law under section 5 does not say a new act has to be committed, it says in what circumstances. One of the circumstances is the victim being under 12 years of age and so the Allahabad HC's verdict, in my opinion, is erroneous.

The case in question is a case of aggravated penetrative sexual assault because the age of the boy is 10 years, says Vrinda Grover.

Is it right to say that the judge has made an observation that "oral sex" with a minor is a "less serious" offence that penetration?

The judge has not made an observation, he has passed an order. I think the order has not been read. He has convicted him, he has not said this is not a crime, so it is really up to the media to ensure that the correct information about the judgment and the law is relayed to the public. Unfortunately in the world of social media and Twitter, now it is being said that the judge has said that nothing has happened. That's not correct. The judge has convicted him for a substantial period of years. The law says it is even more coercive, therefore it should be taken up differently. However, it is up to the media to communicate both the law and the judgment correctly. If any wrong message is going out, it is because we are not reading the judgment.

Where does this judgment stand vis-à-vis SC quashing the recent Bombay HC judgment which said ‘skin-to-skin' contact was necessary for constituting sexual assault against children?

I don't think the two can be equated. They can only be equated to the extent that the court is not reading the POCSO Act clearly. Not understanding that the POCSO Act was made to protect children and therefore they should give effect to the words of the statute, a case was filed in the name of the Attorney General against the ‘skin-to-skin' judgment. The AG has filed and the Supreme Court has given a very clear verdict, saying that please understand the objective of POCSO: it is to protect children from sexual abuse and understand the effect on their psyche, emotional growth, etc. It is also saying the courts should understand the POCSO law and give meaning and effect to the words of the POCSO Act. Here again we see that the Allahabad HC has failed to read the section 5 of the POCSO Act which describes the greater coercive circumstances, so the law says if the child is not just a minor, but very young, therefore under the age of 12, the impact on the vulnerability of the child is even greater.

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