RULES OF INTERPRETATION WITH REGARDS TO SECTION 7 POCSO ACT AND SPECIAL LEGISLATIONS

Author: Arpit Parakh, I year of LL.M. from National Law University, Odisha

Introduction

As a result of gaps in the legislation regarding the protection of minors from sexual offences of varying degrees and types, the POCSO Act was drafted. It is impossible to completely heal the pain and anguish caused by sexual assault, whether it was done against an adult or a kid, no matter how much effort is put out. The POCSO Act was designed to be as punitive as possible for two reasons: first, to ensure that punishment fits the crime, and second, to serve as a deterrent and reduce the likelihood of future offences of such nature. One such question with regards to the interpretation and understanding of the Section 7 and 30 of the POCSO act came before the Honorable Supreme court of India in the case of Attorney general v. satish,[1] wherein the Supreme Court has observed that the POCSO Act's provisions should be interpreted in accordance with the goals kept in mind by the legislators in order to fully achieve the legislation’s potential.

The question before the Supreme court revolved around the contention that which rule of interpretation is to be applied while interpreting the section 7 of the POCSO act. Herein with regards to the factual matrix of the case of Attorney general v. satish the accused satish had under the pretext of offering guava to the minor aged 12 years had taken her to his home and had sexually assaulted her by pressing her breasts, however there was not a skin-to- skin contact between the accused and the victim since the victim still had her clothes on while the accused committed the said acts over and above her clothes. Before we move forward we need to keep in our mind that section 7 of the POCSO act defines “sexual assault as touching of the private parts (vagina, penis, anus or breast) of the child with sexual intent or making the child touch a person’s private parts or doing any other act with sexual intent which involves physical contact without penetration” and also that section 30 of the POCSO act “creates a presumption of culpable mental state on the part of the accused”. Since POCSO act being a special legislation the burden of proof is reversed on the accused wherein the court will take a presumption against him of having a culpable mental state.

The single judge bench of Bombay high court at Nagpur heard the matter and acquitted the accused under the charges of POCO act stating that since there was no skin-to-skin contact between the accused and the victim the provisions of section 7 of the POCSO act cannot be attracted because section 7 provides that there has to be a physical contact between the accused and the victim and therefore the high court while interpreting the term physical contact in the said section meant skin to skin contact, therefore according to them since there was a layer of clothing between the skin of accused and victim therefore the provisions of section 7 cannot be attracted.

Application of Rule of Ejusdem Generis

While giving out the said observation the high court relied on the rule of “ejusdem generis” which means “When a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them”. Therefore for interpreting the section 7 to hold that the phrase "any other act" in the definition of "sexual assault" in Section 7 of the Act embraces the type of actions that are comparable to the acts explicitly enumerated. Therefore while interpreting & giving a narrow interpretation to the provisions of the act high court was of the opinion that term physical contact will include a skin-to-skin contact and will exclude all other acts where there is no skin to sin contact.

The question that needs to be looked into is whether while interpreting the provisions of special statues enacted for specific purposes such as that of POCSO act, whether the narrow interpretation of the provision is called for? One of the arguments raised by the accused on the similar lines was that since by the force of section 30, the burden of presumption of culpable state of mind on the accused is already very high in the special statues such as POCSO. the courts should while interpreting provisions of such special statues should apply the rule of lenity also known as rule of strict construction which provides, when a law is obscure or ambiguous, the court should apply it in favour of the defendant or interpret the legislation against the state, therefore under this rule the benefit of doubt is given to the accused due to ambiguity in legislation, therefore the argument of the accused relied on the fact that since there is ambiguity whether the word physical contact will include skin to skin contact, therefore the benefit of such ambiguity shall be interpreted in the favour of accused since the reverse burden of proof by the force of section 30 is already very high on accused.

The alleged ambiguity even if exists, would that absolve the accused of his liability for the acts committed by him? The special statues meant for some specific purposes if interpreted narrowly, will defeat the purpose of the enactment of the statues itself. In order to save the provisions of the act to defeat itself the court applied the rule of much wider interpretation so that the object the act sought to achieve can be fulfilled that is the protection of children against the crimes of sexual nature.

Application of Rule of Mischief

The Supreme Court while interpreting the section 7 applied the rule of mischief which was first propounded in the heydon’s case (1584)[2] wherein the court observed that the rule urges the court to consider what the law was before the passage of the act in order to determine what gap or harm the act was meant to fill. The court must then interpret the Act in order to guarantee that the gap is filled. Before POCSO act came into being there were general provisions like section 376, 354A of IPC etc. to deal with the offences of sexual nature, however in order to ensure the effective protection of children from the offences of sexual nature the POCSO act was enacted. Therefore the Supreme court was of the opinion with regards to the applicability of this rule in the matter of Attorney general v. satish that the narrow interpretation of the term physical contact to mean only skin-to-skin contact will defeat the purpose of enacting the legislation itself, because this might give the offenders an indication that if there is no skin to skin contact they might be absolved from their liability for any act done with a culpable mental state which might otherwise would’ve attracted the stringent provisions of the POCSO act, and thus this would’ve created a loophole in the form that even if the acts sexual acts done against a child with a culpable mental state done while wearing a piece of clothing such as gloves and condoms will absolve them from liability since there is no skin to skin contact.

Conclusion

Thus the Supreme Court was of the opinion that that any act done with the sexual and culpable intent against a child is, punishable under the POCSO act and skin-to skin contact is not a necessary requisite. Therefore in order to give effect to the provisions of the POCSO act and not to let the purpose of the act fail the rule of mischief or wider interpretation was required. However the state machinery or the judiciary while applying the rule of wider interpretation with respect to certain legislations have to be cautious because extremely wider interpretation will also sometimes defeat the purpose of the legislation. For example let us take the example of UAPA wherein The meaning of a "terrorist" remains ambiguous under the statute; nevertheless, amendments in 2019 have given the Central Government more authority to classify someone as a "terrorist" without a trial. [3]Furthermore, persons may be labeled as terrorists even if they have no connection or association with the 36 terrorist organizations specified in the UAPA's First Schedule, thus indicating that much wider interpretation to the terms may also result in the defeating the purpose of the act since under the said legislation there remains a apprehension that even the innocents might be charged and incarcerated for no sufficient reason. Thus in order to rectify the ambiguity or giving an appropriate scope to the certain terminology of a legislation the rule of mischief might be very much helpful since it will help the court to understand the intention of the lawmakers more clearly and will further prevent the misuse of certain legislations.

[1] Attorney general v. satish Criminal Appeal No. 1410 Of 2021 [2] Heydon's Case (1584) 76 ER 637 [3] Khan, N.S.and J., 2020. UAPA and the growing crisis of judicial credibility in India. ORF. Available at: https://www.orfonline.org/expert-speak/uapa-growing-crisis-judicial-credibility-india/ [Accessed September 24, 2022].