Sexual harassment and Punishment for sexual harassment Sec-11& 12-POCSO Act
11. Sexual harassment: A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
12. Punishment for sexual harassment: Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Explanation.—Any question which involves “sexual intent” shall be a question of fact all also be liable to fine.
Against the growing social menace of sexual harassment of women at the work place, a three Judge Bench of this Court by a rather innovative judicial law making process issued certain guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, after taking note of the fact that the present civil and penal laws in the country do not adequately provide for specific protection of woman from sexual harassment at places of work and that enactment of such a legislation would take a considerable time. In Vishakas case (supra), a definition of sexual harassment was suggested. Verma, J., (as the former Chief Justice then was), speaking for the three-Judge Bench opined :
2. Definition : For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as : (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks;
(d) showing pornography; (e) any other unwelcome physical, verbal or non- verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India. As early as in 1993 at the ILO Seminar held at Manila, it was recognized that sexual harassment of woman at the work place was a form of gender discrimination against woman. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment. These international instruments cast an obligation on the Indian State to gender sensitise its laws and the Courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. The Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law. [See with advantage Prem Sankar v. Delhi Administration, AIR 1980 SC 1535; Mackninnon Mackenzie and Co. v. Audrey D Costa, (1987) 2 SCC 469 JT 1987 (2) SC 34; Sheela Barse v. Secretary, Childrens Aid Society, (1987) 3 SCC 50 at p.54; Vishaka & others v. State of Rajasthan & Ors., JT 1997 (7) SC 392; Peoples Union for Civil Liberties v. Union of India & Anr., JT 1997 (2) SC 311 and D.K. Basu & Anr. v. State of West Bengal & Anr., (1997) 1 SCC 416 at p.438].
The scheme of the POCSO Act, and specifically to Sections 2 and 3 to submit that what is important for the purpose of Section 7 is “sexual intent”. Bisecting Section 7 into two parts, Mr. Dave submitted that the first part thereof pertains to the act of touching with sexual intent the vagina, penis, anus or breast of the child or making the child touch the said organs of such person or any other person, and the second part pertains to ‘any other act’ with sexual intent which involves physical contact without penetration. Thus, according to him, in both the limbs of Section 7, the mens rea i.e. culpable mental state – the sexual intent of the person accused of the said offence is very material. Pressing into service Section 29 & 30 of the POCSO Act, Mr. Dave submitted that the Court is required to presume the existence of culpable mental state on the part of the accused, and it is for the accused to prove in defence that he had no such mental state with respect to the act charged as an offence. Mr. Dave also relied upon the unreported judgments of various High Courts to buttress his submission that touching in an indecent manner with culpable mental state, would amount to “sexual assault” within the meaning of Section 7 of the said Act, even though there was no ‘skin to skin contact’ between the victim and the accused.
Skin to skin contact
Offence under Section 354 of IPC has a different connotation and different effect, which could not be incorporated for the purpose of interpreting Section 7 of the POCSO Act. The phrases ‘sexual intent’, ‘touches’ and ‘physical contact’ have not been defined in the POCSO Act, however the explanation to Section 11 states that any question which involves ‘sexual intent’ shall be a question of fact. Placing reliance on the decision of the Bombay High Court in case of Bandu Vithalrao Borwar v/s State of Maharashtra, in Criminal Appeal No. 50 of 2016, decided on 17.10.2016, it is submitted that the expression “sexual intent” can not be confined to any predetermined format or structure. He further submitted that unlike POCSO Act, the IPC offence under section 354 uses the terms ‘assault’ and ‘criminal force’. However, since ‘sexual assault’ is defined under the POCSO Act, the definition of the words ‘assault’ or ‘criminal force’ contained in IPC cannot be imported into the POCSO Act, though permitted under section 2(2) of the POCSO Act. While fairly conceding that the first part of Section 7 of the POCSO Act, which pertains to the act of touching the private parts of the child, may not require ‘skin to skin contact’, he however submitted that so far as, the second part i.e. “ the other act with sexual intent which involves physical contact without penetration” is concerned, ‘the skin to skin contact’ is required to be proved by the prosecution.
Sections 29 and 30 pertaining to the statutory presumptions read as under:
“29 -When a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.” “30 – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”.
Explanation – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
It may also be pertinent to note that having regard to the seriousness of the offences under the POCSO Act, the Legislature has incorporated certain statutory presumptions. Section 29 permits the Special Court to presume, when a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and Section 9 of the Act, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. Similarly, Section 30 thereof permits the Special Court to presume for any offence under the Act which requires a culpable mental state on the part of the accused, the existence of such mental state. Of course, the accused can take a defence and prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. It may further be noted that though as per sub section (2) of Section 30, for the purposes of the said section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability, the Explanation to Section 30 clarifies that “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. Thus, on the conjoint reading of Section 7, 11, 29 and 30, there remains no shadow of doubt that though as per the Explanation to Section 11, “sexual intent” would be a question of fact, the Special Court, when it believes the existence of a fact beyond reasonable doubt, can raise a presumption under Section 30 as regards the existence of “culpable mental state” on the part of the accused.
Meaning of Touch
The word “Touch” as defined in the Oxford Advanced Learner’s Dictionary means “the sense that enables you to be aware of things and what are like when you put your hands and fingers on them”. The word “physical“ as defined in the Advanced Law Lexicon, 3 rd Edition, means “of or relating to body………..” and the word “contact” means “the state or condition of touching; touch; the act of touching……”. Thus, having regard to the dictionary meaning of the words “touch” and “physical contact”, both the said words have been interchangeably used in Section 7 by the legislature. The word “Touch” has been used specifically with regard to the sexual parts of the body, whereas the word “physical contact” has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with “sexual intent” would amount to “sexual assault” within the meaning of Section 7 of the POCSO Act. [SC in Attorney General For India vs. Satish and Another Attorney General -18 /11/ 2021]
The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7. As held by this court in case of Balaram Kumawat Vs. Union of India , the law would have to be interpreted having regard to the subject matter of the offence and to the object of the law it seeks to achieve. The purpose of the law cannot be to allow the offender to sneak out of the meshes of law.
So far as the case of the other accused-Libnus is concerned, the High Court vide its impugned judgment and order, while maintaining the conviction of the accused for the offences punishable under sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act, has acquitted the accused for the offence under Sections 8 and 10 of the POCSO Act. Pertinently the High Court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty, also held that the acts “holding the hands of the prosecutrix” or “opened the zip of the pant” did not fit in the definition of sexual assault. In the opinion of the Court, the High Court had fallen into a grave error in recording such findings. When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of “sexual assault” within the meaning of Section 7 of the POCSO Act. The High Court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of “aggravated sexual assault” under Section 10 of the POCSO Act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the “aggravated sexual assault” as per Section 9(m) of the Act. However, neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused to escape from the clutches of Section 7 of the POCSO Act. The alleged acts of the accused in entering the house of the prosecutrix with sexual intent to outrage her modesty, holding her hands and unzipping his pant showing his penis to the prosecutrix having been held to be proved by the prosecution, they would certainly be the acts falling within the purview of the “sexual assault” as contemplated in the second part of Section 7 i.e. “……… or does any other act with sexual intent which involves physical contact without penetration”. The Court, therefore, has no hesitation in holding that the accused-Libnus had committed an offence of “sexual assault” within the meaning of Section 7 of the POCSO Act and the prosecutrix being below the age of 12 years, he had committed an offence of “aggravated sexual assault” as contemplated under Section 9(m) of the said Act, liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act. In that view of the matter, the judgment and order of the High Court insofar as it has set aside the conviction of the accused-Libnus for the offences under Section 8 and 10 of the POCSO Act is liable to be set aside, and the judgment and order of conviction and sentence passed by the Special Court is required to be restored. [SC in Attorney General For India vs. Satish and Another Attorney General -18 /11/ 2021]
Commission of Offence
It is pertinent to note Section 42 of the POCSO Act also clarifies that when an act or omission committed by the accused constitute an offence punishable under this Act and also under Sections 166A, 354A to 354D, 370, 370A, 375, 376, 376A, 376C to 376E or under Section 509 of IPC, then notwithstanding anything contained in any law for the time being in force, that the offender found guilty of such offence shall be liable for punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. Section 42A also mandates that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency. Thus the Legislature has taken many safeguards to overcome any technical objections relating to trial of the case under the provisions of this Act by the Special Court along with the offences under the Indian Penal Code including the sentence to be passed in such a situation. It has also taken care under Section 42A in dealing with the inconsistency between the provisions of this Act and the provisions of the other enactments stating that the provisions of this Act will prevail and have overriding effect on the provisions of the other enactments. So, there is absolutely no difficulty in taking the charge-sheet on to the file and to take cognizance of the case not only for the offences under this Act but also for the offences under the Indian Penal Code and the offences of ragging under the A.P. Prohibition of Ragging Act, 1997. It is also pertinent to note that even Section 8 of the A.P. Prohibition of Ragging Act, 1997 says that the provisions of the said Act shall be in addition to and not derogation to any other law for the time being in force. Section 7(2) of the A.P. Prohibition of Ragging Act mandates that if a student commits suicide due to or in consequence of ragging, the person who commits such ragging shall be deemed to have abetted such suicide. Therefore, in view of Section 8 of the A.P. Prohibition of Ragging Act and in view of Section 42A of the POCSO Act, it is clear that when the acts committed by the accused constitute offences under both the enactments, they can be tried for both the offences under both the enactments.
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