Sexual Assault Protection Order

The Supreme Court stayed the Bombay High Court order that has freed a man of sexual assault charges under the Prevention of Children from Sexual Offences (POCSO) Act for groping a child, and instead convicted him under the Indian Penal Code (IPC) for a lesser offence.

• The ruling spotlights the concept of mandatory minimum sentencing in legislation, including POCSO.
• The court restrictively interpreted the lack of physical contact with sexual organs to mean that there was no physical contact.
• Section 7 of the Act says “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…”

1. Section 8 of the POCSO Act carries a sentence of rigorous imprisonment of three to five years. However, imposing the minimum sentence is mandatory.
2. Minimum sentences have been prescribed for all sexual offences under the POCSO Act barring the offence of sexual harassment.
3. In a 2001 ruling, the Supreme Court held that where the mandate of the law is clear and unambiguous, the court has no option but to pass the sentence upon conviction as provided under the statute.

• A mandatory sentence is prescribed to underline the seriousness of the offence, and is often claimed to act as a deterrent to crime.
• Mandatory minimum sentences are also prescribed in some cases to remove the scope for arbitrariness by judges using their discretion.

• Studies have shown that mandatory sentencing in laws lead to fewer convictions, because when judges perceive that the punishment for the offence is harsh, they might prefer to acquit the accused instead.
• A 2016 report on the ‘Study on the Working of Special Courts under the POCSO Act in Delhi’ by the Centre for Child Law at the National Law School of India University, Bengaluru, has highlighted the reluctance of courts in convicting under sections that carry a mandatory minimum sentence.

• Mandatory sentences are counterproductive to the aim of reducing crime or acting as a deterrent. Instead of harsher punishment, legal experts recommend judicial reform that makes the sentencing process more accountable and transparent. This would include holding transparent proceedings for sentencing, recording specific reasons for punishment in rulings, etc.