Allahbad HC Calling A Case Of Child Abuse "Less Serious" Can Put Many In Harm's Way

The Allahabad High Court recently reduced the sentence of a man convicted of forcing oral sex upon a minor, stating that his offence was "less serious" than the provision for sexual assault as mentioned in the Protection of Children from Sexual Offences (POCSO) Act. The man's jail time was brought down from ten years to seven years, with the court observing, "Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault."

The case is disturbing, with the man having reportedly coerced the kid to perform oral sex in exchange for Rs 20. When the 10-year-old's parents enquired about how he got the money, the child narrated the horrific incident to them, as per News18. 

What perhaps is more disturbing, however, is the court's judgment that deems this penetrative sexual assault, punishment for which falls under Section 4 of POCSO, "less serious" than crimes falling under Sections 5 and 7, which relate to sexual assault and aggravated sexual assault.

A single-judge HC bench of Justice Anil Kumar Ojha heard the convict's plea challenging a Special Sessions Court verdict that had pronounced his ten-year sentence, ordering for a reduction.

Allahabad HC On Minor Sex Assault Case: Seeking Sensitivity In Legal Frameworks

Data published in the Indian Journal of Psychological Medicine shows that child sexual abuse in India has seen an alarming ascension during the COVID-19 pandemic-induced lockdown, with a 50 percent increase in crisis calls to child helplines. According to numbers from the National Crime Records Bureau (NCRB), 2018 witnessed a 22 percent jump in such crime cases with 109 children reported to have faced sexual abuse every day.

Against those statistics, it is bewildering that a High Court would rule a sex abuse case - any such case - as "less serious" than any other.

Sure, the sentence handed to perpetrators differs for penetrative sexual assault, aggravated sexual assault and sexual assault as mentioned under POCSO. For the first offence, the punishment ranges from 10-20 years of imprisonment extending up to a lifetime. For the second, the punishment cannot be less than 20 years. For the third, punishment can extend by five more years.

But can the seriousness of a crime be adjudged solely on the basis of imprisonment provisions? Should the legal framework be built better to accommodate subjective experiences and trauma? Are our courts not the authority on steering and implementing the law in a way that serves justice with sensitivity?

This is not advocacy for going above and beyond the law to reform punishment, although that is a crucial aspect of combating child sex abuse. This is a direct, grave concern over the way in which a court thought it justifiable to bring down a convict’s jail term and made a comparative statement on the case’s seriousness relative to others of its kind.

The Allahabad HC's ruling is as "absurd" (in the Supreme Court's words) as the 'skin-to-skin' judgment linked to POCSO passed by the Bombay HC earlier this year and which led to a furore.

Every single court order is a foundation stone being set on the path for the future of India's children. Robust legal systems will define how their safety nets are designed. Will judgments deeming some crimes against minors "less serious" than others ever build confidence in this section of society most vulnerable to violations? Can there ever be faith in the justice system with callous court conclusions pitting your grief against mine?

Views expressed are the author's own.

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