From Literalism To Purposivism: Judicial Interpretation Under The Pocso Act

Author(s): Devang R

Paper Details: Volume 3, Issue 5

Citation: IJLSSS 3(5) 51

Page No: 570 – 586

ABSTRACT

In this case the Supreme Court discussed the following principles of judicial interpretation:

Purported Legislative Intention and Object of the Statute: The Supreme Court emphasized that the main responsibility of interpretation involves the uncovering and effecting of the intention of the legislature. The POCSO Act was established in order to protect children against sexual abuse in all its different manifestations including non penetrative ones. The Court emphasized that it was too restrictive to view the phrase physical contact as merely meaning skin to skin contacts as this view would render the statute ineffective since there are numerous harmful acts (such as rubbing against a child over clothing with sexual motives) that would not be covered under the statute. Thus, the interpretation should be based on the protective intent of the Act, and not on its frustration.
Purposive Construction: The Court was purposive in its interpretation taking into account the general intent of the statute. A literal interpretation of touch would unfairly restrict protection whereas purposive construction guaranteed that all actions involving sexual intent of physical engagement with a child, whether direct or indirect physical contact, were subject to punishment. The Court, in its interpretation of the statute in the view of its purpose (child protection), took care of the law having a remedial and welfare goal.
Doctrine of Avoiding Absurdity: The Court referred to the rule that the interpretations with ridiculous or uncharacteristic outcomes should be avoided. Any acceptance of the interpretation of Section 7 POCSO that treats a skin-to-skin contact as a sexual assault would bear ridiculous results: the groping of a child under clothing would be exempt. The interpretation was unreasonable and against the design of the statute. The Court, in rejecting it, took a position to strengthen the fact that statutes should be interpreted in such a way that will avoid absurd loopholes.
Ut Res Magis Valeat Quam Pereat: The Court referred to the rule that the interpretations with ridiculous or uncharacteristic outcomes should be avoided. Any acceptance of the interpretation of Section 7 POCSO that treats a skin-to-skin contact as a sexual assault would bear ridiculous results: the groping of a child under clothing would be exempt. The interpretation was unreasonable and against the design of the statute. The Court, in rejecting it, took a position to strengthen the fact that statutes should be interpreted in such a way that will avoid absurd loopholes.
Rule of Lenity: The accused referred to the rule of leniency that states that any ambiguity in the criminal law must be addressed in favour of the accused. Supreme Court realized the principle but made it clear that it is only applicable in the cases where real ambiguity is present. Here, there was no ambiguity in the language used in Section 7, and touch with sexual intent, that is, not necessarily skin to skin. Therefore, mercy could not help to reduce protection and to sabotage the intent of the Act. The Court emphasized that leniency should not be used to disregard purposive interpretation in social welfare Acts.

In conclusion, the court in this case harboured a textual interpretation with purposive and contextual and protective interpretation, and hence the intent of the legislation and the protection of children was not lost in a hyper literal interpretation.

INTRODUCTION

Judicial role of statutory interpretation has been long between the competing trends of literalism and purposivism. This is known as literalism or the plain meaning rule which states that a statute should be interpreted without reference to any extraneous considerations taking into account its grammatical and ordinary meaning. This is a strategy that is usually supported with the reasons of having certainty and judicial restraint so that the courts do not take the role of the legislature. Nevertheless, it is argued to give unjust, impractical or even ridiculous results, especially in situations where a more literal interpretation defeats the remedial goal of a statute. In comparison, purposivism focuses on the will of legislature and social purposes that the statue is intended to achieve. It guides courts to interpret provisions in the light of their context, mischief and purpose so that the law is not turned into a mere formality. The Supreme Court of India has more than once said in R.M.D. Chamarbaugwalla v. Union of India¹, it is preferable that a purposive interpretation of a statute should be given in a situation whereby a literal interpretation would render an object of a statute nonoperative.

This literalism versus purposivism tension was put into the limelight in Attorney General of India v. Satish², in which the interpretation of Section 7 of the Protection of Children from Sexual Offences Act³, was concerned. The Act passed as a holistic law to protect children against sexual assault brings to view penetrative and non-penetrative attacks. Section 7 punishes sexual assault that consists of sexual intent contact. The Nagpur bench of the Bombay High Court had in an otherwise controversial case interpreted physical contact as skin to skin contact only thus excluding acts such as groping and touching a child beneath the clothing. This hyper-literally literal interpretation, though defined by text, radically limited the areas of protection of the Act and threatened to make certain major types of abuse unpunishable.

The Supreme Court vehemently opposed this strategy and instead took a purposive interpretation that complied with the object and design of POCSO. The Court reiterated that the main interpretation purpose is to fulfil legislative intent. The demand of skin-to-skin contact would frustrate the protective object of the statute, and would yield ridiculous consequences inconsistent with the welfare purpose of the statute. The Court relied on the doctrine of avoiding absurdity, which is an established principle that the interpretation of statutes should not follow any interpretations that will result in irrational or anomalous results. It also made use of the

¹ RMD Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

² Attorney General of India v. Satish, (2021) 5 SCC 280

³ Protection of Children from Sexual Offences Act, 2012, s 7.

maxim ut res magis valeat quam pereat and accepted a construction that made Section 7⁴ effective instead of making it nugatory.

Another case that the Court dealt with concerns the argument used by the accused where the rule of leniency is applicable and it provides that ambiguities in criminal statutes be interpreted against the accused. Although it admitted its applicability, the Court made it clear that it was only in the case of actual ambiguity where leniency is applicable. The reasoning of the Court in section 7 was that the words were clear in criminalizing all types of sexual touch with intent and not only skin-to-skin contact. So, no leniency could be employed to cut the protective rights of the statute in such a way that would put a thwart on the intent of the legislation.

Through the adoption of purposivism, the Supreme Court made sure that the remedial and welfare intention of POCSO could not be destroyed. Satish is therefore an instance of a more general interpretive tendency in Indian jurisprudence: a deliberate judicial shift out of hard- core literalism into an attitude of purposive, contextual and protective interpretation of welfare legislation. This interpretive change is examined in this paper putting AG of India v. Satish in the spectrum of statutory interpretation in India, and addressing the question of its consequences in judicial law-making and jurisprudence on child protection.

⁴ Supra note 3 at 5

CONCEPTUAL FOUNDATIONS: LITERALISM, PURPOSIVISM, AND BEYOND

Attorney General of India v. Satish⁵ has been analysed in a significant way. Satish needs to understand the interpretive doctrines upon which the Court reasoned clearly. These ideas are not only a way of setting the interpretive debate between literalism and purposivism but also offer the normative instruments that are used by courts to find their way in statutory meaning in situations with far-reaching social consequences.

LITERALISM

The literalism or plain meaning rule or the grammatical rule teaches that the ordinary and natural meaning of the statutory language should be applied, without any additional aids or judicial invention. It is strong because it is certain and faithful to the legislative supremacy and does not allow the judicial law-making. But, in a way that the Indian Supreme Court has been warning about, when the literal meaning of the text causes absurdity or undermines the purpose of the Act, courts need to consider more than the text itself. R.M.D. Chamarbaugwalla v. Union of India⁶, applying the literal interpretation to the concept of physical contact in the context of POCSO, when physical contact is interpreted as the direct contact between skin and skin, it is possible to conclude that the concept of literalism is also limited because there is a multitude of abuses covered by the scope of the law.

PURPOSIVISM

Purposivism obliges the courts to comprehend the statutes with reference to their purpose, construction and intent.

⁵ Supra note 2 at 5

⁶ Supra note 1 at 5

7 Reserve Bank of India v. Peerless General Finance & Investment Co., (1987) 1 S.C.C. 424.

It derives its foundation on the mischief rule, which was well-known in the case of Heydon, where the judges ruled that the courts should look at the flaw that the statute was created to address. Purposivism has often been put into practice by the Supreme Court during the interpretation of social welfare legislation. In Reserve Bank of India v. Peerless General Finance & Investment Co⁷, the Court decided that interpretation should be made based on the text and context, the words do take a colour on the context. In Satish, purposivism enabled the Court to accord the protective intent of POCSO a full interpretation of touch where the Court construed the meaning of touch as it means any physical contact with sexual intent.

LEGISLATIVE INTENT AND THE OBJECT OF THE STATUTE

The search of legislative intent is at the centre of purposive interpretation. Though one cannot equate intent to subjective motives of legislators, it is perceived to be the objective purpose that is represented in the statutory scheme. The statement of objects and reasons of the POCSO Act clearly explains the objective of that Act to prevent sexual abuse of children in any form. It would be counter-intuitive to this object to construct Section 7⁸ in such a way that non-skin-to- skin contact is not present. Therefore, the Supreme Court in the present case reiterated that interpretive fidelity did not exist in the strict textualism but in accomplishing the welfare purpose of the statute.

DOCTRINE OF AVOIDING ABSURDITY

The absurdity doctrine is that the statutory interpretations that have irrational or anomalous consequences cannot be adopted. In Shah v. Barnet LBC⁹ court have long been aware that the intent of the legislatures cannot be assumed to be its absurdity, In Satish, the Supreme Court concluded that it would be absurd to leave the over-the-clothes sexual assault out of the protections of POCSO, which practically legalises substantial areas of maltreatment. The doctrine was, therefore, a redress to the narrow interpretation by the High Court.

UT RES MAGIS VALEAT QUAM PEREAT

This is a Latin maxim, means that it is better that a thing should be doing than it should be undone, and represents yet another idea that statutes should be interpreted in a way which will not render them useless. When there are two interpretations, it is necessary that the courts should choose the one that will perpetuate instead of disavowing legislative intent. In Satish, the Supreme Court relied on this principle to make sure that Section 7 had expansive protective operation thus maximizing its remedial effectiveness.

RULE OF LENITY

The principle of leniency allows that statutory ambiguities should be interpreted against the accused. It represents the tenet that no person ought to face punitive action within the ambiguous law. Nevertheless, it is only applicable in true ambiguity. The Supreme Court made it clear as it was explained in Satish case that Section 7¹⁰ was not ambiguous: touch with sexual intent obviously included contact regardless of whether there was a necessary need to touch skin to skin. Notably, purposive interpretation (to ensure protection of vulnerable groups) should not be subordinated to leniency in the face of welfare laws such as POCSO.

⁸ Supra note 3 at 5.

⁹ Shah v. Barnet London Borough Council, [1983] 1 All ER 226 (HL)

10 Supra note 3 at 5.

ANALYTICAL EXAMINATION OF STATUTORY INTERPRETATION

BACKGROUND OF THE CASE

The Protection of Children against sexual offences Act, 2012 (POCSO Act)¹¹ was a new law created to address the major gaps in the Indian Penal Code (IPC)¹² and provide protection to children against sexual assault, sexual harassment and exploitation. Being a child-focused law, it acknowledged penetrative as well as non-penetrative crime, whereby the dignity and bodily integrity of the minors was prioritized. The Act indicates the Indian dedication to the United Nations Convention on the Rights of the child which was adopted in 1989 and stipulates that states must safeguard children against sexual abuse in all its manifestations.

The POCSO act defines sexual assault as given in section 7¹³ which states that, whoever with a sexual intent touches the vagina, penis, anus or breast of the child or causes the child to touch… or performs any other sexual act involving physical contact but not penetration. See Section 8, according to this provision, non-penetrative sexual assault is criminalized, with the punishment being applied to the acts that do not necessarily qualify as rape but still can be classified as sexual abuse.

In Satish v. State of Maharashtra¹⁴, acquitted the accused on POCSO, declaring that physical contact had to possess skin to skin contact. As the accused had been groping a twelve year old child on her clothes, it was held by the Court that the motion did not constitute a sexual assault under the Section 7¹⁵ but was subject to the Section 354 of the IPC¹⁶. The decision had a number of critics who argued that it was interpreting the law too narrowly and provided a loophole that was too dangerous, thus effectively disregarding numerous abusive acts under the protection of POCSO. The Court struck down the rationale of the High Court, purposely interpreting the Act in a manner that did not overturn the act of protection.

LITERALISM AND ITS LIMITS

The logic of the Bombay High Court depicts the shortcomings of a purely literal method. It narrowed the definition of Section 7¹⁷ by concentrating on the dictionary meaning of physical

¹¹ Protection of Children from Sexual Offences Act, 2012, Act No 32 of 2012

¹² Indian Penal Code, 1860, Act No 45 of 1860

13Supra note 3 at 5

¹⁴ Satish v. State of Maharashtra, Crim App No 161 of 2020 (Bom HC, Nagpur Bench)

¹⁵ Supra note 3 at 5

¹⁶ Indian Penal Code, 1860, s 354, Act No 45 of 1860

¹⁷ Supra note 3 at 5

contact, to include instances where there was direct contact with the skin. Although literalism focuses on textual faith, it is rigid and usually contravenes the remedial and welfare objectives of statutes. In the current case, it signified that groping, rubbing or touching a child through clothes; which are extremely invasive and detrimental acts would not fall under the jurisdiction of POCSO.

In this meaning, literalism established a distance between the text and the intent of legislation. Statutory provisions should not be interpreted to serve defeat to the purpose of its creation as it was subsequently highlighted by the Supreme Court. The literal reading of the Section 7¹⁸ not only reduced the scope of the law but it was also contrary to the object of the entire POCSO Act to protect children.

PURPOSIVISM AS A CORRECTIVE

The Supreme Court gave it a purposive interpretation whereby the interpretation of the physical contact could be interpreted based on the protective object of the POCSO Act. It was noted by the Court that the legislature purported to be punishing a wide scope of sexual behaviour that include acts that lacked penetration or direct skin-to-skin contact. It would be unreasonable to read the statute in a manner that flouts the remedial nature of the statute.

This intentional twist is in line with Indian jurisprudence. In R.M.D. Chamarbaugwalla v. Union of India¹⁹, the Court pointed out that the statutes were to be interpreted to fulfil the purpose. Equally, in Reserve Bank of India v. Peerless General Finance and Investment Co²⁰., it was considered that the text and the context are foundation of interpretation and that none can be overlooked to the expense of the other. Through purposivism, the Court in Satish kept the broad level of protection envisioned by Parliament, and acts of abuse, be it clothing or otherwise, would be subject to punishment under POCSO.

APPLICATION OF INTERPRETIVE PRINCIPLES

The Supreme Court used a number of established interpretive principles in coming up with its ruling, but in a manner that incorporated them into a purposive mechanism, instead of viewing them as stand-alone instruments.

¹⁸ Supra note 3 at 5,

¹⁹ Supra note 1 at 5.

²⁰ Reserve Bank of India v. Peerless General Finance & Investment Co., (1987) 1 S.C.C. 424

First, the Court reiterated the importance of the intent of the legislation. In accordance with the POCSO Act, the Statement of Objects and Reasons is clear that the law was meant to criminalize any form of sexual abuse of the children. Such an interpretation which restricts touch to skin-to-skin contact would render this point fruitless and leave important subsets of abuse beyond the scope of the law.

Secondly, the Court used the doctrine of avoiding the absurdity. It also held that a skin-to-skin condition would have absurd effects: groping or pressing against clothes, which are acts of universal consensus to constitute sexual assault, would not be subject to POCSO. The Court considered that such consequences could not have been meant by the legislature.

Third, the Court applied the maxim ut res magis valeat quam pereat, which focuses on the interpretation of statutes to avoid their ineffectiveness. Such a case as the reading of Section 7 would have made much of the provision ineffective, and would have been destructive of the scheme of the legislation. The Court favoured an approach that allowed the provision to be used in its entire usefulness.

Lastly, the Court also touched upon the rule of leniency, which the accused had relied on to persuade that any ambiguity in criminal law was to be interpreted in favour of the accused. The Court agreed with the principle but explained that it is applicable in cases of true ambiguity. Reading contextually, Section 7²¹ did not cause any ambiguity; it made unlawful any sexual touch with intent, and not necessarily skin to skin contact. The use of leniency in this case would destroy the object of the Act and the well-being of children.

BROADER IMPLICATIONS

The ruling of the Supreme Court in Satish has severe consequences of statutory interpretation in India. To start with, it strengthens the judiciary role in interpreting welfare laws in a way that satisfies the protective functions of the same. The Court was able to make sure that POCSO will be an effective instrument of protecting children by upholding purposivism over literalism.

Second, the decision highlights how the child centred jurisprudence should be. The interpretation of POCSO cannot be separated with constitutional obligation to ensure the dignity and bodily integrity of children in terms of Articles 14²², 15(3)²³ and 21²⁴.

Third, the setting is one in which the various interpretive principles are clarified in the judgment. Although there is a place of literalism in terms of ensuring judicial restraint, it must not be permitted to defeat remedial purposes. Likewise, the principles used such as absurdity avoidance and ut res magis valeat quam pereat are used as a protection of readings that undermine statutory efficacy. The principle of leniency, as based the criminal law, should be handled cautiously in such a way that it does not jeopardise the intent of the protective law.

²¹ Supra note 3 at 5

²² Constitution of India, art 14.

²³ Constitution of India, art 15(3).

²⁴ Constitution of India, art 21.

Lastly, the case places Indian jurisprudence in a global context of the purposive approach towards interpretation of law as applied in welfare and human rights law. Such a convergence between textual sense and legislative intent allows a court to maintain the law as a living tool, which has the capability to react to social realities.

FROM LITERALISM TO PURPOSIVISM

The interpretive process in Satish shows how the Indian statutory interpretation developed: a deliberate shift in direction away towards hyper-literalism to purposivism. This does not mean that the judiciary should ignore the text of the statutes but it acknowledges that text should be read in context, purpose-directed and energized by constitutional values. Purposivism is not merely a favoured approach in welfare legislation like POCSO, but a requirement of the law, which means that statutes attain their remedial and protective purposes.

The Satish judgment is therefore a milestone in reinstating purposivism as the appropriate approach of statutory interpretation in situations that involve vulnerable groups. It makes certain that the judiciary does not only interpret words but gives life to the intent of the legislation in order to ensure the preservation of the integrity of the statute as well as the rights which it was meant to guard.

CONCLUSION

The court life in Attorney General of India v. Satish²⁵ is the embodiment of the interpretive shift of rigorous literalism to purposivism in Indian jurisprudence, especially on the issue of welfare legislation. The Supreme Court upheld the fact that the statutory interpretation process could not be separated out of the legislative intent and constitutional values by rejecting the High Court interpretation that was skin-to-skin of Section 7 of the POCSO Act²⁶. The Act was passed on a definite protectionist agenda: to protect children against sexual abuse in any manifestation. This would frustrate this particular object by creating a literalist interpretation

that restricts the definition of physical contact to prevent any over-the-clothes attacks that would expose children to severe injuries.

By applying the principles of purposive construction, the norm of preventing absurdity, and the law of ut res magis valeat quam pereat, the Court was able to make sure that POCSO did not lose the entire remedial impact of its application. Meanwhile, its approach to the rule of leniency made it clear that, despite the significant role of leniency in the criminal jurisprudence, it cannot prevail over purposive interpretation where the language of the statute, construed contextually, is clear, and where protective legislation is involved.

This interpretation option provides a wider implication to the Indian statutory interpretation. It highlights the role of the judiciary in ensuring that they are able to reconcile the textual fidelity with social justice, particularly where there are vulnerable groups, like in the case of children. It is also an indication of a growing interpretive jurisprudence whereby the courts are open to going beyond hyper literate readings to make the law an efficient tool of justice.

Finally, Satish demonstrates that the interpretative process is not an automated practice in the precision of language but an intentional practice that seeks to achieve a purpose in the design of the legislation and constitutional values. Purposivism is not just an interpretation tool in welfare laws such as POCSO but a judicial obligation to maintain the sanctity of child protection. The court life in Attorney General of India v. Satish is the embodiment of the interpretive shift of rigorous literalism to purposivism in Indian jurisprudence, especially on the issue of welfare legislation. The Supreme Court upheld the fact that the statutory interpretation process could not be separated out of the legislative intent and constitutional

²⁵ Supra note 2 at 5.

²⁶ Supra note 3 at 5

values by rejecting the High Court interpretation that was skin-to-skin of Section 7²⁷ of the POCSO Act. The Act was passed on a definite protectionist agenda: to protect children against sexual abuse in any manifestation. This would frustrate this particular object by creating a literalist interpretation that restricts the definition of physical contact to prevent any over-the- clothes attacks that would expose children to severe injuries.

Finally, the case demonstrates that the interpretative process is not an automated practice in the precision of language but an intentional practice that seeks to achieve a purpose in the design of the legislation and constitutional values. Purposivism is not just an interpretation tool in welfare laws such as POCSO but a judicial obligation to maintain the sanctity of child protection.

²⁷ Supra note 3 at 5

REFERENCES

Attorney General of India v. Satish, (2021) 5 S.C.C. 280.
Satish v. State of Maharashtra, Criminal Appeal No. 161 of 2020
Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).
Indian Penal Code, No. 45 of 1860, INDIA CODE (1860).
R.M.D. Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628.
Reserve Bank of India v. Peerless General Finance & Investment Co., (1987) 1 S.C.C. 424.
K.P. Varghese v. Income Tax Officer, (1981) 4 S.C.C. 173.
State of Rajasthan v. Kashi Ram, (2006) 12 S.C.C. 254.
Heydon’s Case, 76 Eng. Rep. 637 (K.B. 1584).
Abhinav Sekhri, “Skin-to-Skin Contact and the Limits of Literalism under POCSO,” Indian Constitutional Law And Philosophy Blog (2021).
Anup Surendranath, “Literalism vs Purposivism: Lessons from the POCSO ‘Skin-to- Skin’ Case,” National Law School Review (2021).
N.K. Rana, “Purposivism and Literalism: Trends of Interpretation in the Context of the Split Judgment in Rana,” LawBeat (2021).
Shreya Atrey, “Interpreting Child Protection Laws: A Case for Purposivism,” Indian Law Review (2022).
Surbhi Karwa, “The Rule of Lenity and Welfare Legislation: Rethinking Statutory Interpretation in Criminal Law,” NUJS Law Review (2021).
Ministry of Women and Child Development, Annual Report on Implementation of the POCSO Act (Govt. of India, 2020).