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“We must protect families, we must protect children, who have inalienable rights and should be loved, should be taken care of physically and mentally, and should not be brought into the world only to suffer” ~ Indira Gandhi
The Protection of Children against Sexual Offences (POCSO), 2012 is a welcome development against the rising crimes indulging Child Sexual Abuse (CSA). CSA was a hidden problem highly ignored by people of India. The act came into being after various voices raised from different nooks and corners of the world through numerous non-governmental organizations. The attention of Ministry of Women and Child Development was also drawn towards this rising issue. The POCSO Act came with various distinctive features and ensured the protection of children from exploitation in every possible manner. Recently amendments are also being made to match up with the changing times but still there is a long way to go. This article deals with the phenomenon feature of POCSO Act along with some recent issues which have become some weaknesses of this act and the judicial system of India.
According to 2011 Consensus of India, the total child population of the country is 15,87,89,287 which is between the age 0-6 years and 472 million children below the age of eighteen. The makers of constitution gave responsibility for guaranteed Protection of Children to The State under the expansive reading of Article 15 of The India Constitution which confers upon the state to make laws and policies for ensuring protection of children. Also, under Article 39 of The Indian Constitution, state is directed to make its policies for securing the children of tender age and that youth should be ensured to be protected against any abuse or exploitation. India has also sworn to protect the rights of children in UN Convention on Rights of the Child on 11th December, 1992 and is also a signatory member in it as well. There were growing concerns for female infanticide, child rapes and abuse of children which led the government to collect a large- scale data to access the extent and reality of child abuse. The rising statistics of National Crime Records Bureau was a great matter of concern for the state and an immediate legislation ensuring protection of children from all sorts of exploitation was felt and hence, the Parliament of India passed the ‘Protection of Children Against Sexual Offences Bill, 2011’ regarding child sexual abuse on 22 May 2012 and gave it a status of an Act.
The Protection of Children from Sexual Offences Act (Hereinafter POSCO) is a comprehensive law which gave protection to children against offences of sexual assault, sexual harassment and pornography which primarily aims at making every stage of the judicial process a child friendly mechanism starting from reporting and recording of evidences to speedy trial of offences through designated Special Courts, which further adds to the efficiency of this law. To make the laws even more stringent for the wrongdoers, POCSO was amended in 2019 wherein the punishment for both aggravated as well as penetrative sexual assault on children was increased from 10 years to 20 years which can be extended up to life imprisonment.
Distinctive feature of POCSO Act:
In the POCSO Act of 2012, the term ‘rape’ is not commonly used anymore, rather it broaden the horizons related to the offences termed under ‘penetrative sexual assault’ which further includes oral sex or insertion of any object to vagina or mouth. POCSO criminalizes and covers wide range of behavior and put under the ambit of sexual assaults (defined under Section 7 of POCSO) to prevent people from exploiting lives of innocent children. Stringent laws are imposed and penalties are explicitly made stronger for the offences of ‘aggravated penetrative’ and ‘non-penetrative’ sexual assault. POCSO Act is also a forward-looking legislation which covers the definition of sexual harassment which further includes repeated and constant following, watching or contracting a child directly, electronically or through any other means. This provision is covered under Section 11(iv) which protects the children from exploitation from any means for example- sexting or cyber bullying. However, a clear picture that what exactly is included in ‘repeated’ and ‘constant’ bullying is not given in the POCSO Act. Another distinctive feature of POCSO Act is Section 16 which penalizes abetment to commit any offence listing in the provision of the section. The inclusion of provision of Section 35 facilitating Special Courts to take charge and conduct trials in a more sensitive manner and to maintain confidentiality of the identity of child.
When is POCSO used?
POCSO is used when the sections of this act are added in the FIR i.e First Intimation Report if a sexual offence is committed against a child. The special laws of POCSO overrides the provisions of Indian Penal Code. Both the sections of IPC and POCSO are generally mentioned in the FIR that means an FIR can mention Section 376 of IPC and relevant sections of POCSO as well.
Recent controversial cases involving POCSO:
The POCSO Act came in limelight soon after the two controversial judgements of Bombay High Court Justice Pushpa Ganediwala in the recent cases which draws the attention of everyone on the scope and interpretation of Section 7 of POCSO Act and encourage people for thinking toward the urgent need of amendment of the above act.
In the case of Libnus V/S State of Maharashtra,
The informant after returning from her duty saw presence of accused in her house molesting her minor daughter who was aged about 5 years. The accused was convicted by the trial court for committing ‘aggravated sexual assault’ punishable under section 10 of The POCSO Act. Section 10 of POCSO, 2012 which says that Whoever commits aggravated sexual assault shall be punished with imprisonment for minimum term of five years extendable up to seven years and can also be held liable to pay fine. A sexual assault is defined under Section 7 of The POCSO Act, 2012 which is stated as 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 which involves physical contact without penetration is said to commit sexual assault.
In the present case, the court held that unzipping of the pants doesn’t fit in the definition of ‘sexual assault’ and opined that the aforesaid acts were not sufficient for making the accused liable for the alleged offence under ‘aggravated sexual assault’.
Also read: Safety of workers under Factories Act 1948
In the case of Satish V/S State of Maharashtra,
Prosecutrix aged 12 years old was brought by the appellant to his house on the pretext of giving her guava but the appellant touched her breast and also tried to remove her knicker. Strangely it was held by Bombay High Court Justice Pushpa V. Ganediwala that there was no direct skin-to-skin physical contact with sexual intent to be held it as a ‘sexual assault’. The major question before the bench was regarding that whether ‘pressing of breast’ and ‘attempt to remove knicker’ is a part of ‘sexual assault’ stated under Section 7 of POCSO Act or not? The Bench expressed that in the absence of any proof or detail that if the top of the prosecutrix was removed or not, put the fact of skin-to-skin physical contact in question. The act of pressing of breast fall under the offence defined under Section 354 of Indian Penal Code, 1860, which stated that pressing of breast with an intention to outrage a woman’s modesty attract a minimum punishment of one year extended up to 5 years along with liability of fine.
The decision is being made by the High Court making a very narrow interpretation of such a sensitive and important matter which might affect several other legislations as well and will definitely have a cascading effect on the safety of women and children. The judgement of High Court is quite unprecedented and is likely to set dangerous precedent for the future. This judgement can highly have an adverse impact on the basic rights of women who are victim of the sexual offences in the society. Not only this, such perverse interpretation of physical contact will undermine the statutory legislations which are precisely made for the protection of the interests of women.
The above-mentioned cases put the definition of sexual assault in POCSO Act under a question and needs further amendment with regards to the act. With the changing circumstances, a great need for amended legislations are felt as well. The major questions before us are that whether ‘unzipping of pants’ and ‘pressing of breasts’ without skin-to-skin contact comes under the category of sexual assault. For redefinition of Section 7 of POCSO Act, the intent behind the act should also be taken into account. Thinking about these matters from a common perspective, why a man would unzip his pants or why he would press the breast of a girl? Does these acts can be done without sexual intent? A clear answer to this is a big NO. Any prudent and reasonable man would not do such act without any malafide or wrong intent. Such a judgement would have very bad consequences in the society and people might increase exploiting children. No man can ever be given a right to press the breast of any girl or unzip his pants wherever he wants. Such sensitive issues should be more looked into from the eyes of a common man and not truly from the glasses of laws. These judgements of Bombay High Court are also considered as insensitive.
In the case of Virender Singh v. State of Himachal Pradesh,
Another recent case related to POCSO Act is the Himachal Pradesh High Court’s judgement. The facts of the case are as such that an unmarried boy aged 24 years loved a 16-year-old girl had sexual intercourse and the girl’s father files a FIR against the boy. The court observed that petitioner and the victim knew each other and were romantically involved and there was no forcible relationship.
There are some important elements of the POCSO Act which can be drawn from the above recent case and its judgement:
1) Age of consent:
According to Section 2(d) which states that a Child is any person below the age of eighteen. A person is entitled to consent who has attained the age of majority i.e eighteen years old that means a person below the age of eighteen is not entitled to consent for a sexual act. POCSO Act is made for protecting children who are ‘victim’ from sexual acts mentioned under the act. Before POCSO Act came into being, the provision stating legal age to consent for engaging in a sexual activity was mentioned only under Indian Penal Code, 1860. The age of consent was fixed as 18 years for boy boys and girls only after the inhumane Nirbhaya gang rape case and after the execution of the Criminal Law (Amendment) Act, 2013. Under Section 375 of Indian Penal Code, 1860, it is stated that any man who had intercourse with a female below the age of 16 years is considered as a crime, irrespective of her consent. There is an exception to this provision that the man should be married with his wife above 15 years of age. Under this act, irrespective of the consent, if a person engages in a sexual act with a minor before or after marriage amounts to Sexual assault.
2) Consensual Consent:
Nowadays a significant number of cases under POCSO are registered where the sexual act is done for displaying interests to find a romantic partner. Majority of cases are reported involving adolescents aged 13-19 years engaged in some form of sexual intimacy to express their love for their partner. A study done by National Law School of India University’s Centre for Child and the Law (CCL) did a survey in five states revealing that 21% in Delhi, 21% in Andhra Pradesh, 20% in Maharashtra, 15% in Assam and 5% in Karnataka were reported in context of a romantic relationship. If there is a case of consensual sex which is done between two minors, then the concepts of victim and perpetrator becomes interchangeable and is criminalized under the act. Such acts where the wrongdoer is minor, is given protection under the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 and is not considered as a criminal but all sort of methods is used to transform him into a good human being. In 2013, a notion that human body is a property of the State who was under the age of eighteen years was rejected by a Special Court judge. In this case, a 15 years old girl eloped with 22 years old man but the judge stated that criminalizing such behavior would not serve the purpose.
As stated by Madras High Court Justice Anand Venkatesh, “What come to be a law to protect and render justice and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.” Clearly points towards the lack of scope, ambit and nature of cases where teenagers are involved in romantic relationships under the POCSO Act. Its a need of hour for our judiciary to focus on this aspect also which is highly becoming normal but no due attention is yet given to this deficiency present in the act and come up with an amended act adding the provisions lacking in POCSO Act.
POCSO Act, 2012 has undoubtedly done a very significant contribution for protecting the interests of the children and prevent their exploitation in every possible manner. The Act helped in tackling the problem of Child Sexual Assault. A wide range of sexual assaults and unacceptable behaviors are covered under this act which pose threat to children. POCSO is an excellent piece of legislation and covers almost every form of sexual abuse. The judgements of the cases discussed above are quite shocking and are flawed in itself. It also poses a question on the law itself and demand redefinition of the law so that it could match up with the changing times. The main object of the POCSO is to empower the survivor but the recent judgements given by the High Court Judges rather than empowering, are abusing the survivor. The adolescence age is considered as a crucial stage of humans as many psychosocial and developmental changes took place in this time period. It is very important to protect their tender mind in this stage especially. Giving their children good values and learning is the duty of parent but if something wrong had happened to a child, it is the duty of state to give him justice which duty is delegated to the Judiciary. Children are the future of our country and their exploitation should be stopped at all costs.
 Libnus V/S State of Maharashtra (2021 SCC OnLine Bom 66)
 Satish V/S State of Maharashtra (2021 SCC OnLine Bom 72)
 Virender Singh v. State of Himachal Pradesh (2021 SCC OnLine HP 280)
 Sodhi, G, Verma, M, Pelto, P. Seeking gratification: a study of sexual behaviour patterns of adolescents in an urban slum. In: Koenig, MA (ed) Reproductive Health in India: New Evidence. Jaipur, India: Rawat Publications, 2008, 303–322.
Author: AISHWARYA PATNEY
Editor: Kanishka Vaish, Senior Editor, LexLife India.