Updated: Feb 20, 2022
Written BY - Harshita Mani
Introduction Lately, The Protection of Children from Sexual Offences (POCSO) Act has been in news, after the Bombay High Court’s contentious judgments in child sexual abuse cases. The last time when this Act garnered interest was back in 2019, when an amendment was made to it which increased minimum punishment for aggravated as well as penetrative sexual assault on children below 16 years from 10 to 20 years, and was extendable to life imprisonment or death. The Indian Penal Code deals with child sexual abuse too, so what was the need for a separate legislation and how is it different from the IPC? What is the POCSO Act? The Protection of Children from Sexual Offences (POCSO) Act, 20121 is a legislation passed by the Parliament of India that specifically deals with protection of children from sexual assault, sexual harassment and pornography. What makes it different from similar offences listed in the IPC is that it is gender neutral for both children (victim) and for the offender. It lays down a resilient legal framework which is child centric at every level of the judicial proceedings. It defines a child as a person below the age of 18 years. However, it doesn’t take into account people who are intellectually and psychologically challenged. The Act widened the definition of sexual assault against children by including sexual harassment (Section 11 & 12) which involves touch and which doesn’t, aggravated penetrative sexual assault (Section 5 & 6), aggravated sexual assault (Section 9 & 10) along with sexual assault (i.e. the insertion of penis/object/another body part in child's vagina/urethra/anus/mouth, or asking the child to do so with them or some other person). (Section 7 & 8)
It also criminalized acts of immodesty against children too. This means that the law recognises stalking, making a child expose themselves or exposing themselves to a child, etc as sexual harassment. In addition, the act also punishes persons exposing children to, or using children as child sexual abuse material (CSAM) or pornographic content (Section 14 & 15). The Act criminalized watching, collecting or making of pornographic content concerning children (Section 15). This Act regards abetment of sexual violence against children as an offence and provides for the punishment for the said offence (Section 16 & 17). Furthermore, whoever attempts to commit an offence punishable under this Act or to cause such an offence to be committed, and while doing so, acts towards the commission of the offence, it punishes them with imprisonment or fine or both (Section 18) Section 19 of the Act makes it mandatory to report such sexual crimes against children. It also makes it a duty of the media, studio or any photographic facility to report such offences (Section 20). If a person has any kind of information regarding sexual abuse of a child and fails to report it, they may face imprisonment or may be fined or both (Section 21). This particular provision was met with mixed reactions.
This Act also punishes anyone who makes false complaints or provides false information in regards to offences described under Sections 3, 5, 7 and 9. No punishment shall be imposed on a child who provides false information (Section 22). The POCSO Act envisages a child-friendly approach in reporting, investigation, evidence collection and speedy trial of offences in Special Courts. This Act places the burden of proof on the accused i.e. the accused is guilty until they prove themselves to be innocent. A Clear Case of Misinterpretation The Bombay High Court on 19 January 2021 delivered a contentious verdict in the case of Satish Ragde vs State of Maharashtra, which goes against the letter and spirit of the POCSO Act. The controversial judgement delivered by Justice Pushpa Ganediwala that stated that “physical contact” under the Section 7 of the Act should be understood as “skin to skin contact”, i.e. it is a requisite for the accused to have had skin to skin contact with the victim in order to bring the offence in the ambit of Section 8 of the POCSO Act. In the above-mentioned case, the 39-year-old accused lured a 12-year-old girl(victim) to his house on the guise of giving her a guava and touched her breast and tried to remove her clothes, at which point the victim’s mother based on the details told to her by the neighbours reached the man’s house and rescued her daughter, who the accused had locked in a room and immediately filed an FIR. The accused was convicted by the Special Court under Section 354 (outraging a woman’s modesty), Section 342 (wrongful restraint), Section 363 (kidnapping) of the Indian Penal Code2 and Section 8 of the POCSO Act. He was sentenced to 3 years in prison and a fine of Rs 500/- was imposed. He then approached the Bombay High Court challenging the judgement of the Special Court which is when the controversial interpretation of ‘physical contact’ under Section 7 of the POCSO Act was delivered. The nucleus of the judgement was whether the act of touching the breast of a minor girl and attempting to remove her clothes would count as sexual assault under Section 7 of the POCSO Act which states; “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.” And would be punished under Section 8 of the POCSO Act which reads; “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
In the judgement, the single judge highlighted that there must be (a) sexual intent (b) direct physical contact i.e. skin to skin contact to constitute a sexual assault under Section 7 of the POCSO Act. The honourable judge acquitted the man of charges under Section 8 of the POCSO Act. But convicted him under Section 354 of IPC (outraging the modesty of a woman). The judgment also stated that there was not enough substantial proof or serious allegations and the benefit of doubt was granted to the accused. This statement out and out ignores Section 29 of the POCSO Act which says;
“Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 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.”
This judgment rightly seems to be questionable and puzzling in the first read and problematic and outrageous as you read further. It is clearly a misinterpretation of the Section 7 of the POCSO Act as well as a complete contradiction to the legislative intent. Nowhere in the Act is there a mention of clothes acting as a barrier and by equating “physical contact” to “skin to skin contact” is against the very spirit of the Act. Furthermore, the prosecution of the accused under IPC instead of the POCSO Act defeats the objective and intention behind the introduction of such a legislation. And by granting the accused the minimum punishment of 1 year outright mocks the seriousness of the offence and portrays it to be trivial and insignificant. In addition, this judgement has definitely set a precedent which is binding on all lower courts.
On January 27 2021, the Supreme Court stayed the acquittal under the said judgment of Bombay High Court and issued a notice to the accused. The stay issued was a stay of execution i.e., the implementation of the said judgment is halted until further notice.
The impugned judgement of the Bombay High Court clearly shows how out of touch the system is with reality and turns a blind towards the consequences faced by the victim and people in similar situations as that of the victim. This not only makes light of the victim’s situation but also undermines the judgement of specialised/lower courts.
This Act was passed in order to effectively address the heinous crimes of child sexual abuse and sexual exploitation through less ambiguous and more stringent legal provisions. It was amended in 2019, to make provisions for increasing punishments for various offences so as to deter the perpetrators and to ensure safety and security of the child and also to ensure that the child has a dignified childhood. It is true that the children who are victims of such crimes have long term trauma that hinders them to move forward in life. And the purpose of the designated Special Courts is to give fair, just and timely relief to the victims of child abuse so as help them move past it, but the judgements like one mentioned above do the exact opposite. The POCSO Act was enacted to curb incidents of child sexual crimes and if the courts stray away from the spirit and intent of the legislation and continue to safeguard the offender then they defeat purpose of existence of such a law.
1 Protection of Children from Sexual Offences (POCSO) Act, 2012 https://wcd.nic.in/sites/default/files/Protection%20of%20Children%20From%20Sexual%20Offences%20%28Amendment%29%2 0Act%2C%202019.pdf
2The Indian Penal Code (45 of 1860)