Protection of Children from Sexual Offences Act, 2012 (or also known as the POCSO Act) was enacted to protect children from sexual offences and to introduce children-friendly judicial procedures to deal with such offences. The act by nature is gender-neutral. The act defines a child as “any person below the age of 18 years”, setting the tone of the framework of being accessible to all the victims of child sexual abuse, irrespective of their gender. The framework also doesn’t differentiate between the perpetrators of the sexual abuse based on gender. This is unlike IPC, especially Section 375 that deals with rape, where the victim is always a woman and the perpetrator are a man. Considered to be a flagship feature of the Act, the act not only punishes those who perpetrate sexual abuse, but also those who are aware of sexual abuse being committed and don’t report the crime, by punishing them with imprisonment, a fine, or both. Section 19 of the Act places a mandatory obligation to report child sexual abuse. The section places a mandatory obligation on any person who has knowledge or awareness of or suspects sexual offence being committed against a child to report it to the local police or the Special Juvenile Police Unit. Under Section 21 of the Act, “any person in charge of a company or an institution who fails to report the commission of a sexual offence involving a subordinate under their control faces imprisonment and a fine”. Children, on the other hand, are exempt from any non-reporting obligations under the act. Over the years since the Act came into existence, multiple criminal charges have been filed against several people, mostly against those who hold positions of power in educational institutions, for covering up child sexual abuse cases.
Acknowledging the trauma that a child sexual abuse victim endures and how it impacts them registering a complaint, the Union Ministry of Law and Justice in 2018, issued a clarification which stated that under POCSO there is no time or age bar to be observed for reporting a sexual offence. Therefore, a victim of child sexual abuse could report an offence even years after the offence has been committed. Consequentially organisations that deal with children in India can’t refuse to entertain complaints of child sexual abuse against their employees on the ground of lapse of time. The Act also mandates confidentiality over the victim’s identity. Under Section 23 of the Act, it is prohibited to disclose the identity of the victim in any form of media, unless allowed by special courts which are established under the Act. Supreme Court has also reiterated this position in 2018 when it issued directives forbidding disclosure of the victim’s identity on social media. In 2020, the government introduced a new set of POCSO rule which has three key points for any organisation that deals with children in India. The first is that any employee who works at an organisation that houses children or has regular contact, and who may interact with a child is required to undergo a periodic police check and background check that is conducted by the organisation he is employed with. Second, any such institution must provide must train its employees in a manner to raise awareness of child safety and protection. Finally, it must implement a “child protection policy based on the principle of zero tolerance” for child abuse. This policy must be consistent with the state government’s child protection policy in the area where the organisation operates.
In-State of Maharashtra v. Satish Jalindar Shinde, it was observed that it is not necessary that the victim’s protest has to be shown by marks of struggle. The judgement also reiterated that under the law, consent of a minor is no consent. The position taken by the Court in this judgement expanded the scope of the POCSO Act and allowed the Court to clarify and send across a message that “Friendliness does not mean right to engage in sexual intercourse against the desire of other person”.
Calcutta High Court observed that when convicting an accused for penetrative sexual assault, the victim’s maturity and behaviour with the accused becomes important and, on that basis, acquitted a rape accused remarking that sexual acts with minors which are voluntary in nature won’t be constituted as a case under POCSO. In doing the Court disregarded setting coercion to gain the consent of the mature minor victim as be criteria to a sexual offence under POCSO. Madhya Pradesh High Court held that just requesting the accused to not rape the minor instead of informing the police of the offence, amounts to aiding under POCSO. The High Court held that when the minor specifically alleges that she is being raped by the co-accused and instead of informing the local police, the applicant simply requests the co-accused not to engage in such an act, it falls under the definition of abetment because the applicant’s act amounts to aiding the co-accused in committing the rape on the minor.
Earlier this year, the Bombay High Court gave a controversial judgement. Nagpur Bench of Bombay High Court held that the “act of groping a child’s breast, without any skin-to-skin contact and sexual intent” doesn’t amount to sexual assault under POCSO Act. The bench held that a minor girl’s breast being touched without removal of her top won’t classify as sexual assault, rather it is termed as outraging the modesty of a woman under Sec 354 IPC. The high court’s interpretation came as it read down a trial court order against the appellant, who was found guilty of sexual assault under the POCSO and various IPC sections, including outraging a woman’s modesty, kidnapping, and wrongful confinement. The man was sentenced to three years in prison for sexual assault and outraging modesty, as well as two years in prison for kidnapping and six months in prison for wrongful confinement. All of the jail sentences were ordered to run at the same time. The HC acquitted the man under POCSO and only found him guilty of the minor offence of outraging modesty, and sentenced him to one year of rigorous imprisonment. The Supreme Court overturned the decision, ruling that it is sexual intent, instead of skin-to-skin contact with the child, which is the most important factor when it comes to defining sexual assault. According to the bench, “touching of the sexual part of the body or any other act involving physical contact that is done with sexual intent” is considered sexual assault under Section 7 of the POCSO Act.
The Allahabad High Court gave a verdict that an offender’s penetrative sexual assault on the victim, per incuriam (a ruling handed down without due regard to the law and facts), does not constitute an aggravated form of the crime. The child was forced to perform an oral sexual act, which was proven in the court of law, however was endorsed without any objection by the High Court. Because the accused had put his penis into the victim’s mouth, the Court was of the opinion that it was a “penetrative sexual assault” as per POCSO Act. However, it did not amount to being “aggravated penetrative sexual assault”, under the stature, a crime which is punishable by a minimum of ten years in prison and a maximum of life in prison, according to the ruling. Instead, the perpetrator was held liable under POCSO Section 4, which stipulates a minimum sentence of seven years. As a result, the 10-year sentence imposed by the trial court was reduced to seven years. The High Court overlooked the fact that, under POCSO, a sexual offence can take on the characteristics of an aggravated form of the same offence in certain circumstances. A police officer, a member of the armed forces, a public servant, or a member of the staff of a jail, remand home, hospital, educational or religious institution, or any other place of custody or care and protection is the offender, according to Section 5. These aren’t the only circumstances, though. It is also an aggravated form of the offence when the crime involves a group of offenders or is committed repeatedly, or when it involves the use of deadly weapons or causes grievous harm or injury, or when it results in physical or mental incapacitation, pregnancy, or disease.
It can be gathered from the above-stated examples of cases that there are no consistencies in the kind of interpretations that are made of the POCSO Act. Some interpretations expand the scope of the Act and some of those limits and even dent the scope of the Act. Such interpretations are detrimental to child rights and require timely intervention, as the Supreme Court did during Bombay High Court’s controversial skin-to-skin judgement. POCSO is aimed to tackle the power imbalance between a minor victim and the major perpetrator by according more status to the victim in the legal and procedural methods. Inconsistent interpretations, that deviant from the scope of the Act, actually makes the power imbalance greater, ultimately becoming disastrous for the victims.
Author(s) Name: Avisha Dhiman (Maharashtra National Law University, Mumbai)