September 28, 2022

By Pratham Kaushik

INTRODUCTION

The Protection of Children from Sexual Offences Act was introduced in the year 2012 in order to provide measures to protect the children from any form of sexual harassment, penetrative or not penetrative. As far as I have read, a survey conducted by the Economic Intelligence Unit stated that India ranked the highest among the surveyed countries in efficient mechanisms to prevent child sexual abuse. It was also observed that India outranked a country like Sweden which is very well known for being a safe country and has a very good environment for children, as far as regularly ranking in the top 5 or top 10 in happiness indexes conducted by various survey conductors.

SALIENT FEATURES OF POSCO ACT

  1. The amended act provides for a more stringent framework for awarding punishments for offenders, increasing prison sentences in varied instances.
  • This act also includes child pornography as an offence and anyone in possession of such material is responsible to report it to appropriate authorities and if not, will carry a fine and a possible jail time.
  • A person convicted under this act can be given a 10-year sentence and a 20-year sentence is case of aggravated penetrative sexual assault. In some instances, even a death sentence may be given.
  • A person will be punished if found that he/she drugged a minor or has given any kind of hormone or chemical substance to increase the hormonal growth of a child to sexually abuse him/her.
  • The POSCO act is gender-neutral.[1]

RECENT STATEMENT BY ALLAHABAD HC

Just recently, the judge of the Allahabad High Court ruled out that oral sex does not fall into the periphery of aggravated sexual assault and reduced the sentence of the accused from 10 years to 7 years. The single judge bench lead by justice Anil Kumar Ojha reduced the sentence of the convict though his statement has been called flawed by various media outlets such as The Quint.[2]

WHAT WAS THE CASE?

The convict, Sonu Kushwaha had given 20 rupees to a 10-year-old boy and forced him to perform oral sex on him. When the boy talked about this incident with his family, the father of the victim filed a complaint which lead to Kushwaha’s arrest.

The article in The Quint states that the judgement ruled out by justice Ojha was flawed. The judge stated that the oral penetration was a case of penetrative assault and not aggravated penetrative assault, ignoring the fact that section 5 clause M of the POSCO Act clearly states that any sexual penetrative act done to a child below twelve years of age comes under aggravated sexual assault.

Even I personally felt while reading about this case that it is extremely incompetent on the part of the judge to ignore an essential fact like this, though his judgement was overturned and the act was categorized as aggravated sexual assault.

WHAT IS MY PROBLEM WITH THE POSCO ACT?

Many of you readers must have heard about a judgement by Bombay HC earlier this year that groping a minor girl’s breast without ‘skin to skin’ contact shall not amount to sexual assault under the POSCO Act though it was recently overturned by the Honorable Supreme Court.

I also read about a case where a 50-year-old man held hands with a minor girl and unzipped his pants after he tried to take her to his room. The act comes under the periphery of sexual assault under section 354A (1) (i) [3]and carries a three-year sentence whereas the accused only spent 5 months. The same man had exposed himself to a 5-year-old girl and asked her to sleep with him.

These are just some of the misreadings of the POSCO Act by the judges of India. A survey shows that 99% of the cases regarding child sexual abuse still are on the trial stage and pending. The Act does not clearly state what all documents are needed to be produced to ascertain the age of the victim and will the benefit of the doubt be given to the victim after a bone ossification test which is usually done if the said documents like matriculation certificate, school certificate or birth certificate are not submitted, this too has been mentioned in juvenile justice rules and not POSCO.

The National Crime Records Bureau in their survey of 2016 stated that 89.6% cases a still at pendency due to reasons like frequent adjournments and inability of the police to file appropriate reports. The quantum of acquittals in cases regarding POSCO is alarmingly high and a lot of the accused are set free either to do doubts in the age of the victim or their own personal view that the punishments in the act are way too severe for the act committed.

Maybe the act has its own shortcomings that are far from being a 100% corrected, but I am very sure the very implementors of the act do lack a sense of empathy somewhere somehow while sitting cases like these.


[1] FP Staff, no lowering of age limit to 16 from 18 for serious POCSO cases: What it means, challenges of preventing child sexual abuse. Firstpost, accessed on November 30, 2021. https://www.firstpost.com/india/no-lowering-of-age-limit-to-16-from-18-for-serious-pocso-cases-what-it-means-challenges-of-preventing-child-sexual-abuse-9881001.html

[2] The Wire Staff, ‘Oral Sex Isn’t Aggravated Sexual Assault Under POSCO Act’, Says Allahabad HC. The Wire, accessed on November 30, 2021. https://thewire.in/law/allahabad-high-court-oral-sex-pocso-section-6

[3] Sexual Harassment, § 354, No. 13, Acts of Parliament, 2012 (India)

1 thought on “Pocso Act Explained!

  1. When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get several e-mails with the same comment. Is there any way you can remove people from that service? Appreciate it!

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