Here’s Why Child Sexual Offenders Should Be Charged Under POCSO & Not IPC

Trigger Warning: Rape, Sexual Assault

Is India a dangerous place to be a girl child or a woman?

We have seen eight-month-old babies, as well as a 100-year-old woman and young girls being sexually assaulted or raped at schools, colleges, and the workplace. The Nirbhaya case, the Mathura rape case, the Kathua rape, the Sitapur gang rape and many more involving minors have time and again come up. Even after having a plethora of sexual crimes and laws being enacted against them in India, has the government and the judiciary done much to ensure that every person in this nation is provided with safety and justice? Or is it still a culture of normalising sexual assault, and advising young women how to dress, therefore normalising misconduct?

A number of instances of sexual savagery and misuse have been uncovered lately, with words like “grabbing”, “petting”, “improper contacting/touching” springing up over and over again. All these terms typically and ideally define sexual assault, but the judgements passed by the Bombay High Court say otherwise.  

Yet another judgment has been passed by the Bombay High Court (Nagpur Bench) after the first one that took place on the 24th January, 2021—National Girl Child Day—which stated that grabbing a minor’s breast without “skin-to-skin contact” can’t be sexual assault as characterised under the Protection of Children from Sexual Offenses (POCSO) Act.  The same has been stayed by the Supreme Court. This case had already shaken the public of the country with the threat that sexual crimes will now increase more and the relevance of POSCO will not remain the same.

Shockingly, in another case Libnus vs. the State of Maharashtra, a similar decision given by the Nagpur Bench of Bombay High Court has led to the questioning of the validity of POCSO in the country. The judgment states that holding hands of a minor girl and unzipping her pant would not lead to an offence under POCSO “but” would lead to sexual harassment under Section 354A of IPC.

Rather than stating that the meaning of sexual assault in POSCO does not include the said offence, the offence must get included in the Act so that criminals are aware of the same. It is correct that Section 354A mentions the crime but stating “not amounting to crime” is itself leading to injustice against children of the nation. It is often said that some of the crimes in India cannot be resolved due to a lack of provisions or legislatures for the same.

The crucial point is that if the conviction is done under IPC, it would never lead to the growth and utility of other specific Acts like POCSO present in the country. These Acts, that have been specifically enacted for some cause, are losing relevance due to such orders that will in future act as precedents and lead to worsening of the situation. But, here the presence of the legislature is coming out as helpless.

Then why was POCSO even enacted? And if POCSO is present, why drag IPC?

In both the cases, the stark similarities that are involved are that it includes the same judge and the same problematic interpretation in cases where there is the involvement of minors. First she says skin-to-skin touch is not sexual assault and now she says, a stranger holding the hand of a minor is also not sexual perversity/intent to assault.

Further, diluting the mandate of POCSO law has set extremely dangerous precedents promoting gaping loopholes for miscreants to take advantage of such injustices in statutory interpretation. A lot of times when there are crimes that take place against women, a general argument that comes forward is we need more female representation in decision making bodies. And I do not deny it, but cases like these make me wonder if gender actually determines a person’s moral values?

Also read: Feminist News Wrap: Transgenders Rights, POCSO & Pakistani Activist Mahmud

There has been a tendency in our legal system to take a gander at the wrongdoing from the male perpetrator’s perspective and not the women’s or the minor’s point of view. This can highly affect the mental health of the victim or the survivor for years. Children are at the mercy of adults as their ‘protectors’, but if adults will not safeguard them, then it’s a very precarious situation.

In 1972, a young Adivasi girl in the state of Maharashtra, only 14 years of age (minor), was assaulted inside a police headquarters. The Supreme Court expressed that the non-appearance of dissent and obvious imprints on her body demonstrated assent. It was states, “Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her,” completely neglecting the fact that the cops were drunk at that time of their job. Instead of being accountable for the failure to enact what was in their power to make children and women of the country feel safer and look up to the judiciary for justice, such bizarre judgements still continue to be passed.  

Now that the Supreme Court on the request of the Attorney General has stayed the first judgment of skin-to-skin touch, it’s equally important that this judgment is also scrutinised. In any case, it helps us to remember the long way we need to venture out in our battles to carry equity to our kids, youngsters and women who are survivors of rape, sexual assault and harassment.

Also read: Disability-rights Activists Write to MWCD Objecting The Amendments To The POCSO…

We need to believe that regardless of whether she is indoors or outdoors, whether it is daytime or the night, whether she is a child or an old age woman, for whatever reason it may be, for whatever she is wearing she has the right to freedom and justice.

Chetna is a Law Student at University of Petroleum and Energy Studies, Dehradun, pursuing BBA LLB (Hons.). She is also the Founder at JustVocates Law Journal. You can find her on LinkedIn and Instagram.

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