POSCO Act … I don’t think that you all hadn’t heard about this as this was rightly in news very recently. PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POSCO) Act is aimed for protecting small female child from the wrath of sexual abuse, harassment and Pornography through a child friendly system of trial. But recently, in a controversial decision by the Bombay High Court where the crime of an accused of sexual assault against a minor girl was called just a ‘minor offence’. The decision was later stayed down by Supreme Court and rightly so.

Details of The POSCO Act

POSCO Act 2012 calls out for any child suffering sexual exploitation. Here, we need to look into details specifically because that’s where the case actually lies. Here, the child refers to ‘Any person below 18 years of age.

• The Section 7 particularly defines that for a Sexual Assault, the anus, vagina, breast or penis of the child must have been touched with a ‘sexual intent’. Further the bill also defines different grades and degrees of sexual abuse ranging from penetrative to non-penetrative and from a harassment to pornography.
• Also the sexual assault is called ‘Aggravated’ in case either the abused child is mentally ill, or the abuser is in a position of trust such as family member or doctor, or is someone from armed, security or police forces.
• The bill makes reporting of such sexual assault cases mandatory by the person who knows about the case. If the person fails to do so he is liable of a punishment ranging from fine to imprisonment.
• The bill calls for speedy trials of such cases in special courts within an year and evidence recorded within 30 days of taking cognizance. It also mentions that the proceedings should take place on record on camera, in the presence of child’s parents (or someone the child trusts).
• Similarly, the bill has different grades of punishments for different offences based on its gravity. In any case the punishment can’t be less than 3 years and in aggravated assaults it may range up to 10 years. It also has other punishments for storing child porn materials and being involved in child trafficking.

In Light of Recent Incident

Consider a situation, a 39 year old man tries to sexually assault a 12 year old child. According to the terms of this Act, we saw how this falls under a clear sexual harassment case but surprisingly, what happened on 19th of January at Bombay High Court left everyone awestruck, when justice PUSHPA GANEDIWALA acquitted that man just on the basis of claim that there was no ‘Skin to Skin’ contact. The argument given by Justice Pushpa was that, there is no proof if the top of child was removed or not and whether the accused inserted his hands inside her dress. So her point was without being sure of this, the ‘sexual intent’ can’t be defined for sure as a child can’t differentiate between a ‘Good Touch and a ‘Bad Touch’. That is not at all the case as studies show children can understand it even from 3-5 years of age and it’s the parents only who delay talking on it. She further said that the sexual intent can’t be called for sure as there was no skin to skin contact and at max it can only be a case of ‘outraging a women’s modesty’.

So, according to her if someone rapes a girl wearing a Condom, it shouldn’t be termed a rape because there is no ‘skin to skin’ contact. Here, interestingly, if we look it from her point of view also, where she termed it as a ‘Minor Offence’ and accused him only under Indian Penal Code Section 354. Even in that case the sentence term should have been one-five years for outraging a girl’s modesty (though it is only 3-5 years under sexual assault of POSCO Act) but he was given only a 1 year sentence. Frankly speaking, I am out of words for what happened in this case. The judge being a Girl further ‘outrages’ the decision on her part. Also, a fact to be noted that when she was being appointed the Judge in Bombay High Court, 2 former judges were strictly against her appointment and gave her dissatisfaction in written. Well … we know now that they were right.

Conclusion : Is there a Room for improving POSCO Act … ?????

There are two sides to a coin. Even in this outrageous decision has given us an opportunity to discuss about it or else most of the people didn’t even knew about this Act. More importantly, it has also presented us an opportunity to think over whether can we strengthen this Act further. See, if we compare between INDIAN PENAL CODE (IPC) and POSCO, the former gives a general definition of sexual assault while the latter one gives an extremely detailed and layered definition as we also saw above. The POSCO Act 2019, further strengthened the Act with inclusion of ‘Child Pornography’ and ‘Death Penalty’ for rape against minors.

Here, though I am strongly in favor of death penalty (that too brutally) in any rape case. But we also have to keep in mind that most child abuses happen with someone in relation or within the family of the assaulted minor. So, a death penalty not only makes chances of case actually being registered timid, but also increases danger on the victim’s life (demon rapists would like to die after killing the child as the maximum penalty is anyways … Death).

Also, this vague decision gives us one more point to ponder upon is that in UK under Sexual Offences Act, 2003, sexual assault involves touching with any body part, with or through anything else. Can we also inculcate anything like this in our POSCO Act, or can we merge it with IPC, since penalties differ in both. Or simply saying can we do ANYTHING to improve the POSCO Act. Doing so will not just save us from such outrageous decisions but will also allow some or many sexually abused minors to get justice. Actually, even if some discussions and improvements help even one more child … all the efforts are worth being put into place.

 

JAI HIND

ARUNESH SINHA

 

References :

1. Why Bombay HC’s ‘sexual assault under POCSO needs skin-to-skin contact’ observation is deeply problematic. Written By Mani Chander, Jan 25, 2021 https://timesofindia.indiatimes.com/india/why-the-bombay-high-courts-judgment-acquitting-man-under-pocso-is-completely-flawed/articleshow/80437238.cms
2. Judge, who passed controversial POCSO orders, was appointed despite reservation by 2 SC judges. Written By Bhadra Sinha, Jan 30, 2021 https://theprint.in/judiciary/judge-who-passed-controversial-pocso-orders-was-appointed-despite-reservation-by-2-sc-judges/595571/