In order to deal with the subject of child sexual abuse , the Government of
India instituted a special law in 2012 called, The Protection of Children from
Sexual Offences (POCSO) Act which is a exhaustive law to provide for the
protection of children from the offences of sexual assault, sexual harassment
and pornography, while safeguarding their interests at every stage of the
judicial process by subsuming child-friendly mechanisms for reporting,
investigation, recording of evidence, and speedy trial of offences through
Special Courts. However the Bombay high court Judgement of 24 January, 2021
seems to quash the provisions given in the act.
The judgment was trying to reverse the decision of a Sessions court of
conviction under POCSO and 3 years jail term and also reduced the sentence and
offence character. Moreover the statement made by the sitting Judge no skin to
skin touch, no sexual offence made the judgment controversial and the verdict
faced a lot of criticism and argument and the Hon'ble Supreme Court stayed the
verdict. This article explores the reasons as to why the Judgement was
problematic and against the safeguards and provisions given by POCSO and what
measures should have been taken to prevent such judicial indiscretion.
Each year, millions of children around the world fall prey to one or the other
form of sexual abuse or exploitation. Sexual violence and exploitation has
become a common occurance everywhere in every country and across all fregments
of society and even children become the victims of such crimes. A child might
have to go through sexual abuse or exploitation at home, at school or in their
community and even in any religious institution by people in positions of power
The inescapable use of digital technology and media can also put children at
risk in the form of child pornography. Children are the most vulnerable members
of our society due to their age, immaturity, low self esteem and lack of
physical strength. The criminal victimization of children is a pervasive
phenomenon in our society that impacts not only the children, but also their
families, friends, communities, and society at large. Children seldom know how
to express their feelings and emotions. Even if the child is a teenager, they
may not necessarily want to speak about a particular incident that they have
faced due to experience of guilt, shame and anxiety and talking might seem
The child may also want to shield his/her parents from their distressing
experiences. The crime may sometimes involve unauthorised action on behalf of
the child as well, which may prevent the child from talking about the situation.
In such situations it is important to ensure the child that they will not be the
ones who will be punished for things they tell and proper laws and safeguards
should be put in place.
And to respond to such rampant child sexual abuse different measures are taken
at national and international level. One such measure taken by our country is
Protection of Children from Sexual Offences Act, 2012 (POCSO Act to deal with
cases of child sexual abuse. However, the question here is: Are children
downright protected under the ambit of such acts or there exists some loopholes
in the law which provides a benefit of the doubt to an accused and lets the
accused go scott free?
The Bombay High court's Judgement:
On January 24 2021 a sitting judge of the Nagpur bench of the Bombay High Court
Justice Pushpa Ganediwala's judgement sparked a nationwide controversy . The
Judge acquitted a man under the Protection of Children from Sexual Offences Act,
2012 (POCSO Act) who had groped a 12 year old girl's breast and attempted to
remove her clothes.
The bench within the case alleged that holding a minor child's hands and
therefore the act of a person unzipping his pants ahead of her won't come under
the confines of 'sexual assault' as defined by the Protection of Children from
Sexual Offences Act, 2012.
The court further ruled that touching a child's cheek without any sexual intent
does not amount to an offence. This ruling of the Bombay supreme court triggered
widespread criticism over the interpretation of and therefore the loopholes
within the Protection of Children from Sexual Offences Act, 2012. Citizens took
over twitter the following week in order to protest and show their
dissatisfaction to the judgement.
The POCSO Act: an abridgement
In order to credibly address the abhorrent crimes of sexual abuse and sexual
exploitation of children through more comprehensive and stringent legal
provisions, the Ministry of Women and Child Development introduced the
Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has been
enacted to shelter children from offences of sexual assault, sexual harassment
and pornography and provide for establishment of Special Courts for trial of
such offences and related matters and incidents.
The Act was amended in 2019, to make provisions for enhancement of punishments
for various offences so as to deter the perpetrators and ensure safety, security
and dignified childhood for a child. After this amendment the Act garnered
interest when an amendment was made to increase minimum punishment for
aggravated as well as penetrative sexual assault on children below 16 years
from 10 to 20 years, extendable to life imprisonment or death.
POCSO was explicitly formulated to deal with offences of child sexual abuse and
child pornography. The Act has 46 provisions that increases the scope of
reporting offences against children, which were not earlier covered under the
Indian Penal Code (IPC). This also expanded the criminal penalty for aggravated
penetrative sexual assault to include punishment for abuse by a person in
position of trust or authority.
It also defined the procedure for reporting cases, including a provision for
punishment for failure to report a case or false complaint. It provided
procedures for recording of the statement of a child by the police and court,
specifically requiring that it should be done in a child-friendly manner, and by
establishing special courts. The POCSO Act defines offences of sexual assault,
sexual harassment and child pornography explicitely. It also sets out a
child-friendly procedure regarding the recording of evidence, investigation and
trial of offences, establishment of special courts and speedy trial of cases.
The aim of the act is to provide protection to the child at every stage of the
judicial process. Another significance of the act is that POCSO is a gender
neutral law for protection of children against sexual offences. The act
recognises that boys can be victims of sexual violence as well. It defines a
child as someone under the age of 18. The Indian Penal Code does not recognise
that sexual assault can be committed on boys.
Under provisions of the POCSO Act, a child is entitled to : Getting their
statement recorded at their residence or a place of their choice, and preferably
by a woman police official or an official not below the sub-inspector rank, in
civilian clothes. The police official should ensure that during the
investigation, the child shouldn't come in contact with the accused. The child
cannot be detained at the police station at night, and his/her identity should
be protected from the public and media unless directed otherwise by a Special
If the survivor is a girl, the medical examination should be done by a
woman doctor, and the examination can only be done in the presence of a parent,
or a person the child trusts. If neither of the two are there, then the
examination should be done in the presence of a woman nominated by the head of
the medical institution.
The special courts stipulated under the POCSO Act are
also to be child friendly. There are provisions such as making a child-friendly
atmosphere in the court premises by allowing a family member, a guardian, a
friend or a relative, in whom the child has trust or confidence, to be present;
allowing frequent breaks for the child during the trial; and ensuring that the
child does not have to face the accused during evidence collection as well as
Based on the Special court's discretion, proceedings can also
happen in-camera, i.e., no one except those related to the case can be present
in court, and in presence of the child's parents or another adult he/she trusts.
Despite such stringent measures the Judgement of the Bombay high court managed
to exploit the loopholes in the law and a 12 year old child was denied complete
The detail description of proceedings in this case:
The ruling in the case was pronounced by a single bench of Justice Pushpa
Ganediwala in a criminal appeal against the conviction and sentence awarded to a
50-year-old man for molesting a minor girl. Justice Ganediwala had modified a
sessions court order that held a man guilty of a minor's sexual assault. She had
ruled that groping a child without "skin-to-skin contact with sexual intent"
does not amount to the offence under the Prevention of Children from Sexual
Offences (POCSO) Act.
According to the Act when sexual assault is committed against a minor younger
than 12, it becomes aggravated sexual assault
under Section 9 and is
punishable with a stronger sentence. Based on the complaint, the sessions court
had held on January 15, 2021, that this was a case of aggravated sexual
and convicted the accused under sections 354A (sexual harassment) and
448 (punishment for house trespass) of the Indian Penal Code along with sections
8 (punishment for sexual assault), 10 (punishment for aggravated sexual assault)
and 12 (punishment for sexual harassment) of the POCSO Act. Consequently, it had
sentenced him to five years rigorous imprisonment and fine of Rs 25,000 with a
default simple imprisonment for six months.
However, while considering the appeal, the high court resorted to the same legal
logic that had been cited in the earlier POCSO judgment and which examines a
loophole in Section 7 of the POCSO Act regarding 'physical contact'. The court
thus set aside convictions under sections 8, 10 and 12 of the POCSO Act. Two
portions of the judgement quoted by Bar and Bench point to sections under POCSO
Act and IPC that the court found the offences should fall under . The high court
also held that the time of five months' imprisonment which the accused served
was enough in this case and reduced his sentence to time already served.
Reasons behind such criticisms:
Initially the Nagpur Bench of Bombay High court created a great controversy on
January 24, as she acquitted a man under the POCSO act and the POCSO act enacted
with the main objective of protection of children whether male/female from
various kinds of sexual abuses. Here in this case the girl, who was sexually
assaulted, was 12 years old at that time but still the case was not charged
under POCSO act and according to judge, the case basically fall under section
354 of IPC, which carries punishment of 1 to 5 year and the judge gave the
judgment based on this IPC section, which is really unacceptable, illogical and
If we talk about Shimla Rape case
, where a 28 years old man
accused of rape and murder of a 16 year old schoolgirl, still the case was
charged under the POCSO Act, while the case with a sexual assault against a 12
year old girl was not charged under the POCSO Act. Any sexual harassment If an
assault is committed against a girl under the age of 16, the case should be
charged under POCSO Act, which is completely avoided in this case and for this
reason this judgment needs some evaluation.
Also, the main reason for the enactment of the POCSO Act was to prevent
incidents such as child sexual abuse and to provide proper protection to the
children as well as to punish the perpetrators. Basically, under the POCSO Act
the offender is usually sentenced to a minimum 10 to 20 years in prison for
committing penetrative crime and in some cases it is extended to life
imprisonment to execution of the perpetrator.
So, this case was going to the
session court before the Bombay high court and the session court also gave the
judgment based on the POCSO Act, but later the High court had proceeded to
examine section 7 of POCSOact (Vishwanath, 2021).
According to Bombay High court the ingredients for consulting the offence of
sexual assault are that:
The act must have been committed with sexual intent and
it must involve touching the vagina, penis, anus or breast of the child or any
other act which is similar to the acts specifically mentioned in the provision
and this is the main reason that High court include section 354 of IPC instead
of involving the POCSO Act. So, is it the ultimate judgment that we want as a
form of justice?
Our Constitution of India comprises basic fundamental rights, in which article
14 describes, the equality before the law and equal protection of law within the
territory of India and Article 21 states that, no person shall be deprived
of his life or personal liberty except according to procedure established by the
But as a result of this controversial judgment from Bombay High court
these two rights have already been violated and the biggest question is why
section 354 was brought in the case where the POCSO Act was necessary to come
into force? The 12 years old girl has been deprived of her right to get justice
and also for this reason the Bombay High court's judgment needs to be criticized
In 2017 at Nashik, Maharashtra a six years old girl was sexually
abused by her father and was killed by her grandmother who was trying to cover
up the crime and here also the case was charged under section 376 of IPC and
specifically on POCSO Act
. So, here also we can see that the girl got what she
needed or girl's family got what they needed but in this matter why the girl was
deprived of her right and why she was not given the proper justice? This is what
makes us scared now that wheather the judgment was a right decision or it is
helping to increase such incidence of child abuse in future (Ramakrishnan,
Top organizations and famous personalities, to whom the judgment was
unacceptable and outrageous:
The organizations who objected most against this judgment were the National
Women Commission and even they appealed to the Supreme Court, and as a result
the Supreme Court stayed Bombay High court's judgment.
Also the executive director of child rights NGO Bachpan Bachao Andolan, Mr.
Dhananjay Tingal said that:
Their legal team was looking into the matter and all the data related to this is
We shall be appealing to the Supreme Court on the basis of their inputs.
Kavita Krishnan, the activist and the secretary of All India Progressive Women's
Association, called the judgment an 'outrageous judgment' and she added:
The POCSO Law defines sexual assault very clearly and it has a provision for
sexual touch and the judgment didn't make any sense. This is absolute rubbish
and it fails the test of common sense also.
According to Yogita Bhayana, an activist who heads the people against Rape in
India also mentioned that - the judment was so disappointing and it will
motivate the perpetrators in future.
A Women Rights Activist, Shamina Shafiq stated that it was very painful to hear
that a lady judge gave this judgement.In addition to these, many other social
media platforms and many news channels and news articles have opposed this
judgment (India News, 2021).
Views and suggestions on the judgment:
There is always a motive or specific intent behind any work and similarly there
is always a motive and intent behind committing crime and in this case the main
motive of the perpetrator was to rape of the teenager. He had pressed her breast
and attempted to remove her salwar, even luring the girl to go with him to his
house on the pretext of giving her guava. So, yes there was a motive and also
our country has POCSO Act which states that, if any girl (under the age of 18)
is sexually harassed, the case should be charged under the POCSO Act, but
unfortunately this aspect has not been considered in this case.
For example There was an incident in Bangalore, where a 5 years old girl was
sexually abused by an unidentified person in the suburbs of Bangalore. This case
of child abuse was also charged at under section 376 of IPC and POCSO Act and
this is just one case, there are many more cases like this, in which only POCSO
Act has been charged but still I don't understand that for what logic and for
what reason the case of sexual assault against a 12 years old girl was not
charged under the POCSO Act(Mistry, 2021)?
According to Cesare Beccaria's Classical School of Criminology, The punishment
should be proportional to the crime.
Basically this is the case to attempt rape
against a minor girl which should be charged under POCSO Act and the culprit
should have been sentenced for three years, but unfortunately this was not done,
rather than this, the culprit has been charged under section 354 of IPC which
carries only one year of detention.
So, those perpetrators convicted of raping
of minors should be given the harsh punishment as soon as possible, just as a
death sentence is given to a person convicted of murder. In this case if the
offender had been sentenced to three years of rigorous imprisonment, then the
punishment should have been proportional to the crime because sometimes severe
punishments do prevent crimes and that's why they should be used, so yes
punishment should be proportional to the harm that a crime has caused. According
to Cesare Beccaria, the aim of punishment is basically to prevent offenders from
doing it again and to prevent other people from committing crime as well.
For example According to the POCSO Act, for the penetrative assault on
children below 16 years, punishment was increased from 10 20 years and may be
extendable to life imprisonment or death, while section 8 of minor offences, the
minimum punishment is up to three years (Paranjape, 1973)
This case also comes under minor offences and if the offender should be given
three years of punishment then the future offenders will always be sure that
they would be punished and their punishment would come as quickly as possible
after the offence and this would be a large chance of preventing crimes.
If we look at the incidence of child abuse in India, we can clearly understand
that the incidence of child abuse is increasing day by day in India and the most
important thing is - Maharashtra possesses higher rate of child abuse incidents.
So, here I have mentioned the crime statistics of child abuse which was given by
The Minister of Women and Child Development (Ministery of Women & Child
Developement, 2017, 272).
||Jammu & Kashmir
||A & N Islands
||D & N Haveli
||Daman & Diu
So, looking at this crime statistics, we can get an idea that the number of
child abuses is increasing at that point this case can be a great example, if
the culprit was properly punished and the case will be a threat to those
perpetrators who commits rape of minors.
According to Cesare Beccaria's Classical school of Criminology, Punishment should be certain and swift
He believed that if the offenders were sure that they would be punished and
their punishment would come as quickly as possible after the offence, then this
would be the largest chance of preventing crimes.
Even in this case if the convict had been sentenced to three years rigorous
punishment, the future offenders would have been thought at least once that what
would be the consequences for committing rape against a minor girl and it will
also prevent the future incidents like child abuse (Mistry, 2021).
So, for now the Supreme Court has stayed the Bombay High court's judgment. The
only thing I can ask that Section 354 of IPC is about sexual offence against
women, then why the case of sexual offence against 12 years old girl was charged
under this IPC section rather than using the POCSO Act and this raises a
question that whether we really want a judgment in which the sexual offence
with minor is being compared with the sexual against with women or not?
And this is also responsible for raising a lot of crimes against children
because one thing is true that about 70% or above sexual offence cases in our
country are unreported in every year due to political pressure, due to police
corruption or due to rapist's pressure and for these reasons I think culprits
should be given harshest punishment as soon as possible.
But hopefully the Supreme Court has stayed this judgment and recently K. K.
Venugopal the Attorney General of India slammed and criticized the decision of
Bombay High Court and explained that Someone can wear a surgical glove and
exploit a child and get away scot free
This is an outrageous order.
Even he approached the Apex Court against the judgment of Bombay High Court. He
specifically mentioned that the previous order would create a 'very dangerous
precedent' and ill intention to the perpetrators and it would affect our society
badly and it will provide a larger area for the offenders.
So, as per the news the next hearing about this case will be organized on 14th
September and there is a hope that may be Supreme Court will give the proper
judgment against the perpetrator and will give the proper justice to the victim
and specially this case will stand as an example of POCSO Act along with that,
the 12 years old girl will not be deprived of her right and justice anymore,
because (The HIndu, 2021) Injustice anywhere is a threat to justice
Martin Luther King.
- India News. (2021, January 25). Obnoxious, unacceptable,
outrageous:activists on Bombay HC judgment. Hindustan Times
- The Protection Of Children From Sexual Offences (Amendment) Act, 2019,
- The Protection Of Children From Sexual Offences (Amendment) Act, 2019
- Mahapatra, D. (2021, January 30). Controversial Pocso rulings cost
Bombay high court judges her confirmation. The Times of India.
- Ministry of Women & Child Development. (2017). Annual Reports. 272.
- Mistry, G. (2021, January 28). The Bombay High Court judgment on sexual
assault: A serious matter. Bar and Bench. barandbench.com
- Paranjape, P. N. V. (1973). Criminology & Penology (including
Victimology) (Eighteenth Edition ed.). Central Law Publications.
- Rajagopal, K. (2021, January 27). Supreme Court stays Bombay HC order on
'skin to skin' contact for sexual assault under POCSO aCT. The Hindu.
- Ramakrishnan, S. (2021, January 31). Bombay HC's interpretation of POCSO
is problematic at several levels. The Indian Express.
- Vishwanath, A. (2021, January 30). Explained: In Bombay HC verdict on
sexual assault, issue of mandatory minimum sentencing. The Indian Express.
- Ananya Kanjilal - M.A. Criminology with specialization of
Forensic Psychology, National Forensic Science University, Gandhinagar,
- Saptaparni Majumdar - M.A. Criminology with specialization of
Forensic Psychology, National Forensic Science University, Gandhinagar,