POCSO - Protection of Children from Sexual Offences Act

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  POCSO - Protection of Children from Sexual Offences Act

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• Social background: Countless children in India (and across the world) become victimss of varying degrees of sexual assault and molestation, with some of them being too young to even understand it. The scars that are etched on their pschye stay forever. Society's general silence and non-chalance makes it more dangerous and painful.
• The POCSO act: This act was enacted in 2012 especially to protect children aged less than 18 from sexual assault. It admitted that a number of sexual offences against children were neither specifically provided for in existing laws nor adequately penalised. So an offence against children needs to be explicitly defined and countered through proportionate penalties so that it acts as an effective deterrence.
• UN: The UN Convention on the Rights of the Child which was ratified by India in 1992 requires sexual exploitation and sexual abuse to be addressed as heinous crimes.
• How does POCSO and IPC deal with sexual assault: 

1. One, In IPC the definition of assault or criminal force to woman with intent to outrage her modesty is very generic. In POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts or doing any other act which involves physical contact without penetration. But it excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.  
2. Two, IPC provides punishment for the offence irrespective of any age of the victim but POCSO is specific as it is for the protection of children. The Section 7 of the POCSO Act says that whoever with sexual intent touches the breast of the child is said to commit sexual assault & the Section 8 of Act provides minimum imprisonment of 3 years. (Whereas Section 354 of the IPC lays down a minimum of one year imprisonment for outraging the modesty of a woman)

• What is the controversial Jan 2021 case about: The Bench acquitted a man found guilty of assault on the grounds that he touched the victim’s limbs and breasts only over her clothes and there was no skin-to-skin contact between them. This judgment is likely to set a dangerous precedent & finally the apex court stayed the acquittal. In Vishaka v. State of Rajasthan (1997), the Supreme Court held that the offence relating to modesty of woman cannot be treated insignificant. In Pappu v. State of Chhattisgarh (2015), though the High Court, acquitted the accused under Section 354 of the IPC as the offence was found lacking in use of criminal force or assault. But it convicted him for sexual harassment under Section 354A which requires physical contact and advances as a necessary element.
• Summary: The essence of a woman’s modesty is her sex and the culpable intention of the accused is the crux of the matter in the above cases of sexual assault. In the UK, Sexual Offences Act 2003 says that touching (with sexual intent) includes touching with any part of the body, with anything else or through anything. But the POCSO Act is silent on these matters & it requires skin-to-skin touch as a mandatory element of an offence for the conviction. This dilutes the protection given to children & must be declared ultra vires to protect the bodily integrity.

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