Understanding POCSO: A Story
Pallavi Diwakar and Stuti Bhargava

Free the chid’s potential and you will transform him into the world.

                                                                                  -Maria Montessori

“We are a group of five cousins, Jaya, (28 years old) (works in a Multinational Company), Rekha (25)( works in a bank), Sushma (18) and Hema (12) studying in 12th and 7th Standard respectively) and I, Rajni (21)(law student). Despite the prominent age gap amongst us we love to spend together, whenever possible. After several years, we got the opportunity to meet each other at our Nana’s place this month.

The occasion called for an opportunity to share everything that had been happening in our lives. Hema, who is the chirpiest of us five was behaving out of character. She seemed hesitant and subdued. We could sense that something was wrong with her.  After a lot of persuasion on our part, she finally opened up about the cause of her worries and fear. She told us about the incidents that have been happening with her while she commutes to her school. She told us about this elderly man who is a regular passenger in the bus that she usually boards.  With tears in her eyes, she told us how this man doesn’t let an opportunity to touch her inappropriately, pass. He makes it a point to brush his hand across her chest and hips when she gets boards or alights the bus.

Being a law student, the only thing that came to mind was that such behaviour is a punishable under the law. Not only is the act punishable, the legislature has instituted in place a legislation (Protection of Children from Sexual Offences Act, 2012)(“POCSO”) that seeks to safeguard children against sexual abuse. However, today what I read in one of the judgements has shaken the foundation of my understanding. Should we file a complaint against such an act? If the act does not allow for penalizing such actions, will it not render the objective of the Act futile?”

The case that I read is about a man who has been accused of inappropriately touching and pressing the breast of a 12-year-old girl and an attempt to remove her salwar.

The court in deciding as whether the actions of this man would amount to Sexual Assault or not referred to Section 7 and 8 of the POCOS Act. From what I understand, Sexual Assault under the POCSO Act means any action (done with a sexual intent) that involves touching the genitals or breasts of a child. According to me, the actions of the man should have been punished under the POCSO Act. The court, as I read on, said that since there had not been any direct contact between the accused man and the girl, his actions cannot be called Sexual Assault and he cannot be penalised under the Act. The Court in its verdict also held that since the punishment provided under the POCSO Act is of a strict nature, the allegations made and proofs extended must also be of a serious and stringent nature. Finally, it was held that the action of the man could only amount to outraging the modesty of a woman, an act for which the Indian Penal Code provides penalty.  

I was confused and quite upset that my little sister who had been at the receiving end of such abuse would not be able to get justice if such is the understanding of the Court. I texted and called my friends but they could not help me either. A very close friend of mine advised me to call our Criminal Law Teacher. I thanked her for her quick thinking and immediately called him up. He was understanding and really empathetic about the incident. He also assured me that he would do whatever he could, to help secure justice for my kid sister. I told him about the case that I had read and he said, “There is a fundamental flaw in the this understanding, Rajni. While demanding a separate legislation for children, practitioners and supporters of child rights around the world, firmly advocated the child to be at the Centre stage. POCSO is close to being a decade old but it has clearly not achieved what it had set out to. The intention behind formulating a legal mechanism for protection of children against sexual abuse was to ensure their best interests.”

He then went on to discuss where the Court had faltered. He told me that, while a case is brought to the notice of the court under the POCSO Act, ideally, the nature of abuse inflicted and the potential impact that such abuse can have on the psyche and physical being of the individual. The fact that the court disregards the action of a grown man merely on the count that he failed to remove her top while touching her inappropriately, seems absurd and clearly against the objective laid down by the framers of the Act.”

I could feel his passion and his sincerity towards the cause and the condition of law, in the way he spoke. “The POCSO was formulated as a specialised Act to institute stricter penalties since the abuse against a child is considered more serious and heinous than what the IPC embodies. You have to understand, beta! The idea here is not to disregard the weight of actions and penalties mentioned in the Penal Code but it is to give primacy to a specialised law that aims to tackle stringently any instance of sexual abuse against a child. Of what Use is POCSO to us, if such cases are not punished under it? The fact that there was no direct contact between the accused and the skin of the victim does not in any manner affect what she must have witnessed and experienced. The incident, especially for a girl child of 12 years has to be traumatic. As far as the requirement of proof is concerned, there’s no evidence to prove that the girl was mentally incompetent. While it is accepted that she might not have the requisite mental intelligence, the fact that she narrated what had happened, to her mother should be proof enough to hold the accused liable of assault. I believe this is the reason why the Supreme Court stayed the order of the High Court. The Court taking cognisance of the matter reiterated what you and I thought of the matter. An order as the one the High Court passed has the potential of setting a dangerous precedent.

My advice to you would be that you file a complaint under Section 7 of the POCSO, beta! I know a lawyer who will guide you through the process. Tell Hema to not worry! I’ll help you as much as I can.”

Understanding POCSO: A Story
Pallavi Diwakar and Stuti Bhargava

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