The recent incident of Bombay High Court Additional Judge Pushpa Ganediwala and her latest POCSO verdicts has called into question the very nature of these laws. In this judge’s case, the issues have been the “improper interpretation” of the various sections of the Protection of Children from Sexual Offences Act. She had misconstrued physical contact as “skin-to-skin”, thus acquitting a man, who had groped the breasts of a minor over her salwar, from sexual assault charges.
Amidst the ongoing debate, Madras HC, on January 27, while delivering the verdict on a plea to quash POCSO proceedings against an adolescent boy, stated, “Punishing an adolescent boy, who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.” This is an important point, considering how there have been instances of misuse of the Act. The Madras HC goes on to explain in detail the complexities of the matter, especially when the accused in a POCSO case is an adolescent. In such instances, the POCSO Act can feel a little excessive, and judges are often stumped, as the cases might not be as straightforward as it might seem from the outside.
Before going further, it needs to be made clear that this article does not try to explain away Justice Pushpa’s misguided interpretation of the POCSO sections. Justice Pushpa’s interpretations are indifferent to the standards of the Act as well as questionable on many levels. Instead, this article will focus on the need to understand the POCSO Act in the context of juvenile and adolescent offenders, and the problems associated with it.
The Goa Children’s Act of 2003 was the only piece of legislation that exclusively catered to protecting children before POCSO. At the same time, the nation resorted to three different sections (not limited to) of the Indian Penal Code to address the gap: IPC 375 (rape), IPC 354 (outraging the modesty of a woman), and IPC 377 (unnatural offences). All of these had their limitations when it came to protecting children.
IPC 375 clearly notes, “A man is said to commit rape…” and notes that rape can only be committed on a woman. This means that only minor girls are covered under this section. Interestingly, “sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape”. This is possible since child marriage in India is not void but only voidable.
IPC 354 lacks a proper definition of modesty, and it mainly depends on the various judgements pronounced throughout the years. It is also limited to women, and it carries a weak penalty of maximum one year. Moreover, it is a compoundable offence — a settlement mechanism through which cases can be quashed. The matters concerning section 377 are equally complicated, and not inclusive enough in the matter of children.
Addressing the limitations, the Parliament brought out POCSO in 2012. Apart from including the crimes and its punishments, the Act also envisages the organisational setups that will cater to children, protecting their welfare, and the protocol to be followed for officers in matters of children. The Act protects children (male and female) from sexual assault, sexual violence, penetrative sexual assault, aggravated sexual assault, and child pornography.
This means that POCSO cannot be abandoned at the first criticism, and since it concerns children, judges have to be careful in interpreting its sections. However, it is equally important we understand that POCSO is subjected to misuse, especially due to its lack of flexibility, and that there must be some amendments to the issue especially concerning juvenile and adolescent accused.
Following the Nirbhaya rape incident, amendments have been proposed to treat Children in Conflict with Law (CCL) — juvenile offender — in the age group of 16-18 to be treated as adults when they have committed heinous offences (attracting minimum seven years of punishment). This is still a point of contention, as many judges have said, “It is not that simple.” Treating a juvenile in a POCSO case as an adult is even more complicated since the CCL is treated through the Juvenile Justice (Care and Protection) Act 2015 (JJ Act) and not POCSO. If treated as an adult, then the situation will be turned on its head, and the CCL might be awarded years of rigorous imprisonment.
In November 2020, Meghalaya HC considered the matter of a 17-year-old who had been brought before a POCSO court. The judge then referred him to the Juvenile Justice Board, but the latter’s Principal Magistrate denied bail citing that the statement of the survivor was yet to be taken. However, the boy’s family pointed out that such denial violates the various sections of the JJ Act.
In a detailed order, the Meghalaya HC noted that the petitioner had pointed out that the Principal Magistrate hadn’t considered the fact that the “alleged survivor has admitted to having a relationship with the CCL herein and as such, the act attracting the offence alleged was entered into mutually…” The order added, “This Court deems it fit and proper to call upon all Juvenile Justice Boards in the state to strictly adhere to statutory provision of Section 12 of the JJ Act while considering the issue of grant or refusal of bail for a CCL and to approach any case where a juvenile is involved with care and sensitivity.” The order was made considering many factors — but mainly the fact that the accused is a minor. It is important, especially when a recent Supreme Court statement notifies the same in another instance involving a case in the Bombay High Court.
After the Bombay HC denied bail to 34-year-old Amit Raoso Patil in a case filed by a minor with sections from IPC as well as POCSO, the defendant filed a Special Leave Petition in the Supreme Court. In the plea, Amit claimed that the victim had consented to the fact, to which the SC bench — consisting of Justices L Nageswara Rao, Hemant Gupta, and Ajay Rastogi — replied that the victim was a minor and so her consent was immaterial. Amit said that he didn’t know that she was a minor at the time of the crime, “but she was 17 years and 8 months then”. “That may be relevant under the Juvenile Justice Act in case of a ‘juvenile in conflict with law’, but not in IPC. In the Indian Penal Code, there is no such thing. You cannot raise this ‘consent’ argument here,” said Justice Gupta.
The Supreme Court is noting that when it comes to POCSO cases no exception can be made for accused above the age of 18, and for those below that the JJ Act is applicable. This is also important in the background of how POCSO does not factor in the age of the accused at least for the sake of understanding the nuances. Moreover, the courts are also pointing out that the issues concerning juveniles require additional input into the POCSO Act itself. If juvenile offenders are covered under the JJ Act, what section deals with adolescents between the ages of 18 and 24?
When considering the matter of an adolescent, look no further than the recent Madras HC verdict. Referring to scientific documents and other research materials, Justice N Anand Venkatesh points out, “The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of this nature where adolescents or teenagers involved in romantic relationships are concerned.” The verdict also adds, “This Court is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was in fact present.”
The point of the order is to try and create an impossible line in the sand, nonetheless a line. The line’s purpose isn’t to create a clear distinction between cases, much like how Justice Pushpa did. Justice Anand is trying to illustrate the fact that cases concerning adolescents are not as straightforward as one might consider, albeit he did it from a relatively safer point where all he had to decide was whether the case could be quashed or not.
Referring to an SC judgement, Madras HC noted that the matter concerning the victim and the accused was a personal affair and quashing the proceedings will not affect any overriding public interest in this case and it will pave way for both to settle down in their life. The last part of the statement echoed the victim and mother’s claims that the legal proceedings are delaying her daughter’s marriage. In a part of the order, Justice Anand refers to a single judge verdict (Sabari v. Inspector of Police), which says, “When this case was taken up for hearing, this Court became concerned about the growing incidence of offences under the POCSO Act on one side and also the Rigorous Imprisonment envisaged in the Act. Sometimes it happens that such offences are slapped against teenagers, who fall victim of the application of the POCSO Act at a young age without understanding the implication of the severity of the enactment.”
The latter statement is indicative of the complexities assigned to such cases. This statement is not however indicating that all cases must be seen as a part of the rise in incidence, but from the perspective that judges have to consider more than what POCSO Act allows them. None of this is to say that Justice Pushpa had to face a similar situation.
While in both situations, we are introduced to question of complexities, and the possibility it creates to misinterpret the legislation, other judges have made proactive recommendations to amend the POCSO Act to remove that complexity and introduce a bit of flexibility. In 2019, an important point was made by Justice V Parthiban of the Madras HC, who observed that relationship between a girl under 18 years of age and a teenage boy or little over the teenage years cannot be construed as ‘alien’ or ‘unnatural’. The judge went on to suggest exclusion of consensual sex after 16 years of age from the purview of POCSO Act.
Suggesting an amendment to the Act, he said, “Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under the more liberal provision, which can be introduced in the Act itself...” He added that the Act could be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. “So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence,” he observed.
Most of this consideration stems from the fact that adolescents who are accused of sections under POCSO face rigorous imprisonment, and there have been several incidents of false accusations. Justice Parthiban and others would go on to suggest amendments to the Act to consider the complexity of the situation, especially in the case of adolescents.
The fundamental problem with POCSO is its lack of evolution, and that is not to say that it be made liberal. In fact, most recent additions to the Act has been to increase minimum punishment, clearly define the section on child pornography — it now makes failure to report such content a punishable offence with increased jail time — and bringing into ambit more situations concerning sexual violence. However, more issues need to be addressed within the Act, including the situation as mentioned by the Madras HC.
While we can see that many judges, not just mentioned here, have suggested changes, and a few have recommended amendments to POCSO, until these changes are instituted, judges will have to swim in murky legal waters in search of a strong footing. Meanwhile, others will use the grey areas to create their interpretations of the sections, much like what Justice Pushpa did. Interestingly, her supporters are using the argument that she is limited by the Act, as well as the fact that there have been rising incidents of false claims using POCSO sections. This makes it all the more important to amend the sections not because her supporters demanded it, but because we cannot allow judges to acquit accused of POCSO sections because they groped a girl over her salwar, or only had his zip open and nothing else. Such misinterpretations can create precedence where judges will start undermining the Act to “protect justice”.
This article deals with the complicated nuances surrounding the Act and its implementation, addressing how most cases are seldom straightforward. Further parts will look into more orders and deep dive into orders mentioned here to understand the difficulties in pronouncing verdicts in complicated cases, as well as dealing with institutional failures such as when police and prosecution are unable to build a case despite POCSO reversing the burden of proof. It will also look into Child Welfare Committees, JJ Boards, and the rehabilitation process.