The recent Bombay High Court judgement has raised controversy for its interpretation of certain Section of the POCSO Act. The article deals with this issue.

Object of the POCSO Act

• The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 especially to protect children (aged less than 18) from sexual assault.
• The Statement of Objects and Reasons of the Act admitted that a number of sexual offences against children were neither specifically provided for in extant laws nor adequately penalised.
• The UN Convention on the Rights of the Child, ratified by India in 1992, also requires sexual exploitation and sexual abuse to be addressed as heinous crimes.

Issues with Bombay High Court’s Judgement

• The Bench acquitted a man under the POCSO Act found guilty of assault on the grounds that he groped his victim over her clothes and there was no skin-to-skin contact between them.
• As this judgment was likely to set a dangerous precedent, the apex court stayed the acquittal.
• Section 7 of the POCSO Act, along with other things, says that whoever with sexual intent touches the breast of the child is said to commit sexual assault.
• Whereas Section 8 of the Act provides minimum imprisonment of three years for sexual assault.
• Section 354 of the Indian Penal Code (IPC) lays down a minimum of one year imprisonment for outraging the modesty of a woman.

Difference between IPC and POCSO

• The difference between POCSO and IPC, as far as the offence of sexual assault is concerned, is two-fold.
• One, the definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic.
• Whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts.
• ‘Sexual assault’ in POCSO specifically 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.
• Two, whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
• Higher punishment is provided under POCSO not because more serious allegations of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.

Conclusion

In the absence of any specific provision in the POCSO Act which requires skin-to-skin touch as a mandatory element of an offence, any interpretation which dilutes protection to children must be declared ultra vires.

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