By Dr Swati Jindal Garg
Justice Anup Jairam Bhambhani, in a recent judgment on a revision plea filed by a woman accused under the Protection of Children from Sexual Offences (POCSO) Act, 2012, held that the accused must face trial under the Act. The issue arose on the usage of the word “he” in the POCSO Act, 2012. Justice Bhambani’s ruling further stated: “The word ‘he’ appearing in Section 3 of the POCSO Act cannot be given a restrictive meaning, to say that it refers only to a ‘male’; but must be given its intended meaning, namely that it includes within its ambit any offender ‘irrespective of their gender’.”
The accused woman in the case under discussion was charged with aggravated sexual assault which includes committing “penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child.” Under Section 6 of the POCSO Act, this offence carries a minimum sentence of 20 years to life imprisonment or death penalty. The offence committed under this Section shall be punishable irrespective of the fact as to whether the accused person had any “intent” to commit the alleged sexual assault or not.
The woman accused had been sentenced to 10 years’ imprisonment under Section 6 of the POCSO Act for aggravated penetrative sexual assault by a Delhi court in the beginning of this year after which she had then moved the High Court challenging the framing of charge under Section 6 of the POCSO Act by the trial court and seeking dropping of charges.
The POCSO Act, 2012, is a comprehensive law to provide for the protection of children from the offenses of sexual assault, sexual harassment, and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offenses through designated special courts. POCSO not only spells out the punishments for offences, but also sets out a system for support of victims and improved methods for catching offenders. Under POCSO, “child” means any person below the age of 18 years. The child could be male or female. POCSO is thus a gender-neutral law—the child victim of sexual offence could also be a boy or a girl.
There are three broad categories of sexual offences punishable under POCSO. They are:
(i) Sexual assault,
(ii) Sexual harassment, and
(iii) Using a child for pornography.
Sexual assault itself has various degrees of seriousness. Where the offence of sexual assault or penetrative sexual assault is committed by certain persons or in certain circumstances, the offence is said to become aggravated i.e. it becomes more serious and the punishment is also accordingly increased.
Section 3 of the POCSO Act defines penetrative assault as follows: A person is said to commit “penetrative sexual assault” if:
- He penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
- He inserts, to any extent, any object or apart of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
- He manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
- He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child do so to any other person.
In the light of the usage of the word “he” in this Section, the main argument tendered by the accused woman had been that the offence of aggravated penetrative sexual assault under the POCSO Act “can never be made out against a woman” since the Act repeatedly uses the pronoun “he”. Her counsel further argued that the interpretation of Indian Penal Code provisions on rape, which only criminalises actions of a man, is similar to the definition of penetrative sexual assault in Section 3 of the POCSO Act. Women are usually booked for “aiding and abetting” the charge of sexual assault, but it is not common for them to be booked as a perpetrator.
To this argument, the High Court stated: “It is extremely important to note that the said provisions include within the ambit of penetrative sexual assault, the insertion of any object or body-part; or the manipulation of any body part of a child to cause penetration; or the application of the mouth. It would therefore be completely illogical to say that the offence contemplated in those provisions refers only to penetration by a penis.”
The prosecution rightly argued that the POCSO Act is a gender-neutral act and that the word “person” is also used in the definition of “penetrative sexual assault” as given in the Section 3 of the Act and thus it cannot be construed in a narrow sense “and must include women offenders as well”.
After hearing both the sides, the High Court disagreed with the argument of the accused interpreting the meaning of “he” used in the Act. The judgment rendered by the Court noted that in the Indian Penal Code, Section 8 states that the pronoun “he” and its derivatives are used of any person, whether male or female. “When viewed from this lens, the only rational inference is that the pronoun “he” appearing in Section 3(a), 3(b), 3(c) and 3(d) must not be so interpreted as to restrict the offence engrafted in those sections only to a “man”.
The High Court also said in the judgment that “it is accordingly held that the acts mentioned in Sections 3 and 5 (aggravated penetrative sexual assault) of the POCSO Act are an offence regardless of the gender of the offender, provided the acts are committed upon a child… Giving due regard to the fact that the legislature enacted the POCSO Act in order to provide protection to children from sexual offences—regardless of whether an offence is committed upon a child by a man or a woman—the Court must not interpret any provision of the statute that derogates from the legislative intent and purpose,” it stated.
This is, in fact, not the first time that a woman has been convicted under the POCSO Act. Another woman was convicted under the Act in 2021 in Telangana for abusing an eight-year-old boy and was sentenced to 20 years rigorous imprisonment. The woman worked as an attendant in the school of the minor boy and was convicted in light of the complaint filed by the victim’s father after the child revealed the sordid story when he was quizzed at home over the burn marks on his body. “When the boy said he would inform his parents, the woman had threatened the child and burnt his skin using cigarettes and a lighter.”
Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377. However, these provisions did not protect male children from sexual abuse.
Owing to the lack of any specific legislation, it was pivotal to establish a statute that pointedly tackles the issue of growing child sexual abuse cases in the country, and hence with the efforts of NGOs, activists and the Ministry of Women and Child Development, the POCSO Act, 2012, was enforced on November 14, 2012, which encompassed certain salient features like:
- Confidentiality of the victim’s identity,
- Gender-neutral provisions,
- Mandatory reporting of child abuse cases,
- Child-friendly investigation and trial,
- Time bound disposal of cases and many more.
Even though the POCSO Act, 2012, is an exhaustive legislation which aims at covering all the aspects of child sexual abuse, the need of the hour is to sensitize the public regarding child sexual abuse so that there is no reluctance in reporting these crimes, whether the accused is a male or a female.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi