IS POSCO ACT PROTECTING CHILDREN IN INDIA
On 19th January 2021, an erroneous decision was given by Justice Pushpa Virendra Ganediwala
of the Nagpur Bench of Bombay High Court. Two controversial cases consecutively were passed
on the issue of sexual abuse of children. The incorrect interpretation of the provision of
Protection of Child from Sexual Offences Act, 2012 led to the acquittal of sexual offenders as
there was no “skin to skin” contact for the crime to occur.
According to Section 7 of POCSO Act, “Whoever, with sexual intent touches the vagina, penis,
anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with sexual intent which involves physical
contact without penetration is said to commit sexual assault.”
It started with the case of Libnus v. State of Maharashtra on 15th January’21, it was held by the
Court that the act of holding hands of a minor or having the zip of the pants open at that point of
time doesn’t amount to sexual offence as given under Section 7 of the POSCO Act.
Subsequently, another judgement was delivered on 19th January’21, in the case of Satish Ragde
v. State of Maharashtra where it was ruled that the act of pressing the breast of a child aged
twelve years without removing her clothes will not be amounting to “sexual assault” under
Section 7 of POCSO. This was judgement that led to an uproar that was followed by the
Supreme Court staying the judgement on a mentioned made by the Attorney General KK
Venugopal.
The High Court has overlooked that main element of intention behind the act of touching a minor
girl’s breasts, thus setting a dangerous precedent. A very frequent form of sexual assault is
touching the child’s genitals or breasts swiftly which may not appear to be abnormal to the other
people that are watching. As minors, they may not be able to distinguish between what the
motives behind such touches or actions are and therefore it is the duty of the Court to interpret
such intention from facts and circumstances.
It was held by the High Court that the actions by the accused would not cone under Section 7 of
POCSO Act and acquitted that person under the POCSO Act, and instead confirmed the
conviction under Section 354 of the Indian Penal Code, 1860 reducing his sentence from a
minimum of three years of rigorous imprisonment to mere one year of imprisonment.
Given the present scenario, it is sceptical that the High Court is in need of “stricter proof”. In
furtherance to this, the judgement given showcases that since the punishment under the POCSO
Act are stringent, the accused must not be awarded that sentence as this offence is not that
severe. It is quite worrying to know that the High Court did not consider touching a minor’s
breasts a matter of serious concern and allegation and wanted something more serious to be
constituted as a crime under Section 7 of POCSO. In the way, if the Court began to form a
hierarchy of crimes against children with respect to a very subjective interpretation of the
seriousness of the crime, the entire purpose of developing a provision which intends to prevent
all crimes that fall under the broad ambit will be defeated.
The rule of criminal legislation is to set deterrence in order to curb crime. This is more
significant in the case of POCSO Act which is a legislation that was created keeping in mind the
fact that the existing criminal law framework was both ineffective and insufficient in dealing
with crimes against children. After this judgement and the previous controversial judgment by
the same judge, a great uproar had erupted and the Supreme Court collegium paused that
promotion of the same judge who was to be appointed as a permanent judge of the High Court
The legal system is a means by which an example is set as to what a citizen can expect in case
they face similar injustice. No child/teenager must be misled to believe that groping over their
clothes doesn’t constitute an offence.
