The Essence of POCSO & Bombay High Court

Updated: Feb 25

Before proceeding directly to the issue, let us first understand the basic history related to the issue – Child Abuse, also called cruelty, the willful infliction of pain and suffering on a child through physical, sexual or emotional mistreatment. Prior to 1970s, the term Child Abuse normally referred to only physical mistreatment, but since then its application has expanded, to include, in addition to inordinate physical violence, unjustifiable verbal abuse; the failure to furnish proper shelter, nourishment, medical treatment, or emotional support; incest or other cases of sexual molestation or rape; and the use of children in prostitution and pornography.

A guarantee was given to the youth of India in 2012 with the introduction of the Protection of Children from Sexual Offenses Act, 2012; the guarantee of a child-friendly court that requests humaneness in legal executive for the individuals who are victims of abuse. POCSO Act is a complete enactment which tries to give assurance to children from the offences of rape, inappropriate behaviour and pornography and defending the interests of the child at each phase of the judicial process by consolidating child amicable mechanisms for reporting, recording of evidence, investigation and quick preliminary of offences through assigned special courts.

The preface of the POCSO Act ensures the victim child secured rights and freedom as the right to life and survival; the eventual benefits of the children; the right to be treated with respect and compassion; the right to be protected from discrimination; the right to exceptional preventive measures; the option to be educated; the right to be heard and to communicate perspectives and concerns; the right to effective help; the right to protection; the right to be shielded from difficulty during the judicial process; the right to wellbeing and the right to remuneration.

To maintain these base lawful promises the youngster ought to be dealt with differently in cases of apprehensions sexual maltreatments cases; else it will add up to infringement of Article 14 of the constitution. Child sexual abuse has reached a critical situation in India. Many studies both from governmental and non-governmental sources show a grim picture of the society.

For example, Consecutive dubious controversial decisions relating to child sexual offences forced the Supreme Court collegium to take the unprecedented step of withdrawing its recommendation to the Centre to make the author of the judgments, Justice Pushpa Virendra Ganediwala, an additional judge in Bombay high court, a permanent judge of the HC. Ganediwala staggered many with her January 19 judgment acquitting a 39-year elderly person from the charge under section 6 of the Protection of children from sexual offences (POCSO) Act on the ground that pressing the breasts of 12 years girl without removing her top didn't involve skin-skin to contact and subsequently, was not an offence under the Act.

Days after Bombay High Court, Justice Pushpa Ganediwala, passed controversial orders on cases of sexual harassment of minor children and rape, the Supreme Court collegium withdrew its recommendation to confirm her permanent status in the state’s top court. The National Commission for Women (NCW) took cognizance of the order said that it would challenge it. The National Commission for Protection of Child Rights (NCPCR) also took Suo Moto cognizance of the case and requested the Maharashtra government to review the judgement.

The legislative intent defines Sexual Assault (defined under Section 7 of POCSO in cases where the victim is a child) and Sexual Harassment (defined under Section 11 of POCSO in cases where the victim is a child) differently wherein the former is more dreadful than the latter. Now it must be considered that if there is no physical contact, which must be interpreted liberally, then in case of child Section 11 of POCSO, which is specifically enacted as prevention for children, must be applied rather than the provision of Indian Penal Code.

Let me be loud and clear to say, after analysing the essence of child sexual abuse, that the erotic use of a child, whether physically or emotionally, is sexual exploitation in the fullest meaning of the term, even if no bodily contact is ever made. It is very crucial to understand that the phrase “no sexual contact” because abuse comes in many shapes, colours and sizes and that all abuse is bad which may have a lasting consequence on the victim for years. Child Sexual Abuse does not need to allow physical contact between the perpetrator and the victim.

The bottom line is that if the victim in the cases of Sexual Abuse/Harassment/Assault is a child then India has special substantial and procedural laws to deal with these cases differently and thus, these cases cannot be taken under the general umbrella for whatsoever reason. The Court must respect the law laid down by the legislature and must not exercise its law-making powers, entrusted to it under the doctrine of stare decisis, arbitrarily.

“Abuse is never contained to a present moment; it lingers across a person’s lifetime and has pervasive long-term ramifications.” ― Lorraine Nilon, Breaking Free from the Chains of Silence: A respectful exploration into the ramifications of Pedophilic abuse
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