The Delhi High Court has ruled that women can be charged with penetrative sexual assault. This decision came in context with a case related to the POCSO Act.
In the case of Sundari vs. Delhi, Justice Anoop Jairam Bhambhani made the ruling. According to Justice Bhambhani, both men and women can be accused under the POCSO Act for 'penetrative sexual assault' and 'aggravated penetrative sexual assault'.
The justice emphasized that the term 'he' in section 3 of the POCSO Act does not exclusively refer to men. The court asserted that gender discrimination is not permissible in such legal contexts.
What is the case about?
In 2018, a woman from Delhi was charged with sexual violence against a child. In March of the same year, the trial court framed charges against her. She contested this decision in the High Court, arguing that sections 3 and 5 of the POCSO Act cannot be applied to her.
Her argument was based on the use of the term 'he' in sections 3 and 5, suggesting it refers only to men.
What did the High Court say in its verdict?
- Justice Bhambhani concluded that 'he' in section 3 of the POCSO Act should not be understood as referring solely to men. Both men and women fall under its jurisdiction.
- The court pointed out that the term 'he' is not defined in the POCSO Act. Considering the provisions of section 2(2) of the POCSO Act, the definition should align with the definition of gender in section 8 of the IPC, where 'he' refers to both men and women.
- The Justice noted that the POCSO Act was designed to protect children from sexual offenses, regardless of whether the perpetrator is male or female.
How can a woman be accused of penetrative assault?
- The High Court further stipulated that any object entering a child's private parts is considered a sexual offense under the POCSO Act. Therefore, limiting sexual crimes to penile penetration is incorrect.
- The court stated that the term 'he' in sections 3(a), 3(b), 3(c), and 3(d) of the POCSO Act should not limit the crimes to men only.
- The court emphasized that penetrative sexual assault under the POCSO Act is not restricted to penile entry but includes any body part or object.
- By comparing section 375 of the IPC (rape) with sections 3 and 5 of the POCSO Act, it became evident that these offenses are distinct. Section 375 mentions 'men,' while section 3 of the POCSO Act refers to 'persons.' Therefore, the term 'persons' in section 3 of the POCSO Act should not be interpreted as exclusively 'men.' Offenses defined in sections 3 and 5 of the POCSO Act apply irrespective of gender.
What are sections 3 and 5 of the POCSO Act?
Section 3 of the POCSO Act defines 'penetrative sexual assault' and section 5 defines 'aggravated penetrative sexual assault.' According to these definitions, inserting a penis or any object into a child's private parts or mouth is considered penetrative sexual assault.
The minimum punishment for penetrative sexual assault is ten years in prison, which can extend to life imprisonment, alongside fines. For aggravated penetrative sexual assault under section 6, the punishment is a minimum of 20 years, including life imprisonment and the death penalty. Under the POCSO Act, life imprisonment means the convict will remain in jail for their lifetime.
What is the POCSO Act?
The POCSO Act, or Protection of Children from Sexual Offenses Act, was introduced in 2012. This law criminalizes sexual offenses against children.
This act applies to both boys and girls under 18 years of age, aiming to protect children from sexual exploitation and pornography. The law categorizes anyone under 18 as a child and includes stringent penalties for offenses against children.
Originally, the POCSO Act did not include capital punishment, but an amendment in 2019 incorporated the death penalty. Under the act, those sentenced to life imprisonment must remain in jail for the rest of their lives, meaning they cannot be released until deceased.
If someone is found guilty of using a child for pornography for the first time, they face five years in prison. A second offense carries a seven-year sentence. Additional fines are imposed for each offense.
Storing, displaying, or sharing child pornography results in a three-year prison sentence, a fine, or both.
Commercial use of child pornography brings a three to five-year prison sentence for a first offense and five to seven-year sentences for subsequent offenses, along with fines.
What do the statistics say about the POCSO Act?
According to the National Crime Record Bureau (NCRB), the number of cases registered under the POCSO Act is increasing every year.
The NCRB report shows that approximately 54,000 cases were registered nationwide under the POCSO Act in 2021, compared to 47,000 in 2020. From 2017 to 2021, over 220,000 cases were registered under the POCSO Act.
However, the conviction rate under the POCSO Act is relatively low. Over five years, trials were completed for 61,117 accused individuals, but only 21,070 (about 35%) were convicted. The remaining 37,383 were acquitted.
