Supreme Court on POCSO Act, 2012
The increase in sexual crimes against children led to an uproar for enactment of a special law relating to protection of children from sexual offences which included not only sexual assault but also child pornography and it’s storage. Also, the Act provides for punishment in regard to abetment or attempt of any of the offences punishable under the POCSO Act, 2012 as well.
However, the same was not always the case. Before the enactment of the Protection of Children from Sexual Offences Act, 2012 the matters pertaining to sexual crimes against children were dealt under the provisions of Indian Penal Code, 1860. Let’s discuss some case which have been dealt by the Supreme Court before and after enactment of POCSO Act, 2012.
A girl under 16 years was ‘forcibly taken by the accused to his fields,outside the village where he committed rape on her. The court ruled that mere absence of marks of violence on the victim is immaterial because she was under 16 years of age. More importantly, it ruled that the victim cannot be considered as an accomplice to the Act.
The Mathura rape case was an incident of custodial rape in India on 26 March 1972, wherein Mathura, a tribal girl who was a minor at the time, was allegedly raped by two policemen on the compound of a Police Station in a district of Maharashtra. After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in Indian rape law via The Criminal Law (Second Amendment) Act, 1983.
The Supreme Court condoned the delay in filing the FIR in case of rape of a 16 year old girl. The court mentioned that it is common that since the honor of the family is involved, family members took some time to decide whether the matter needs to be taken to the court or not. The court also emphasized that since it was proved that the girl was below 16 years of age, her consent in sexual activity was irrelevant. The court also ruled that delay in reporting of the case will not affect the case if a reasonable explanation can be given.
In a case of rape, the court ruled that “the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment.” It went on to characterize the ‘character’ of the victim as irrelevant as a mitigating or extenuating circumstance.
The NGO Sakshi filed a writ petition in Public Interest Litigation to broaden the definition of rape in cases involving children where the child is abused by insertion of objects into the vagina or insertion of the male organ into body parts such as anus or mouth. The Supreme Court issued valuable guidelines for trial of rape and sexual abuse which concern children. These are known as the Sakshi guidelines:
The Supreme Court observed that the procedure used to determine the age of a child in conflict with the law, as provided by the Juvenile Justice (Care and Protection of Children) Rules, 2007, can be followed in cases falling under the POCSO Act, 2012.
The Supreme Court laid down guidelines to be followed by Special Courts while trying a case under the POCSO Act, 2012, so that the trial is completed within a period of one year from the date of taking cognizance of the offence
The Supreme Court released a set of guidelines in relation to Section 23 of the POCSO Act, 2012 holding the publisher or owner of the media, studio, or photography facility jointly and severally accountable for his employee’s act/omission. The Apex Court released a set of guidelines which are provided hereunder:
The Supreme Court set aside the Bombay High Court’s judgment in the case of Satish Ragde v. State of Maharashtra (2021), which had ruled that grabbing a child’s breasts without “skin-to-skin contact” constituted molestation under the POCSO Act, 2012.
The Apex Court emphasized that Section 7 covers both direct and indirect touch, and the High Court’s interpretation trivializes and legitimizes undesirable behavior that undermines a child’s dignity and autonomy.
The Supreme Court directed that the state must provide ‘support persons‘ for child victims of sexual offenses and the discretion of parent’s should not interfere with the same.
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