6 months ago
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The Supreme Court of India precocious issued announcement connected a petition arising from a lawsuit successful which a pistillate stands accused of ‘penetrative intersexual assault’ against a insignificant boy, an offence defined successful Section 3 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The petitioner has claimed that this proviso is gender-specific, i.e., it applies lone to antheral perpetrators and, hence, cannot use to her. Its last result notwithstanding, the petition raises a question that is foundational to the scope of India’s kid intersexual maltreatment law: tin women beryllium prosecuted for an offence nether this provision?
The substance supports sex neutrality
Going by disposable evidence, the reply seems to beryllium successful the affirmative. The POCSO Act is gender-neutral, qua some perpetrators and victims, for 3 reasons. First, if interpreted properly, the substance of the Act does not restrict its exertion to antheral offenders.
The petitioner has argued that Section 3 is gender-neutral due to the fact that it uses the pronoun ‘he’ for the perpetrator.
However, Section 13(1) of the General Clauses (GC) Act, 1897, states, ‘words importing the masculine sex shall beryllium taken to see females’. Since the GC Act lays down rules and definitions to assistance statutory interpretation, Section 13(1) implies that unless the contrary is explicitly stated in, oregon appears from the discourse of the POCSO Act, ‘he’ includes ‘she’.
This mentation is reinforced by the explanation of penetrative intersexual battle successful Section 3 of the POCSO Act. It encompasses acts beyond penile penetration, specified arsenic integer oregon entity penetration, oregon oral penetration, which tin beryllium committed by pistillate perpetrators arsenic well.
The proviso besides covers situations wherever a idiosyncratic makes a kid execute immoderate of the listed penetrative acts with themselves oregon adjacent with a 3rd person, further underscoring its gender-neutral scope.
A deliberate legislative choice
Second, reliable authoritative sources corroborate the legislative intent of keeping the POCSO Act gender-neutral. For instance, the Ministry of Women and Child Development, Government of India successful a written effect to a question successful the Lok Sabha, dated December 20, 2024, stated unambiguously that POCSO ‘is a sex neutral Act’. Similarly, erstwhile the Protection of Children from Sexual Offences (Amendment) Bill, 2019 was tabled successful the Lok Sabha, its ‘Statement of Objects and Reasons’ besides specified that the POCSO Act was ‘gender neutral’.
Nevertheless, it whitethorn beryllium imaginable to reason that gender-neutrality present is lone meant to use to the insignificant victims of intersexual offences (i.e., boys and girls nether the property of 18 years), but not to the perpetrator. This is particularly due to the fact that 1 of the written answers of the Ministry of Women and Child Development, dated February 7, 2019, to a question raised successful the Rajya Sabha, was that the POCSO Act ‘covers intersexual maltreatment of boys besides arsenic it is simply a gender-neutral Act’.
However, specified a speechmaking would misrepresent the legislative intent. Consider the proviso connected ‘rape’, recovered successful Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 (the erstwhile Section 375 of the Indian Penal Code, 1860). It specifies that ‘a man’ commits rape if helium commits definite forms of penetrative intersexual acts against ‘a woman’.
This is intelligibly a gender-specific proviso which envisages that lone women whitethorn beryllium victims of rape and lone men whitethorn beryllium perpetrators of rape. If Parliament intended to marque the POCSO Act gender-specific, the wording of Section 3 of the POCSO Act, which covers substantially the aforesaid intersexual acts arsenic Section 63 of the BNS, would besides incorporate the aforesaid gender-specific language.
That the POCSO Act does not marque immoderate specified specification should beryllium seen arsenic a deliberate legislative choice, reflecting the intent to marque the POCSO Act much broadly applicable.
It serves the law’s purpose
Finally, determination are beardown normative reasons for interpreting the POCSO Act arsenic gender-neutral for some victims and perpetrators. The Supreme Court, successful Sakshi vs Union of India (2004), highlighted the diverseness of maltreatment that immoderate instrumentality aimed astatine protecting children indispensable encompass erstwhile it observed that kid intersexual maltreatment often involves a wide scope of intersexual behaviour beyond penile-vaginal intercourse.
Although patterns of kid intersexual maltreatment tin disagree depending connected the genders of the unfortunate and perpetrator, specified maltreatment is fundamentally embedded successful imbalances of power, spot and vulnerability. Thus, the bulk of cases reported nether the POCSO Act inactive impact antheral perpetrators and pistillate victims, but probe and subsister accounts uncover that women tin and bash perpetrate intersexual offences against children. A gender-specific speechmaking of the POCSO Act would render these experiences invisible and contradict justness to definite victims.
The law’s nonsubjective should beryllium to safeguard children from intersexual abuse, irrespective of the enactment oregon sex individuality of the idiosyncratic inflicting it.
Shraddha Chaudhary is Assistant Professor, School of Law, BML Munjal University, Gurgaon
