(UPSC GS Paper II – “Mechanisms for protection of vulnerable sections”)
Context (Introduction)
A Supreme Court notice in a case involving an alleged female perpetrator of penetrative sexual assault has reopened debate on whether the POCSO Act — India’s primary child-protection law — is gender-neutral in prosecuting both victims and offenders.
Main Arguments
- Statutory Interpretation Favors Inclusion
- Section 3 uses the pronoun “he”, but Section 13(1) of the General Clauses Act (1897) clarifies that masculine words include females unless context dictates otherwise.
- The broad definition of penetrative sexual assault — including digital, object-based, and oral penetration — clearly enables prosecution of women as potential offenders.
- The inclusion of acts where a person makes a child perform penetration further strengthens this gender-neutral reading.
- Legislative Intent Unambiguously Confirms Neutrality
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- Parliamentary records consistently reflect gender neutrality. The Ministry of Women and Child Development (Lok Sabha, 20 December 2024) and the 2019 Amendment Bill’s Statement of Objects and Reasons explicitly describe POCSO as gender-neutral.
- In contrast, Section 63 of the Bharatiya Nyaya Sanhita (2023) clearly limits rape to a male perpetrator and female victim. The fact that POCSO avoids such gendered language indicates a deliberate legislative choice.
- Normative and Judicial Logic Require Neutral Protection
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- The Supreme Court in Sakshi vs Union of India (2004) recognised that child sexual abuse spans a wide spectrum beyond penile-vaginal intercourse.
- Abuse stems from power, trust, and vulnerability, not gender alone. Survivor accounts and research affirm that women can also perpetrate abuse.
- A gender-specific interpretation would conceal these experiences and deny justice to certain victims, undermining the Act’s protective purpose.
Criticisms and Drawbacks Identified
- Ambiguity from Masculine Pronouns: Use of “he” in statutory text triggers avoidable interpretive disputes despite the GC Act’s clear rule.
- Inconsistent Official Communication: Some earlier Parliamentary replies emphasised gender neutrality only for victims, inadvertently creating confusion over perpetrators.
- Social Biases Limit Recognition: Deep-rooted notions that women cannot commit sexual offences hinder reporting, investigation, and acknowledgement of abuse against boys.
- Limited Jurisprudence: Few POCSO cases have involved female offenders, resulting in sparse judicial precedent and uncertainty in enforcement.
- Doctrinal Overlap with BNS: The coexistence of a gender-specific rape definition in the BNS and a gender-neutral penetrative assault definition in POCSO risks interpretive inconsistency in similar factual situations involving minors.
Reforms and Strengthening Measures
- Clarify Statutory Language: Amend Section 3 to replace pronouns with gender-neutral terms (“person”), eliminating reliance on interpretive rules.
- Ensure Consistent Government Messaging: Uniform Ministry clarifications and FAQs should emphasise that gender neutrality applies to both victims and perpetrators.
- Sensitise Law-Enforcement and Judiciary: Training modules must address non-traditional abuse patterns and empower officials to handle cases involving female offenders without bias.
- Improve Research and Documentation: Systematic studies on abuse by women and non-conforming offenders can inform policy design and correct societal misconceptions.
- Harmonise POCSO with the BNS: A clarificatory amendment or authoritative Supreme Court ruling can ensure coherent interpretation between POCSO and BNS, avoiding doctrinal conflict.
Conclusion
The POCSO Act was consciously drafted as a gender-neutral framework to protect all children from diverse forms of sexual harm. Upholding this neutrality best aligns with its text, legislative intent, and protective purpose. Clear statutory language, consistent official communication, and informed judicial interpretation can ensure equal justice for every child, regardless of the gender of the offender.
Mains Question
- Evaluate the POCSO Act’s overall design in ensuring justice for all child victims irrespective of the gender of the offender. (250 words, 15 marks)
Source: The Hindu