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  • Writer's pictureShreya Sinha


Nikhilesh Koundiny, 3rd Year, Symbiosis Law School, Pune



January 19, 2021, can be considered as a dark day in India for the advancement of child rights. Twitter, Facebook, Instagram, and various media networks have been targeting the above case which is said to be an erroneous judgment that may have too many adverse repercussions for children of tomorrow. The judge in the following case charged the accused under the Indian Penal Code and not under the specialized law of Prevention of Children from Sexual Offences Act, 2012 (POCSO) for squeezing the breasts of a 12-year-old child. While the district court charged the accused with both POCSO and Indian Penal Code, the High Court reversed the decision while stating that “skin to skin” contact[1] was absent and hence didn’t qualify as an offence under section 7 of the POCSO Act. The accused was punished under the Indian Penal Code but this blog discusses why such a decision is against the laws made for children and why such a decision sets a wrong precedent.


Children’s rights have always been at the forefront of the Indian legislature and judiciary as they are the future generation. The Constitution also imparts special rights to children under various articles including the fundamental right to special provisions under Article 15(3) of the Constitution. Slowly legislators understood that there needed to be provisions for the protection and fruitful development of children around the country. Legislations supporting this vision were introduced such as the Juvenile Justice Act, 2000/2015 and the POCSO Act, 2012. Having seen that 53 percent of children in India face some form of sexual abuse the act was introduced for lowering this number and acting as astringent legislation for punishing offenders.

In fact, the Ministry of Women and Child Development in their guidelines under section 39 of the POCSO Act, 2012 has laid down certain principles when courts take a decision under the said Act:

  1. Best interests of the child- the act being envisioned for children must guarantee the right to protection and development for the child. Hence while taking the decision the courts must take into consideration the interests of the child and the effect of the decision of the child.

  2. Right to compensation- the guidelines also enumerate that a victim must be awarded compensation for her rehabilitation and relief caused due to the incident.


Keeping the guidelines in mind the blog studies whether the decision was justified by the court or was erroneous to the very principles of POCSO:

The accused had sexual intent

The case facts clearly indicate that when the daughter narrated the incident to her mother, she stated that on the behest of giving guava the accused brought her home and pressed her breast, and also tried to remove her shorts. The said evidence was accepted under the principle of res gestae by the court. This clearly represents sexual intent and if the mother hadn’t shown up or the daughter hadn’t screamed the incident could have led to rape on part of the accused. Hence if this case becomes precedent, then the offenders will try to subvert the law and violate the sexual sanctity of a child by not removing her clothes and walking away with far less punishment.

Definition of Sexual Assault

The judge held that section 7 applies when there has been skin-to-skin contact but in the present case the accused had pressed the breasts of the girl child through the salwar and not necessarily removed it. But, section 7 merely states that if a person with sexual intent touches the breasts of a child it would classify as sexual assault. If the rule laid down by the judge is followed, whoever touches a woman inappropriately without removing clothes will not be punished with severe punishment but will merely be held liable under penal laws which carry a bare punishment of 1 year.

Moreover, under Vishaka and Ors. v State of Rajasthan[2] the Apex court held that sexual assault/harassment involves direct physical contact or any other unwelcome physical conduct of sexual nature. The High Court has erred in not recognizing the apex court decision as any unwelcome physical conduct would classify as sexual assault. Hence the definition of sexual assault has been looked at at a limited level and has been wrongly interpreted. If the principle of skin-to-skin contact is applicable in the court of law then in the case of Mukesh v State for NCT of Delhi[3] inserting the iron rod inside the victim wouldn’t have been a crime as there wasn’t any skin-to-skin contact.

Principle of Parens Patriae

The state is supposed to play the role of a parent and hence any decision taken by the state through the legislature, executive, and judiciary must look at furthering the interests of the state and look after citizens like children. Hence this judgment is in direct contravention of the said principle as the state institution should have punished the accused to the fullest extent of a minimum of 5 years. Moreover, in the case of Gorakh Daji Ghadge v State of Maharashtra[4], the court held that crimes relating to women must be dealt with severely. In Imratlal v State of Madhya Pradesh[5], the court held that testimony of the victim must be sufficient to convict the accused. In the present case, the witnesses and the prosecution established the guilt of the accused beyond reasonable doubt and hence as the parent it should have convicted the accused of the fullest punishment law could prescribe.

Amending Section 7 of POCSO

Though it has been pertinently explained above that the judgment is erroneous to the statute and precedence laid down earlier this situation has clearly portrayed that the problem with the law is that of subjectivity. Thus, for children who are the most important assets of the country, the law must be objective. While the power to enhance punishment may reside with the judiciary, the ingredients must be decided by the legislature. Hence section 7 must be amended as held in the Vishaka case whereby any unwelcome touch including what already exists in the section will qualify as sexual assault. This would prevent such erroneous orders from being introduced in the future.


Law as such must focus to deliver its promises to the stakeholders involved when deciding upon particular legislation. While the criminal procedure code was used in the present case, it has been patiently explained as to how POCSO must have been implemented. While even the Joseph Raz theory of jurisprudence indicates towards application of special laws, this case was fit to put the accused behind bars for 5 years than for 1 year that he has been sent for. But for the sake of children who are the next-gen laws for crimes against children must evolve and must be much harsher than what they are at present whereby any harm done to a child must be met with a minimum of 10 years rigorous imprisonment and in cases of rape life imprisonment or the death penalty as administered in the Nirbhaya case. This will ensure that before touching a child inappropriately a thought will cross the mind of the individual at least a hundred times as to the repercussions of the said act.

The National Commission for Protection of Child Rights (NCPCR) has already been the monitoring body of POCSO under section 44 asked for reevaluating the said order. It is clear then that the order is erroneous and must be taken down immediately so that it does not become a precedent. As said by a knowledgeable man, “we owe our children, the most vulnerable citizens in any society a life free from violence and fear”.



[1] Satish Ragde v State of Maharashtra, Criminal Appeal 161 of 2020 [2] Vishaka v State of Rajasthan, (1997) 6 SCC 241 [3] Mukesh v State for NCT of Delhi, (2017) 6 SCC 1 [4] Gorakh Daji Ghadge v State of Maharashtra, 1980 CriLJ 1380 [5] Imratlal v State of Madhya Pradesh, 1996 (0) MPLJ 662


(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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