Context

• The Supreme Court recently issued notice in a case involving a woman accused of penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• This decision has reignited debate on whether the law applies equally to all genders.
• While the petitioner asserts that the Act is gender-specific, a comprehensive examination shows that POCSO is inherently gender-neutral.

Interpretation of the Supreme Court’s Judgement: A Gender-Neutral Reading of Section 3

• The General Clauses Act and Gendered Pronouns
  • The petition argues that Section 3 applies only to male offenders because it uses the pronoun
  • However, Section 13(1) of the General Clauses Act (GCA), 1897 states that words importing the masculine gender shall be taken to include females.
  • Since the POCSO Act does not explicitly restrict perpetrators to men, the law must be read in a gender-neutral manner.
• Breadth of Acts Defined Under Section 3
  • Section 3 defines penetrative sexual assault in a manner that encompasses:
    • Digital penetration
    • Object penetration
    • Oral penetration
  • Acts where a person induces the child to perform sexual acts with themselves or others.
  • These are offences that can be committed by individuals of any gender, reinforcing that the statute’s construction is gender-inclusive.

Legislative Intent: Evidence of Deliberate Neutrality

• Government Clarifications
  • The Ministry of Women and Child Development has repeatedly affirmed that POCSO is a gender-neutral Act.
  • These official responses demonstrate a clear legislative intention.
• The 2019 Amendment’s Statement of Objects and Reasons
  • When the POCSO Amendment Bill (2019) was introduced, it explicitly described the Act as gender-neutral, leaving little room for restrictive interpretations.
• Why Gender-Specific Interpretation Would Be Incorrect?
  • While one parliamentary reply emphasised that the Act protects boys also, this cannot be misread to imply that only victims are gender-neutral while perpetrators are not.
  • For comparison, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 (erstwhile IPC Section 375) uses the explicitly gendered terms a man and a woman.
  • The absence of such language in POCSO reflects a deliberate legislative choice to ensure broad applicability.

Normative Justifications: Upholding the Law’s Protective Purpose

• Recognising Diverse Forms of Abuse
  • In Sakshi v. Union of India (2004), the Supreme Court observed that child sexual abuse includes a wide range of sexual conduct, many of which do not depend on the perpetrator’s gender.
• Acknowledging Female Perpetration
  • Although most reported cases involve male perpetrators, research shows that women can and do commit sexual offences against children.
  • A gender-specific reading would make such experiences invisible and deny certain victims justice.
• Protecting Children Above All
  • The central purpose of POCSO is to safeguard children from sexual abuse, irrespective of the sex or gender identity of the offender.
  • A gender-neutral interpretation ensures no gaps in protection and no category of offender escapes accountability.

Conclusion

• A holistic analysis of the statute, its legislative history, and its protective intent demonstrates that the POCSO Act is designed to be gender-neutral.
• Interpreting Section 3 to apply only to male offenders would contradict both the letter and spirit of the law.
• To fulfil its core objective, comprehensive protection of children, the Act must continue to be applied irrespective of the perpetrator’s gender.