POCSO Act not gender-based and is neutral: Delhi High Court

The Delhi High Court, hearing a Protection of Children from Sexual Offences (POCSO) Act case, rejected the submission that the POCSO Act is being “misused” as it is a “gender-based” enactment. It also said that the enacting of laws cannot be stopped by the legislature nor applying them can be stopped by the judiciary only because they can be misused as the laws are enacted to curb offences and get justice to genuine victims.

Justice Swarana Kanta Sharma said this while hearing the plea of an accused seeking to cross-examine the victim, who was seven years old at the time of the incident in 2016, again before the trial court Justice Sharma took exception to the submission made by an accused that the POCSO Act is a gender-based legislation and said that is not gender-based and is neutral as far as victim children are concerned.

“The contentions of learned counsel for the petitioner in the pleadings as well as during oral arguments that the POCSO Act is a gender based legislation and therefore is being misused is not only inappropriate but misleading too. To say the least, POCSO Act is not gender-based and is neutral as far as victim children are concerned,” the High Court said.

The High Court further said that any law can be misused and the legislature cannot stop making laws and the judiciary cannot stop using them for that reason. “Any law, whether gender-based or not, has the potential of being misused. However, only because laws can be misused, the legislature cannot stop enacting laws nor judiciary can stop applying such laws since they have been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims,” the High Court said. Terming the submission of the accused as “insensitive”, “inappropriate” and “misleading”, Justice Sharma refused to direct re-cross examination of the victim and her mother before the trial court.

The High Court said that it is duty bound to remain sensitive to the plight of the minor victim and the minor victim and her mother cannot be recalled to relive the entire trauma after six years of conclusion of their testimony.

The High Court noted that six years have passed in the case since the testimonies of the victim and her mother were recorded before the trial court and said that the right to fair trial is a crucial and precious right of the accused, however, the complainant also has a right to a fair trial and it requires that they should not unnecessarily be harassed, especially in the cases of sexual assault.