POCSO Act is gender-neutral legislation, says Delhi High Court

The Delhi High Court has said that the POCSO Act is a gender-neutral legislation while rejecting an assertion that the law is being 'misused' as it is a 'gender based' enactment. Justice Swarana Kanta Sharma took exception to the submission made by an accused under the Protection of Children from Sexual Offences (POCSO) Act seeking to cross-examine the victim again before the trial court, and termed it 'insensitive', 'inappropriate' and 'misleading'.

The judge said the legislature cannot stop enacting laws nor judiciary can stop applying them only because they can be 'misused' as they are enacted to curb offences and get justice to genuine victims.

"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," said the court in a recent order.

'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,' it said.

The court refused to direct re-cross examination of the victim, who was seven years old at the time of the incident in 2016, as well as her mother before the trial court, saying it is duty bound to remain sensitive to the plight of the minor victim. The victim and her mother, the court opined, cannot be recalled to relive the entire trauma after six years of conclusion of their testimony.

"A perusal of the record would reveal that six years have passed since the testimonies of the prosecutrix and her mother were recorded before the learned Trial Court," noted the court. "While this Court cannot dispute that the right to fair trial is a crucial and precious right of the accused, so is the complainant’s right to a fair trial which requires that they should not unnecessarily be harassed, especially in the cases of sexual assault," the court said.