The POCSO Act is gender-neutral by design

POCSO Act & Gender Neutrality

Context

• SC issued notice in a case where a woman is accused of penetrative sexual assault under Section 3, POCSO Act, 2012.

  
  

• Issue: Can women be prosecuted under POCSO’s penetrative sexual assault provision?

Key Facts: POCSO is Gender-Neutral

(A) Textual Support

• Section 3 (penetrative sexual assault) does not restrict offender to males.

  
  

• Uses pronoun “he”, but Section 13(1),

  General Clauses Act, 1897 → masculine includes feminine → “he” includes “she”.

  
  

• Section 3 covers non-penile acts (digital, object, oral penetration), possible by female perpetrators.

  
  

• Provision includes making a child perform acts with oneself or a third person → neutral application.

(B) Legislative Intent

• Ministry of Women & Child Development (Lok Sabha reply, Dec 20, 2024) → POCSO is “gender neutral”.

  
  

• POCSO Amendment Bill 2019, Statement of Objects & Reasons → Act is gender neutral.

  
  

• If Parliament wanted gender-specificity, Section 3 would mirror BNS Section 63 (rape), which explicitly says “a man” commits rape.

  
  

• Absence of such wording → deliberate choice for gender neutrality.

(C) Normative Rationale

• SC in Sakshi vs Union of India (2004): child abuse includes wide spectrum of acts, not limited to penile-vaginal intercourse.

  
  

• Abuse rooted in power imbalance, not only gender.

  
  

• Evidence shows women can also commit sexual offences against children.

  
  

• Gender-specific reading → certain victims get excluded, defeating object of POCSO.

Conclusion

• POCSO is gender-neutral for both victims and perpetrators.

  
  

• Ensures protection of all children irrespective of abuser’s gender.

  
  

• Aligns with text, legislative intent, and purpose of the Act.