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How the mandatory minimum sentence affects the outcome of Pocso cases | India News


While the debate over the controversial Bombay High Court verdict, which held that the absence of “skin-to-skin contact” meant that it was not sexual assault, is infuriated by its restrictive interpretation of the Child Protection Act. sexual crimes (Pocso), children’s rights Activists and lawyers said that another aspect has quietly affected the legal outcomes in such cases: the provision of the minimum sentence.
“We have been resisting the minimum sentence of three years from the beginning. We cannot ignore the fact that more and more judges are going to do this, ”said Bharti Ali, executive director of the Delhi-based child rights NGO Haq. Child rights lawyer Anant Kumar Asthana agreed: “When judges are reluctant to grant the mandatory minimum sentence in a given case, when they do not believe that such severe punishment is justified, they find a way out. When mandatory minimum penalties were introduced, many of us warned that this could happen ”.
The definition of what a sexual assault is can be controversial in itself. “Judges often view the penetrative assault as an assault. In non-penetrating crimes, the defendant can be given the benefit of the doubt, ”said Maharukh Adenwalla, a Mumbai-based children’s rights advocate. And in the absence of the provision for a discretionary sentencing, judges can waive the sentence entirely under Pocso.
In Vasudev v. Madhya Pradesh state in 2014, a minor had accused Vasudev of forcibly holding her hand with sexual intent and making unpleasant comments directed at her. The court acquitted Vasudev because the judge said it did not amount to sexual assault. The same year, in Delhi, State v Bijender, the special court acquitted Bijender of sexual assault charges under Pocso because no private party had been touched; he had been accused of taking a seven-year-old girl to the bathroom, slapping her and ripping her jeans. He was convicted only under IPC.
“The stricter the punishment, the heavier the burden of proof. Makes child victims more vulnerable to questioning in the courtroom. The defense will use all kinds of tactics. It will defeat the larger purpose of Pocso, which is to protect children, ”Ali said.
In a 2016 study on the operation of the Pocso special courts in Delhi, a surviving child had shared that the most difficult part of the trial was the defense line of questioning. “How long did the abuse take to perpetrate? Was the door open or closed? How did you get from point A to B? “The study listed questions that should be avoided.” This can be very confusing for a young child, especially when the concepts of time and distance are not well formed. ”
The same study, conducted by researchers from the Center for Children and Law and the National School of Law at the University of India, found that some within the legal fraternity were debating the amount of punishment. “As an example, one of the respondents shared that the minimum punishment for sexual assault and aggravated sexual assault is high. ‘Should a 21-year-old be jailed for three years for forcibly kissing a girl?’ “Said the studio.
Bengaluru-based legal researcher Swagata Raha and co-author of the study said laws such as the Shakti Act 2020 in Maharashtra, which proposes the death penalty, could backfire: “Women’s and children’s rights groups have become strongly opposed to fixing the implementation of the law, but do not make it so harsh that it becomes counterproductive for children ”.

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