Directions: Read the following passage and answer the question.
To deal with sexual assaults and exploitation over children, the government has established special law, POCSO Act,2012.The said Act sanctions every recognised offences of sexual abuse against children by prescribing stringent punishment keeping in mind the gravity of the offence.
The POCSO Amendment Act,2019 was enacted to enhance the punishment up to the death penalty and to curb child pornography. However, the amendment seems to be arbitrary and vague.
Section 4(2) of the POCSO Act, which was inserted by the POCSO Amendment Act of 2019 provides for a classification that is unreasonable and is in violation of Article 14 of the Constitution. Article 14 provides for the "equal protection of laws". It prohibits class legislation but permits reasonable classification of persons or things. The classic nexus test as outlined in the Anwar Ali Sarkar case is;
"To pass the test of permissible classification two conditions must be fulfilled viz.
(I) That the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and
(II) That the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them."
Before the POCSO Act was passed in 2019 the punishment for committing penetrative sexual assault as per POCSO Act 2012 was from seven years imprisonment till life and also fine. The Act of 2019 increased the minimum term of punishment from 'seven' to 'ten' years.
Now, the new amendment provides punishment for the offenders who commit penetrative sexual assault on a child below sixteen years of age. By inserting this, the legislature makes a classification between a child who is below sixteen years of age and a child who is above the age of sixteen, but below eighteen. However, the legislature has defined a "child" as 'any person below the age of eighteen years', for this Act. Thus, the above classification should be a reasonable classification since it has been made within the same group, i.e., 'children'.
There can be no intelligible differentia in this classification. The differentia in this classification is vague, since there is an uncertainty in determining the age of maturity factor. It is to be noted that the differentia must have a rational relation to the objects sought to be achieved by the Act.
This classification gives way for the thought that raping a child below sixteen years is a graver offence, whereas on the other hand raping a child of sixteen or seventeen years of age, who may have the same maturity as some children belonging to the other class is not considered to be a graver offence. This classification thus, is unreasonable and hence violative of Article 14.
Section 11 and 12 of the POCSO Act provides for the provisions regarding sexual harassment and punishment therefore. Section 11 states as "A person is said to commit sexual harassment of a child when such person with sexual intent..." Also, it has been provided that any question which involves "sexual intent" shall be a question of fact. It is an ascertained fact that the question involving intention is very difficult to prove before the Court of law. Also, there arises a question whether an offender performs the acts listed in Section 11 without sexual intention, will it not amount to sexual harassment? Even Section 354 A of the Indian Penal Code, which describes Sexual Harassment does not use the term "sexual intent", since it is not a mandatory requirement for committing sexual harassment. Thus, the term sexual intent creates a loophole in Section 11 of the Act, which will favour the offenders.
Q. Mr. X,X, the uncle of a girl 'A''A' of aged 99 years, is charged under the POCSO Act 20192019 of sexually assaulting A at his home in the absence of his parents. A gives a statement to the police that his uncle touched him inappropriately during many occasions and on the concerned day, he offered him a chocolate if A agrees to kiss him on his cheek. Mr. XX claimed that the said act was completely out of love and affection as his uncle and he had no intention to sexually harass A.A. According to the new amendment, the question of intention is