Content
- The POCSO Act is gender-neutral by design
- Too little, much later
The POCSO Act is gender-neutral by design
Why in News?
- The Supreme Court issued notice on a petition where a woman is accused of ‘penetrative sexual assault’ (Section 3, POCSO Act, 2012).
- The petitioner argued that Section 3 applies only to male perpetrators, claiming the provision is gender-specific.
- The case raises a foundational question: Can women be prosecuted for penetrative sexual assault under POCSO?
Relevance :
- GS-II: Police reforms, Judicial Interpretation, Vulnerable sections (Children), Legislative intent
- GS-I (Society): Gender issues, Protection of children
- GS-II (Governance): Statutory interpretation, Role of General Clauses Act
- GS-II (Polity): Constitutional values—equality (Art 14), non-discrimination (Art 15), protection of children
Practice Question :
- The POCSO Act is often described as gender-neutral by design. Discuss how statutory interpretation, legislative intent, and child-centric principles support a gender-neutral reading. (250 Words)
What is the POCSO Act?
- Enacted in 2012 to protect children (below 18 years) from sexual offences.
- Covers penetrative sexual assault, aggravated assault, sexual harassment, pornography.
- Designed as a comprehensive, child-centric special law with mandatory reporting, special courts, and survivor-friendly procedures.
Core Legal Issue in This Case
- Whether Section 3 (penetrative sexual assault) applies to female perpetrators.
- Petitioner’s claim: Section uses the pronoun ‘he’, implying only males can be offenders.
- Judicial question: Is POCSO gender-neutral regarding perpetrators, victims, or both?
Textual Evidence Supporting Gender Neutrality
- Section 13(1), General Clauses Act (1897):
- Words importing masculine gender include females unless statute states otherwise.
- The POCSO Act does not explicitly restrict offenders to males.
- Section 3 includes acts beyond penile penetration:
- Digital penetration
- Object penetration
- Oral penetration
- Acts where a child performs penetrative acts on themselves or a third person
- These acts can be committed by persons of any gender, reinforcing neutrality.
Legislative Intent: Explicitly Gender-Neutral
- Lok Sabha written reply (Dec 20, 2024): Government clarified POCSO is gender neutral.
- Statement of Objects & Reasons, POCSO Amendment Bill 2019: Reiterates gender neutrality.
- Comparative logic:
- BNS Section 63 (rape) is explicitly gender-specific (“a man” commits rape against “a woman”).
- If Parliament wanted POCSO to be gender-specific, it would have written similar wording.
- Its absence shows deliberate legislative intent to keep POCSO gender-neutral.
Do Government Statements Limit Neutrality Only to Victims?
- Some replies mention “covers sexual abuse of boys as it is gender-neutral”.
- However, this does not exclude gender–neutrality for perpetrators.
- A restricted reading would contradict:
- Statutory language
- General Clauses Act
- Legislative history
- Broader protective purpose of POCSO.
Normative Justification for Gender-Neutral Interpretation
- Supreme Court in Sakshi v. Union of India (2004):
- Child sexual abuse involves many forms beyond penile-vaginal intercourse.
- Abuse is rooted in power, trust, vulnerability, not just gender dynamics.
- Research shows women can and do commit sexual offences against children.
- Gender-specific reading would:
- Render certain offences invisible
- Deny justice to victims abused by female offenders
- Undermine the Act’s protective purpose.
Why Gender-Neutral Reading Serves the Law’s Purpose
- POCSO’s objective: protect children from all forms of sexual abuse.
- Must be interpreted in a manner that:
- Reflects ground realities
- Ensures all victims are protected
- Holds all offenders accountable
- Gender-neutral interpretation aligns with:
- Statutory text
- Legislative intent
- Judicial precedents
- Modern understanding of abuse dynamics.
Constitutional & Policy Angle
- Aligns with Articles 14 & 15 (equality, protection from discrimination).
- Prevents arbitrary exclusion of perpetrators based on gender.
- Supports a rights-based approach centred on child safety, not gender assumptions.
Likely Judicial Considerations
- Court will examine:
- Statutory wording
- General Clauses Act
- Legislative debates, official statements
- Purpose-oriented interpretation
- Expected direction: Upgrading POCSO interpretation to align with child-centric justice.
Conclusion
- Strong legal, textual, and normative grounds indicate that POCSO is gender-neutral for both victims and perpetrators.
- A gender-neutral reading best fulfils the intent and purpose of the Act:
- Protecting all children
- Recognising all forms of abuse
- Holding all offenders accountable
Too little, much later
Why in News?
- The Government notified the Digital Personal Data Protection (DPDP) Rules, 2025 on 14 November 2025.
- The Rules delay implementation of almost all key data protection safeguards until 2027, while the dilution of the Right to Information (RTI) Act takes immediate effect.
- Raises concerns over:
- Weak privacy protections,
- Reduced transparency under RTI,
- A non-independent Data Protection Board of India (DPBI),
- Prolonged compliance timelines favouring Big Tech and government agencies.
Relevance :
- GS-II: Government policies, Transparency, RTI, Regulatory bodies
- GS-III: Data governance, Cybersecurity, Privacy as a fundamental right
- GS-II (Polity): Executive accountability, Separation of powers
- GS-III (Tech): Digital economy regulation, Big Tech oversight
Practice Question :
- The Digital Personal Data Protection Rules, 2025 have been criticised for delaying privacy protections while immediately curtailing transparency under the RTI Act. Analyse. (250 Words)
Evolution of India’s Data Protection Framework
- 2017: Supreme Court in Puttaswamy (Privacy) judgment declared privacy a fundamental right.
- 2018: Srikrishna Committee draft – strong, rights-based, independent regulator.
- 2019–2021: Multiple drafts diluted user rights; Joint Parliamentary Committee suggested 90+ amendments.
- 2022: Govt withdrew the JPC Bill, promised a new framework.
- 2023: DPDP Act passed – simplified but diluted user protections; expansive exemptions for government.
- 2025: DPDP Rules notified – criticised for delaying safeguards and weakening transparency.
What the DPDP Act 2023 Sought to Do ?
- Regulate digital personal data processing.
- Obligations on Data Fiduciaries, rights for Data Principals.
- Introduced Data Protection Board of India (DPBI).
- Provided broad government exemptions (national security, public order, research).
- Amended RTI Act to narrow definition of “information.”
Key Features of DPDP Rules 2025
- Most core provisions deferred to 2027, including:
- Independent grievance timelines
- Data breach notifications
- Rights to correction, erasure, and portability
- Strict purpose limitation
- Immediate implementation of RTI dilution restricting access to personal information.
- Compliance timelines (12–18 months) for private companies, despite long prior awareness.
- Procedural framework for DPBI but no structural independence.
Major Concerns Raised
a) Delay of Protections to 2027
- Pushes actual privacy enforcement nearly 4 years after the Act, leaving users vulnerable.
- Weakens constitutional promise of informational privacy.
b) RTI Dilution Implemented Immediately
- Public Information Officers may now decline any personal information unless mandated elsewhere.
- Shrinks transparency space built since 2005.
c) Non-Independent Data Protection Board
- DPBI placed under MeitY, which:
- Courts Big Tech investments, and
- Will investigate those same firms.
- Structural conflict of interest; lacks autonomy of regulators like TRAI/SEBI.
d) Weak Checks on Government Access
- Wide exemptions remain unchanged.
- Limited accountability for state surveillance or misuse of citizen data.
e) Industry-Favourable Timelines
- Big Tech receives long compliance buffers despite advance preparedness.
- Citizens continue without meaningful privacy safeguards.
Implications for Citizens
- Continued asymmetry of power between citizens and the state/Big Tech.
- Users remain “open books”, with limited control over:
- What data is collected
- How long it is stored
- How it is used/shared
- Reduced ability to use RTI for accountability of public institutions.
Governance & Institutional Issues
- Lack of independence undermines credibility of the data protection regime.
- Over-reliance on executive rule-making without sufficient parliamentary oversight.
- DPBI’s structure insufficient for complex enforcement (cross-border flows, AI profiling).
Comparison with 2018 Draft / Global Norms
- 2018 Draft:
- Strong rights, strict data minimisation, independent regulator.
- Closer to GDPR standards.
- 2023 Act + 2025 Rules:
- More centralised control
- Far weaker user autonomy
- Broader government exemptions
- Reduced enforcement power
- Global Gap: India diverges from GDPR, Brazil LGPD, South Korea PIPA — all of which ensure independent regulators.
Impact on Transparency & Accountability
- Immediate RTI dilution reduces:
- Democratic oversight
- Investigative journalism
- Anti-corruption disclosure
- Creates a privacy–transparency paradox: privacy protections delayed, transparency curtailed overnight.
Constitutional & Rights-Based Analysis
- Delaying protections undermines the right to privacy (Art. 21).
- RTI dilution weakens citizens’ right to information, affecting participatory democracy.
- Conflicts with constitutional principles of proportionality, necessity, accountability.
Way Forward
- Ensure independence of DPBI akin to a statutory regulatory authority.
- Revisit RTI amendments to restore transparency.
- Clear timelines and immediate enforcement of core user rights.
- Stronger safeguards for:
- Government access
- AI-based processing
- Cross-border transfers
- Data localisation balance
- Increased parliamentary scrutiny and open public reasoning for rule-making.
Conclusion
- Eight years after recognising privacy as a fundamental right, India remains far from a robust privacy framework.
- The 2025 Rules delay protections, weaken transparency, and maintain structural weaknesses in the institutional architecture.
- For citizens, the result is a continued imbalance of privacy vs state/industry power, undermining both accountability and digital rights.
