POCSO Act : Is mandatory minimum sentence counter-productive? – UPSC GS2

  • Bombay High Court has acquitted a man of sexual charges under POCSO act.
  • The existence of Mandatory Minimum Sentence in the POCSO act is leading to these decisions.
  • SC has stayed this order.
  • A petition was filed in the Bombay High Court against the decision of the sessions court.
  • The person was accused of groping and trying to remove the clothes of a 12-year-old girl.
  • The Session Court had convicted a person for the offense of sexual assault under Section 8 of the POCSO Act.
  • The court sentenced him to imprisonment for three years.
  • Bombay High Court in its decision acquitted the person of sexual charges under POCSO act and convicted him for a lesser offense under the Indian Penal Code (IPC).
  • For its decision, High Court provided the following justifications:
    • The groping by the convict was not a direct contact i.e. skin to skin.
    • There are no specific details regarding the removal of clothes of the victim.
    • The offences under POCSO Act provide for stricter punishment. Thus, punishment requires allegations of a more serious nature and a higher standard of proof.
  • Before that in a similar case,¬†State v Bijender (2014),¬†Delhi Court acquitted the accused under section 7 of POCSO Act. Instead, it convicted the accused of an offense under the IPC act.
What is the mandatory minimum sentence?
  • Section 8 prescribes the punishment for the offense of sexual assault defined in Section 7 of the Act. It provides for the mandatory minimum sentence of 3 years and a maximum of 5 years.
  • Where a law provides for mandatory minimum punishment, Courts cannot prescribe the punishment lower than that.
  • It does not give any discretion to the court to pass any lighter sentence. Only the statute will determine the sentence.
  • The sentence is prescribed to act as a deterrent to crime.
  • There are many other laws such as IPC Section 124A, where mandatory minimum punishments have been prescribed.
What are the criticisms of mandatory sentencing?
  1. It results in more acquittals, as when judges think that punishment for the offence is high, they prefer to acquit the accused. It has been reported by the Centre for Child Law at the NLSIU, Bengaluru.
  2. Discretion of punishment is not removed but shifted from the judges to the police.
Why the SC put a stay on the order of the Bombay High Court?
  • High Court decision introduced a new condition to satisfy for a trial under POCSO Act.
  • This decision of the High Court may be used as a precedent by the other courts in similar cases.
  • This differentiation would also have a negative social impact. Low punishment is less likely to discourage the sexual assaults on the children.
Way Forward
Legal experts are of the opinion that mandatory sentences are not very effective to give a deterrent effect or reducing crime in society. Therefore, judicial reforms such as making the sentencing process more accountable, transparent and recording specific reasons would prove be a long lasting solution.

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