Brij Bhushan and Ayodhya mahants have an alarming demand – to amend POCSO

While POCSO lawyers and child rights activists believe that POCSO may have to be amended, it is not for the reasons cited by Brij Bhushan Singh or the seers supporting him.
BJP MP and WFI chief Brij Bhushan
BJP MP and WFI chief Brij Bhushan
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As India’s champion wrestlers continue their protest demanding the arrest of BJP MP and Wrestling Federation of India (WFI) chief Brij Bhushan Singh for alleged sexual assault, many Hindu mahants of Ayodhya have come out in support of the BJP strongman from Uttar Pradesh. Apart from just supporting him, the Ayodhya seers have now backed Brij Bhushan’s demand that the Protection Of Children from Sexual Offences (POCSO) Act be amended, and have announced that they will congregate on June 5 to demonstrate against this. Brij Bhushan, who has been booked under Section 10 of the POCSO Act among others, had earlier, in a brazen defence, claimed that the Act, meant to comprehensively protect children from sexual offences, is being “misused”. He further claimed that under the leadership of the seers, they would “force” the union government to change certain provisions of the POCSO law.

The mahants who spoke to the media alleged that public figures are being “harassed” because of the POCSO law and are being subject to “character assassinations” and “media trials” even before there is a conviction. According to the Indian Express, the mahants from Ayodhya plan to submit a memorandum to the union government seeking an amendment of the POCSO law.

Mahant Mithlesh Nandani Sharan of Hanumat Niwas, a seer from Ayodhya, told the media that there are several sub-clauses of the POCSO Act which define harassment. According to the Indian Express, the seer claimed that these clauses even consider “looking at someone, staring or touching” as harassment. He also said that public figures are constantly surrounded by people who wish to get their blessings and share their grievances, but when some of their grievances are not resolved, they “end up making false allegations.” Sharan further said that some of the age-old practices of the seers themselves like blessing someone by touching their head could be misconstrued as sexual harassment.

But upon perusal of the POCSO Act, one can understand that the sub-clauses allow greater recourse to reporting offenses. Swagata Raha, lawyer and Director at Enfold India, an organisation that works to reintegrate survivors of child sexual abuse, told TNM that the POCSO does not label any touch or look as a sexual offence. “Section 11 of the POCSO Act requires the presence of sexual intent for the offence of sexual harassment, and includes acts such as showing a child pornography, making a child exhibit their body or uttering words or making gestures with the intention that it is heard or seen by the child.  It is also important to underline that reporting of sexual offences is low and when the perpetrator is in a position of trust or authority, there are additional risks and barriers that a victim experiences,” she said.

While POCSO lawyers and child rights activists believe that POCSO may have to be amended, it is not for the reasons cited by Brij Bhushan or the seers supporting him.

Vidya Reddy, Co-Founder of Tulir, a Chennai-based organisation that works against child sexual abuse, told TNM that there are several problematic aspects in POCSO like mandatory reporting and criminalisation of adolescent sexuality, but those do not apply to this situation. “It is interesting how Brij Bhushan has not been arrested yet because there is not a lot of wiggle room to not make an arrest if he has been booked under POCSO. This is also setting a very dangerous precedent. There will be a question of why other perpetrators are being arrested when Brij Bhushan is not,” she said. Section 19 of the POCSO Act makes it mandatory for any person including the child to approach the police in case an offence under the Act is committed or apprehends such an offence to take place. Section 21 of the Act also prescribes punishment for non-reporting, excluding the child.

Vidya also stated that before POCSO was introduced, there was no law that reflected the absolute experience of the child who was sexually abused. “The range of offences that are committed against a child can start with a seemingly innocuous touch or comment as a way of testing the waters before it can escalate. This may create confusion for the child, which will work to the abuser’s advantage because anytime a child tells someone about the abuse, it might be brushed off as the child’s imagination,” she explained.

Kushi Kushalappa, one of the Directors at Enfold, also agreed that there needs to be more nuance in the mandatory reporting provision of the POCSO Act. “POCSO may need to be amended for some reasons but not because a group of supporters doesn’t like that the person they are favouring is alleged to have committed child sexual assault,” she said.

Responding to Brij Bhushan and the mahants’ comments on the POCSO law being “misused”, Vidya said that there is a small chance for misuse in any law. She added, “This man has not been accused by one person but by many people. Nobody is saying that getting blessed on the head is going to count as sexual harassment. There is a context in which touch happens and most people know when someone accidentally touches them and when it is consciously being done. One can also not ignore the power dynamic between the perpetrator and the survivor in cases like this.”

Noting how the government employs “doublespeak” with regard to the allegations against Brij Bhushan, Vidya said, “On one hand, the government is talking about how the security of women and children is really important. On the other hand, they are not taking any action when the accused is one of their own. There is a selectiveness in how the law is being exercised.”

Commenting on the allegation that POCSO is being “misused to target people”, Kushi said that in a country like ours where sexual violence against children is grossly underreported, people should not make such claims about sexual violence. “I also don’t think our social fabric encourages people to go and file cases unless there is some merit to the allegations.” Kushi is also of the opinion that employing POCSO in romantic adolescent relationships may lead to falsely attributing culpability, but that does not mean the Act itself “targets people.”

Swagata pointed out that although Rule 3(5) of the POCSO Rules, 2020, requires the Government to prepare a Child Protection Policy for adoption by all institutions, organisations, or agencies working with, or coming in contact with children, no such policy is in place. “It is time that child safeguarding be prioritised and a model policy be developed that covers all organisations and institutions in the space of education, sports, health, and religious institutions as well. Such a policy will help ensure that institutions put in place prevention and response measures, as well as accountability mechanisms to ensure children’s safety and well-being as they access these spaces and services,” she said.

The top wrestlers of the country including Sakshi Malik, Vinesh Phoghat, and Bajrang Punia, among others, have been protesting outside the Jantar Mantar since April 23, demanding the arrest of Brij Bhushan. The MP has been accused of sexual assault by seven women so far, including a minor, and booked under Sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354A (sexual harassment), and 354D (stalking) of the Indian Penal Code, and Section 10 of the POCSO Act (aggravated assault).

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