§ Section 11 (in substance)

A person is said to commit sexual harassment upon a child when such person, with sexual intent —

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body, with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen, by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) shows any object to a child in any form or media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

Explanation. Any question which involves sexual intent shall be a question of fact.

§ Three things the prosecution must establish

• The victim is a child, below eighteen.

• Conduct within one of the six clauses.

• Sexual intent. Without it, none of the clauses is satisfied, however offensive the conduct.

• And the absence of physical contact distinguishes the offence from sexual assault. Where there was contact, the charge belongs under Section 7.

§ A question of fact

The Explanation settles it: any question which involves sexual intent shall be a question of fact, decided on the evidence in each case.

How it is inferred. From the words used, the nature of the gesture or object, the repetition of the conduct, the setting, the relationship between the accused and the child, and anything said or done before or after.

Section 30 presumes it, and the accused may rebut the presumption only by proof beyond reasonable doubt.

The same reasoning governs Section 7, and the Supreme Court in Attorney General for India v. Satish treated sexual intent as the determinative ingredient of the POCSO offences built on it.

Words, sounds and gestures

(i), first part

Sexual remarks, sounds or gestures intended to be heard or seen by the child, whether in person, by telephone or on a video call

Showing a body part or object

(i), second part

Exhibiting a part of the body or an object to the child with sexual intent

Making the child exhibit

(ii)

Causing the child to exhibit the child's own body so that it is seen by the offender or another, including over a camera

Showing pornographic material

(iii)

Showing any object to a child in any form or media for pornographic purposes, which covers images, videos and links shared online

Following, watching or contacting

(iv)

Repeated or constant following, watching or contacting, directly or by electronic or digital means: the stalking clause

Threatening a depiction

(v)

Threatening to use a real or FABRICATED depiction of the child's body or involvement in a sexual act; the threat is the offence, whether or not it is carried out

Enticing

(vi)

Enticing a child for pornographic purposes, or giving gratification for it; the grooming clause

§ How the section reaches online conduct

• Clause (iv) says so expressly: following, watching or contacting through electronic, digital or any other means. Repeated messages, calls and online monitoring of a child are within it.

• Clause (v) covers fabricated depictions. A morphed or artificially generated image is enough, and the threat to circulate it is itself the offence, which reaches sextortion of a child.

• Clauses (i) and (iii) turn on what the child hears or sees, not on physical presence, so a remark in a chat or an image sent to a child's phone is within them.

• Clause (vi) captures online grooming for pornographic purposes before any material has been made.

• Where the conduct goes further, the offences in Sections 13 to 15 and Section 67B of the Information Technology Act, 2000, which covers cultivating, enticing or inducing a child into an online relationship for sexually explicit acts, may also apply.

§ Section 12 (in substance)

Whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

There is no minimum sentence, and no aggravated form of sexual harassment. The position of the offender or the age of the child bears only on the sentence within the range.

Under the Juvenile Justice Act, the offence is a petty offence, being punishable with imprisonment of up to three years.

Physical contact

NOT involved

Essential, without penetration

Sexual intent

Required; a question of fact under the Explanation

Required; the key ingredient

Punishment

Section 12: up to three years, and fine

Section 8: three to five years, and fine

Minimum sentence

None

Three years

Aggravated form

None

Sections 9 and 10

Section 29 presumption

DOES NOT APPLY

Applies

Section 30 presumption

Applies

Applies

JJ Act classification

Petty

Serious

Nearest general law

BNS ss. 75, 78 and 79: sexual harassment, stalking, words or gestures insulting modesty

BNS s. 74: assault or criminal force with intent to outrage modesty