Introduction: (Sexual) Panic in the Courtroom
The question of how law understands and governs child sexuality has never been more urgently contested than it is today. The global exposure of Jeffrey Epstein’s decades-long abuse of minors, sustained not despite but through the institutional networks surrounding him, sits alongside India’s own unfinished reckonings. The girls of the Muzaffarpur Balika Grih were assaulted inside a state-funded shelter while a government report documenting their abuse lay unacted upon for over a month, the minor in Unnao watched her father die in judicial custody before her rapist was charged, and the survivors at Asaram’s ashram saw their witnesses murdered before they could speak. These cases press into public discourse a question that child protection law, which is not whether children deserve protection, but whether the apparatus assembled in the name of that protection actually delivers it, and to whom.
Foucault’s central provocation is that modern society did not repress sexuality so much as manufacture it as an object of relentless institutional knowledge and power, generating an apparatus of courts, medical experts, and classificatory discourses all dedicated to administering the very thing they claimed to forbid. His story of a French farm hand acquitted of any crime yet institutionalized for life in 1867, produced not as a criminal but as a specimen to be classified and administered indefinitely, illustrates this with an economy that I found greatly interesting. However, I think that Foucault’s analysis remains largely indifferent to whose bodies move through it most completely, offering no account of why the apparatus finds the farm hand so efficiently while the powerful pass through it on altogether different terms. It was this silence in Foucault that drew me to Gayle Rubin, whose 1984 essay “Thinking Sex” approaches the politics of sexuality asking who bears the cost of the systems that discourse produces.
What does that mean for a statute like the POSCO (2012) operating in a society as stratified as India’s, where the same law that failed while girls were assaulted in a state shelter has been deployed swiftly against adolescents whose consensual relationships offend their parents’ sense of caste and propriety? Importantly, how can child sexuality be viewed through the Foucault-Rubin lens within POCSO framework?
From Lapcourt to Muzaffarpur: The Apparatus and Its Intention
In 1867, a farm hand of limited means, passed from the mayor to the gendarmes, to the judge, and finally to medical experts who inspected him for signs of degenerescence, was acquitted of any crime and institutionalized for life for obtaining a “few caresses” from a little girl. He was not punished so much as produced, a specimen to be classified and administered indefinitely by an apparatus that found him with total efficiency. To my understanding, this apparatus operates not through simple prohibition but through the normalizing judgment, producing the deviant as a knowable and administrable subject. Smart argues that the legal regulation of childhood sexuality is never simply about protecting children but about managing social reproduction through the child’s body. Franke notes that law’s construction of the child as permanently pre-sexual is itself a regulatory fiction serving the state’s interest in governing adolescent sexuality as a manageable threshold.
In India, the girls in the Balika Grih were already inside the apparatus under the POCSO (2012) yet their abuse went unacted upon for over a month because their abuser was embedded within the very institutional infrastructure the apparatus operated through. In Unnao, the apparatus moved against the victim’s family rather than her rapist, arresting her father until he died in custody while Sengar remained free for thirteen months. Pratiksha Baxi has rightly argued that the credibility of a complainant before Indian courts is deeply inflected by the class and institutional positioning of both parties, so that the evidentiary apparatus reproduces rather than disrupts the hierarchies within which abuse occurred, and Menon has observed that the expansion of criminal law around sexual violence consistently strengthens punitive machinery while leaving structural conditions of vulnerability undisturbed. This is where Foucault reaches his ceiling, as he can only give us the machinery and it is precisely this silence that renders it complacent in the system.
Thinking Sex, Thinking India: Rubin’s Erotic Hierarchy and the Politics of Child Protection
Rubin’s argument is that Western societies organize sexuality into a rigid hierarchy of value, with marital, reproductive, heterosexual conduct at its apex and those whose eroticism crosses generational lines at its absolute bottom, subjected to the most intense forms of legal persecution, social stigma, and institutional violence. Rubin observes that this hierarchy does not distribute its scrutiny according to the harm caused but according to the social position of those whose conduct falls under examination, so that the apparatus of child protection has historically been the most reliable vehicle for the persecution of the powerless while the powerful navigate it on structurally different terms. The child is not simply a rights-bearing subject requiring protection but a politically potent symbol whose invocation reliably produces what she calls “erotic hysteria”, a regulatory frenzy structurally incapable of distinguishing genuine predatory abuse from the consensual intimacies of adolescence.
Her argument becomes extremely powerful in the Indian context, where this dynamic is visible with particular clarity in the operation of POCSO, which has been deployed with considerable frequency against adolescent consensual relationships across caste and religious lines, where the complainant is typically not the minor herself but her family, using the statute’s strict liability framework to dissolve relationships of which they disapprove. The same statute that failed the girls in Muzaffarpur for a month activates within days when a Hindu family objects to their daughter’s relationship with a Muslim boy. I believe Rubin would find it structurally inevitable, a direct consequence of a legal framework that collapses all contact across that boundary into a single undifferentiated category of harm regardless of the circumstances that produced it.
Indian State and the Child: POCSO’s Complicity
The deepest problem with POCSO is not what it prohibits but what it assumes. The statute proceeds from the premise that childhood and sexuality are categorically incompatible, that any contact across the generational boundary constitutes harm regardless of the circumstances producing it, and that the apparatus assembled to enforce this premise will distribute its attention according to the severity of the harm rather than the social position of those involved. Foucault’s apparatus explains the machinery, the courts, the mandatory reporting obligations, the evidentiary procedures, all generating knowledge about child sexuality while claiming only to protect it. Rubin explains who the machinery finds. Her “erotic hierarchy” predicts that an apparatus organized around the categorical protection of children will activate swiftly when invoked by parents disciplining consensual adolescent relationships across caste lines and move with structural inertia when the abuser is institutionally embedded within the apparatus itself, as Thakur was in Muzaffarpur and Sengar was in the political infrastructure of Uttar Pradesh. What both Foucault and Rubin together compel us to recognize is that child sexuality is a discursive and political construction that the law produces, names, and administers according to the social anxieties of the moment. The child’s body becomes the terrain on which contests over caste, class, institutional authority, and social reproduction are fought out under the morally unimpeachable banner of harm prevention. What is at stake in every POCSO prosecution is therefore not only the protection of a child but the reproduction of a particular social order, one that Kalpana Kannabiran has described as the intersection of Brahminical patriarchy and state power, operating through the legal management of female sexuality under the guise of protection. This finds support in Flavia Agnes’ research, documenting empirically how rape law reform in India has consistently served the interests of dominant caste families in controlling the sexual autonomy of young women rather than addressing the structural conditions of sexual violence against them.
Conclusion: Foucault’s Apparatus and Rubin’s Politics
Foucault and Rubin are Western theorists writing from Western societies, and the limits of that positioning are real. But as Ratna Kapur has argued, the postcolonial condition does not render Western critical frameworks inapplicable so much as it demands that they be read intersectionally attentive to the ways in which colonial histories of regulating native sexuality, Brahminical structures of caste purity. I have reservations about the furthest reach of Rubin’s argument, particularly its tendency to generate a skepticism towards child protection so thoroughgoing that the genuine suffering of Muzaffarpur risks dissolving into a critique of the apparatus that failed to prevent it. But I understand where she comes from, viewing the law’s selective sympathies. To read them together, then, is not to choose between the machinery and its victims but to hold both in view simultaneously, using Foucault to ask how the apparatus produces the subjects it claims to protect, and using Rubin to ask which subjects it was never designed to protect at all. What Foucault and Rubin together illuminate is the structural grammar through which some bodies are made legible to the apparatus and others are written out of it entirely. The Law Commission’s proposals for a graduated consent framework and the High Courts’ hesitant exercise of inherent jurisdiction to quash consensual adolescent prosecutions represent the apparatus catching a glimpse of its own reflection, though whether that produces reform or merely more sophisticated forms of the same administration remains an open question.
Vasatika Saraswat is a fourth-year law student at Jindal Global Law School, Sonipat.
