Author: Animesh Nagvanshi, Institute of Chartered Financial Analysts of Indian University, Dehradun
Background History/Need for Act
India has one of the largest populations of children in the world – Census data from 2011 show that India has a population of 472 million children below the age of 18 years. Protection to children by the state is guaranteed to Indian citizens by an expensive reading under Article 21 of the Indian Constitution and also mandated given India’s status as a signatory to the UN Convention of the Rights of the POCSO Act. Before the introduction of POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act 2003. Child Abuse was prosecuted under the Sections of Indian Penal Code such as 354 for outraging the modesty of a women, 375 for Rape and 377 for unnatural offences.
Protection of Children from Sexual Offences Act, 2012 (POCSO, 2012) is comprehensive law enacted with the objective of protecting children (below 18 years of age) from slew of sexual offences like sexual assault, sexual harassment and pornography while safeguarding the interest of the child at every stage of the judicial process by introducing a child-friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offences through special courts. The Statue is divided into 9 Chapters and 46 Sections and was presented in Parliament by the Ministry of Women and Child Development. The Act was published in the official gazette on 20th June 2012 but came into force on 14th November 2012.
Salient Features of POCSO Act
Maintaining Confidentiality of the Victim’s Identity
Section 23 of the POCSO Act prohibits disclosure of the Victims Identity in any form of media, except when permitted by special courts established under the act. A violation of this section can attract punishment under the Act, regardless of whether the disclosure is made in good faith.
Child-Friendly investigation and trial
Sections 24, 26, and 33 of the POCSO Act lay down the procedure of investigation and trial which has been formulated keeping in mind the need of a child.https://timesofindia.indiatimes.com/blogs/developing-contemporary-india/five-things-to-know-about-the-pocso-act/
Establishment of Special Courts and Necessary Requisite
Special Courts will be established under Central Scheme (fully Funded by the Centre) in each district across the country that had over a 100 cases of child abuse and sexual assault pending trial under the Protection of Children from Sexual Offence (POCSO) Act.
The Centre would have to appoint trained, sensitized prosecutors and support persons to deal with the POCSO cases
The Supreme Court has also directed the state to ensure there is no delay in Forensic Science laboratories relating to test reports in POCSO cases.
The Supreme Court has found the National Commission for Protection of Child Rights (NCPCR) which is mandated to monitor implementation of Protection of children from sexual offences. https://www.drishtiias.com/daily-updates/daily-news-analysis/special-courts-for-pocso-cases
Punishment under the Act
Section 4 – Punishment for Penetrative Assault
(1) Penetrative Sexual Assault on a Child of 16 to 18 years of Age
Imprisonment of either description for a term which shall not be less than [10 years] but which may extend to imprisonment for life, and also shall be liable to fine.
(2) Penetrative Sexual Assault on a child below 16 years of age Imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
Section 6 - Aggravated Penetrative Sexual Assault
Rigorous Imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and also shall be liable to fine, or with death.
Section 8 – Punishment for Sexual Assault
Imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
Section 10 – Punishment for Aggravated Sexual Assault
Imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
Section 12 – Punishment for Sexual Harassment Imprisonment of either description for a term which may extend to three Years and shall be also liable to fine.
Section 14 – Punishment for using child for pornographic purpose
(1) Use of Child for Pornography
First Conviction imprisonment extending up to 5 years second Or further conviction imprisonment extending up to 7 years and shall be also liable to fine.
(2) Use of child for pornography while committing an offence under Section 3
Minimum Imprisonment of 10 years extending up to Imprisonment for life and shall also be liable to fine.
(3) Use of child for pornography while committing an offence under Section 5
Rigorous Imprisonment for life and shall also be liable to fine.
(4) Use of child for pornographic purpose while committing offence under section 7
Imprisonment to 6 to 8 years and shall also be liable to fine.
(5) Use of child for pornographic purpose while committing offence under Section 9
Imprisonment of 8 to 10 years and shall also be liable to fine.
Section 15- Punishment for storage of pornographic material involving child
(1) Any person who stores who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to discharged authority, as may be prescribed, with an intention to share or transit.
Shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.
(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any matter at any time except for the purpose of reporting.
Imprisonment of either description which may extend to three years or with fine or both.
(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose.
Imprisonment for three years and which may extend to five years or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall be also liable to fine.
Attorney General vs Satish and others
The Special Court had convicted the accused for sexual assault. The accused then challenged its validity in Nagpur Bench of Bombay High Court which expressed that stringer punishment for sexual assault warranted stricter proof and thus Satish was acquitted for sexual assault under Section 8 of POCSO and convicted instead for outraging a women’s modesty, wrongful confinement and Kidnapping under Section 354, 342, of Indian Penal Code. Then the validity was challenged in the hon’ble Supreme court by Attorney general of India, National Commission for women, State of Maharashtra and appellant challenging the orders of High Court. The hon’ble Supreme Court set aside the orders of High Court which held that skin to skin contact is a prerequisite for an offence of sexual assault to be made out under the POCSO Act, 2012 and held accused liable for sexual assault under Section 8 of POCSO and Section 354, 342 and 363 of IPC. As the accused was sentenced for the major offence under Section 8 of POCSO, no separate punishment was imposed upon him for the offence under the IPC.
State of Maharashtra VS Libnus
The Bombay High Court held that the appellant’s Act of holding a five- years old girl’s hand, moving her frock upward with one hand, lowering her pants with another, and unzipping his pants to expose his penis did not fall within the ambit of “any other act” under section 7. The accused was acquitted for aggravated sexual assault, and instead conviction for the lesser offence of sexual harassment under both the POCSO Act and the IPC. The judgement was challenged in hon’ble Supreme Court and the decision was same as in case of Attorney General vs Satish.
Shortcomings of the POCSO ACT, 2012
1 Two finger test violates privacy and dignity – Two -finger test is administered on the victims of Sexual assault while conducting their medical examination. If the vagina of a girl is capable of allowing two fingers to move freely then it is inferred that the victim has been subjected to repeated sexual intercourse. This Act is conducted on the minor girls against whom any offence under the POCSO Act is committed.
2 Silent on Consensual Sexual Activities – In case of Sexual intercourse with consent, one of which is minor, the partner who is not can be prosecuted under the POCSO Act as the consent of a minor is considered relevant under this Act.
Amendment to the POCSO Act
The Protection of Children from Sexual offence (Amendment)Bill, 2019 was passed by both houses of Parliament. The Bill amends the Protection of Children from Sexual Offence Act, 2012.
There have been amendments in Section 4, 6, 9, 14 and 15 of the POCSO which made the punishment more stringent. [Sections have been discussed above].
The Need of the hour is to sensitize the people regarding child abuse so that there is no reluctance in reporting these crimes. The investigating agencies should be well trained and professionals involved in the stages of investigation and trial should be efficient so as to leave any scope of negligence on their part. These imperative steps should be taken so that the cases related to child sexual activity should decrease at a satisfactory rate.