The Protection of Children from Sexual Offences Act (POCSO Act)

Ministry of Women and Child Development 

About POSCO Act:

• The POCSO act was enacted in 2012 (Click here for pdf copy) especially to protect children aged less than 18 from sexual assault sexual abuse, sexual harassment and pornography.
• The act mandates that investigation in the cases is to be completed in two months (from the date of registration of FIR) and trial in six months.
• The Act defines a child as any person below eighteen years of age.
• POCSO states a sexual assault is to be considered aggravated if-
  • The abused child is mentally ill or,
  • When the abuse is committed by 
    • A member of the armed forces or Security forces
    • A public servant 
    • A person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital – whether Government or private.
• It prescribes rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also fine as punishment for aggravated penetrative sexual assault.
• It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system.
• The Act also makes it mandatory to report such cases.
  • It makes it the legal duty of a person aware of the offence to report the sexual abuse.
  • In case he fails to do so, the person can be punished with six months imprisonment or fine.
• It also prescribes punishment to the people who traffic children for sexual purposes.
• The Act also provides for punishment against false complaints or untrue information.
• The act was amended in 2019.
• Aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012 is the equivalent provision for aggravated rape. 
• A person can be charged with this offence in certain aggravating circumstances, such as if the rape occurs within a relationship of trust or authority, or if it leads to pregnancy, among others. 
• Under POCSO, the consent of a person under the age of 18 is irrelevant, regardless of the nature and circumstance of the sexual interaction, or the particulars of the person with whom it takes place. This means that any sex with a minor is rape.

What is this case about?

• The Bench acquitted a man found guilty of assault on the grounds that he touched the victim’s limbs and breasts only over her clothes and there was no skin-to-skin contact between them.
• This judgment is likely to set a dangerous precedent & finally the apex court stayed the acquittal.
• In Vishaka v. State of Rajasthan (1997), the Supreme Court held that the offence relating to modesty of woman cannot be treated insignificant.
• In Pappu v. State of Chhattisgarh (2015), though the High Court, acquitted the accused under Section 354 of the IPC as the offence was found lacking in use of criminal force or assault.
• But it convicted him for sexual harassment under Section 354A which requires physical contact and advances as a necessary element.

Salient features of the Act and its amendment

• The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
• The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
• It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• It defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child;’

Punishments for Offences covered in the Act

• Penetrative Sexual Assault (Section 3) on a child – Not less than ten years which may extend to imprisonment for life, and fine (Section 4). Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty 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.
• Aggravated Penetrative Sexual Assault (Section 5) — Not less than twenty years which may extend to imprisonment for life, and fine (Section 6)
• Sexual Assault (Section 7) i.e. sexual contact without penetration — Not less than three years which may extend to five years, and fine (Section 8)
• Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five years which may extend to seven years, and fine (Section 10)
• Sexual Harassment of the Child (Section 11) — Three years and fine (Section 12)
• Use of Child for Pornographic Purposes (Section 14) — Not less than Five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)
• Use of child for pornographic purposes resulting in penetrative sexual assault : Not less than 10 years (in case of child below 16 years, not less than 20 years)
• Use of child for pornographic purposes resulting in aggravated penetrative sexual assault : Not less than 20 years and fine
• Use of child for pornographic purposes resulting in sexual assault : Not less than three years which may extend upto five years
• Use of child for pornographic purposes resulting in aggravated sexual assault : Not less than five years which may extend to seven years
• Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography – Fine of not less than Rs 5,000; in the event of second of subsequent offence, fine not less than Rs 10,000.
• Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description : Upto three years of imprisonment, or with fine, or both.
• Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction : Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and upto seven years and also fine.

General Principles of Act:

The Protection of Children from Sexual Offences Act, 2012 mentions 12 key principles which are to be followed by anyone, including the State Governments, the Child Welfare Committee,

the Police, the Special Courts, NGOs or any other professional present during the trial and assisting the child during the trial. These include:

1. Right to life and survival – A child must be shielded from any kind of physical, psychological, mental and emotional abuse and neglect
2. Best interests of the child – The primary consideration must be the harmonious development of the child
3. Right to be treated with dignity and compassion – Child victims should be treated in a caring and sensitive manner throughout the justice process
4. Right to be protected from discrimination – The justice process must be transparent and just; irrespective of the child’s cultural, religious, linguistic or social orientation
5. Right to special preventive measures – It suggests, that victimised children are more likely to get abused again, thus, preventive measures and training must be given to them for self-protection
6. Right to be informed – The child victim or witness must be well informed of the legal proceedings
7. Right to be heard and to express views and concerns – Every child has the right to be heard in respect of matters affecting him/her
8. Right to effective assistance – financial, legal, counselling, health, social and educational services, physical and psychological recovery services and other services necessary for the child‟s healing must be provided
9. Right to Privacy – The child‟s privacy and identity must be protected at all stages of the pre-trial and trial process
10. Right to be protected from hardship during the justice process – Secondary victimisation or hardships for a child during the justice procedure must be minimised
11. Right to safety – A child victim must be protected before, during and after the justice process
12. Right to compensation – The child victim may be awarded compensation for his/her relief and rehabilitation

Punishment for offences for using child for pornographic purposes

The Protection of Children from Sexual Offences (Amendment) Bill, 2019

• The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in Lok Sabha by the Minister of State for Women and Child Development, Mr. Virendra Kumar on January 8, 2019. The Bill amends the Protection of Children from Sexual Offences Act, 2012.  The Act seeks to protect children from offences such as sexual assault, sexual harassment, and pornography.
   
• Penetrative sexual assault: Under the Act, a person commits “penetrative sexual assault” if he: (i) penetrates his penis into the vagina, mouth, urethra or anus of a child, or (ii) makes a child do the same, or (iii) inserts any other object into the child’s body, or (iv) applies his mouth to a child’s body parts.  The punishment for such offence is imprisonment between seven years to life, and a fine.  The Bill increases the minimum punishment from seven years to ten years.  It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, along with a fine. 
   
• Aggravated penetrative sexual assault: The Act defines certain actions as “aggravated penetrative sexual assault”.  These include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.  It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others.  The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.  These include: (i) assault resulting in the death of child, and (ii) assault committed during a natural calamity.
   
• Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine. The Bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
   
• Aggravated sexual assault: Under the Act, “sexual assault” includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration.  “Aggravated sexual assault” includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others.  The Bill adds two more offences to the definition of aggravated sexual assault.  These include: (i) assault committed during a natural calamity, and (ii) administrating any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.
   
• Pornographic purposes: Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault.
• Storage of pornographic material: The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both.  The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both.  In addition, the Bill adds two other offences for storage of pornographic material involving children.  These include: (i) failing to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting, propagating, or administering such material except for the purpose of reporting it.

Why this act is necessary:

India has one of the largest populations of children in the world – Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and also mandated given India’s status as a signatory to the UN Convention on the Rights of the Child. Before the implementation of the POCSO Act,  the Goa Children’s Act, 2003, was the only specific piece of child abuse legislation.

Child sexual abuse was prosecuted under the following sections of the Indian Penal Code:

• I.P.C. (1860) 375- Rape
• I.P.C. (1860) 354- Outraging the modesty of a woman
• I.P.C. (1860) 377- Unnatural offences

However, such a measure had drawbacks since the IPC could not effectively protect the child due to various loopholes like:

• IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
• In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act and is not designed to criminalise sexual abuse of children.

You can find many articles on  ACTS AND AMENDMENTS (part of GS II) and ROLE OF WOMEN (part of GS I)  in our website. Go through these articles share with your friends and post your views in comment section.