The POCSO Act: An Analysis

Table of Contents

Introduction

The Protection of Children from Sexual Offences (POCSO) Act 2021, was enforced on 14^th November 2012 along with the rules framed thereunder. The POCSO Act, 2012 is an extensive law made to give protection to children from offences of sexual assault, sexual harassment, and pornography, while safeguarding the interests of the child at every stage of the judicial process by employing child-friendly mechanisms for recording of evidence, investigation and speedy trial off offences through allotted Special courts.

The said act defines a child as any person below the age of eighteen years of age, and defines various forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and hold a sexual assault to be “aggravated” under some circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person who is in a position of trust or authority of the child, like a family member, police officer, doctor, etc.

Historically, child sexual abuse(CSA) has been a serious issue in India, largely neglected by the public and by the criminal justice system. Until recently, child sexual abuse was not recognized as a criminal offence, rape was considered the main, if not the only, specific sexual offence against children as recognized by the law in India. In absence of robust legislation, a range of sexual offences against children like sexual assault ( not amounting to rape), harassment, and exploitation for pornography were never legally punishable. In the last few years, with a drastic increase in the number of sexual offences against children, Non- Governmental Organizations, and the Ministry of Women and Child Development have actively collaborated to break the silence over this issue and generated substantial and popular momentum among people all over the country. This led to the passage of a significant law known as the Protection of Children from Sexual Offences( POCSO) Act in 2012 which pledged to protect children from sexual offences committed on them.

Provisions and Sanctions of the POCSO Act

The POCSO Act was implemented along with certain rules mentioned in the act to be followed. All the provisions included in the POCSO Act are gender-neutral unlike rape under IPC, where the victim is always a female and the accused is always a male.

The other provisions included in the act are as follows:

Mandatory reporting of sexual offences: This imposes a legal duty on the person who knows that a child has been sexually abused to report the offence; failing to do this the person may be punished with six months imprisonment and/or a fine.
Police to act as child protectors: The police are expected to act spontaneously on receiving a report of sexual abuse of a child by making urgent arrangements for the care and protection of the child, such as engaging in active medical treatment of the child and placing the child in shelter homes, if the need arise. The police are also required to inform the Child Welfare Committee (CWC) about the issue within 24 hours of receiving the report, so that the CWC may take appropriate action as required to ensure the safety and protection of the child.
Medical examination of the child without much inconvenience: The act lays down a provision for the medical examination of the child while keeping in mind that there is as little distress caused to the child as possible. The Medical examination is to be conducted in presence of a parent or any other person who the child trusts, and in the case of a female child, by a female doctor.
Establishing Special Courts: The said act provides for Special courts that conduct trials in-camera and without revealing the identity of the child. The investigation is to be carried out in a child-friendly manner. Hence, the child has the provision of having a parent or any person whom he/she trusts at the time of testifying and can call for assistance from an interpreter, special educator, or any other professional while giving the evidence. To avert causing inconvenience to the child, the child isn’t called repeatedly to testify in the courtroom, rather a video link is sent to the child so that the child can testify virtually as well. Above all, the act stipulates that the case must be disposed of within one year from the date the offence is reported.
Collaboration of various agencies of the state: The act recognizes almost every known form of sexual abuse against children as punishable offences while involving different agencies of the state, such as the police, judiciary, and child protection machinery to collaborate for securing justice for the sexually abused child. The act provides means not only to report and punish those who abuse but also prove an effective deterrent in curbing the occurrences of such offences.
Active participation of the state government: The POCSO Act is to be implemented with the active participation of the state government. Under Section 39 of the POCSO Act, the State Government is required to frame and lay guidelines for the use of the persons including non-governmental organizations, professionals, and experts trained in or knowing Psychology, social work, physical health, mental health, and child development to aid the children in pre-trial and trial stages. The Model guidelines are formulated by the Central Government, based on which the State Governments can frame more comprehensible and specific rules as per their needs.
Periodic training and Orientation Programme: The Central Government and each State government shall provide periodic training including orientation programs, sensitization workshops, and refresher courses to any or all persons coming in contact with kids, to sensitize them about child safety and protection.

Sanctions under the POCSO Act

The offences of sexual assault against children are extremely heinous and barbaric. Hence, the punishments meted out for committing this kind of offence are also stringent. The sanction imposed on people sexually abusing kids are:

Penetrative sexual assault (Section 3): Any kind of penetration, to an extent that he penetrates his penis into the vagina, mouth, anus, or urethra of a child or makes a child do so with him or any other person. Punishment: A Person committing this offence is punished with imprisonment of not less than 10 years which may extend to imprisonment for life. Penetrative sexual assault on a child below 16 years shall be punished with imprisonment for a term not less than 20 years, however extending to imprisonment for life.
Aggravated Penetrative Sexual Assault (Section 5): Any assault committed by a person of trust or authority. One of the offences that will be considered as aggravated penetrative sexual assault is the offence of making a child strip or parade naked in public. Punishment: Imprisonment of not less than 10 years which may extend to rigorous life imprisonment and also liable for fine (Section 6).
Sexual assault: “Whoever with the sexual intent touches the vagina, penis, anus or makes the child touch the vagina, penis, anus of such person or any other person or does any act with sexual intent which involves physical contact without penetration is known as sexual assault. (Section 7) Punishment: Whoever, commits sexual assault, shall be punished with imprisonment of either description of a term which shall not be less than 3 years, however, it may extend to 5 years and also be liable for fine. (Section 8)
Aggravated sexual assault (Section 9): Whoever commits this type of offence is punishable with the imprisonment of not less than 5 years which may extend to 7 years and fine.
Sexual Harassment of the child (Section 11): Sexual harassment is a behavior characterized by making inappropriate and unwelcome sexual comments or physical advances. Punishment: The person is punished with an imprisonment of almost 3 years accompanied by a fine. (Section 12)
Use of child for a pornographic purpose (Section 14): A person who uses a child for any kind of pornographic purpose is sanctioned with imprisonment of five years along with a fine which may later exceed to 7 years and a fine in the event of a subsequent conviction. (Section 14(1)).

Other punishments related to child pornography

Whoever stores or possess pornographic material in any form involving a child, but doesn’t delete or destroy or report about the material to the designated authority, to share or transmit child pornography shall be fined for not less than Rs.5000 and in the event of subsequent conviction shall be fined for not less than Rs.10,000.
Whoever stores or possesses child pornographic material for commercial purposes shall be imprisoned for a term not less than 3 years which may extend to 5 years; or with a fine or with both. On the second conviction, imprisonment term increases to not less than 5 years which may later exceed up to 7 years, and also fine.
Whoever stores or possess material showcasing child pornography for transmitting, propagating, distributing, or displaying the material in any manner except for the purpose to report as prescribed or for use of evidence in a court shall be sanctioned with imprisonment of either description of imprisonment for 3years, or with a fine, or both.

Landmark judgments that laid the foundation of the POCSO Act

Ghanashyam Mishra vs.The State (27 November 1956): Ghanashyam, the accused, was a teacher in the same school as the 10 -year old girl. At noon, when the girl was passing from the side of the school premises, the accused called her inside the schoolroom and raped her. After feeling considerable pain, the girl tried to raise an alarm. However, the accused offered her two anna pieces to pacify her and asked her to not reveal his identity to anyone. The Orissa High Court held that the offence committed by the accused was aggravating in nature. The accused took advantage of his position and authority by inducing the girl to come inside the room and commit such an awful act, the repercussions of the same might even ruin the future of the young girl. To ensure that appropriate justice is done to the girl, the court ordered to increase the punishment of the accused to seven years along with a liability to pay a fine to the girl and her family.
Gurucharan Singh vs. the State of Haryana (13^th September 1972): A girl under 16 years was induced to go to a particular house and from there to the accused house who forcibly took her to a field outside the village and committed rape on her. Gurucharan Singh was held liable under sections 366 and 376 of the IPC. There was no presence of any marks on the girl’s body confirming rape. However, the court held that the mere absence of marks on the body doesn’t absolve the accused from being punished as the girl was under 16 years. Moreover, it was held that the girl cannot be considered to be an accomplice of the act i.e she didn’t give her consent to the accused of committing the offence.
Gorakh Daji Ghadge vs. the Sstate of Maharashtra (6^th March 1980): In this case, the father had been accused of raping his 13 -year old daughter at home. He asked his daughter to come into the sitting room of their house where he committed a penetrative sexual assault amounting to rape on his daughter. On medical examination, there was no evidence of seminal emission but the Bombay High Court held that seminal emission is not necessary to determine rape. The accused was provided with stringent punishment as the victim was his daughter. The judgment of the court reads: “Crimes in which women are victims needs to be severely dealt with and in extreme cases such as this where the accused, who is the father of the victim girl has thought it fit to deflower his daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice.”
Imratlal vs. State of Madhya Pradesh(27^th January 1986): Chinngo was a child girl living in a village named Dhamantuk in Madhya Pradesh. During the daytime of 27^th January 1986, she was watching her wheat field. The appellant’s field was near the girl’s field. The appellant invited Chinngo to play a game with him and she declined to play. On this, the appellant dragged Chinnago and threw her on the ground, and brutally raped her. As a result, she suffered severe injuries causing her to bleed profusely. The Madhya Pradesh High Court said that the accused can be convicted solely based on the evidence given by the victim if it is credible enough to accept it. The judgment also noted that there doesn’t need to be traces of semen in the girl’s private part to prove the offence of rape. It also included that when the offence of rape is proved on a girl of tender age, then the punishment also is severe.
Delhi Domestic Working Women’s Forum vs. Union of India and others (14^th December 1989): Six young domestic workers were travelling on a train from Ranchi to Delhi where they were brutally molested, harassed, assaulted and, raped by a few army personnel. Taking into consideration the trauma that the girls might have gone through, the judgment delineated several guidelines to be followed when dealing with sexual offences:
- The complaint of sexual assault cases shall be provided with adequate legal representation.
- Legal aid to be provided at the police station
- The police should duly inform the victim of her right to legal representation before any questions are asked to her
- An advocate shall be appointed for the victim at the earliest
- The Anonymity of the rape victim shall be maintained, as far as necessary
- Adequate and fair financial assistance to be given to the rape victims
- The compensation for victims should be awarded by the court irrespective of whether the accused was convicted or not.
The State of Punjab vs Gurmit Singh and others(16^th January 1996): A 16 year old girl after completing her matriculation paper, was walking back to her uncle’s house. While walking, suddenly a car stopped near her and one of the accused grabbed her and threw her in the car. Later, she was gang-raped by 3 people, and the next day they dropped her at the same spot from where she had been abducted. The trial court acquitted the person accused of raping the girl by giving a reason that the girl was having a loose character who had invented the story of her rape to justify spending a night out of the house. However, Supreme Court was extremely critical of the judgment passed by the trial court and said that the decision of the trial court was unreasonable and perverse. The court held that the testimony of the victim is considered to be true until it becomes necessary to corroborate the statement made by the victim. Hence, the court should not have any difficulty in acting based on the testimony of the victim of sexual assault to convict the accused.
Sakshi vs Union of India (26^th May 2004): The NGO Sakshi filed a writ petition in Public Interest to broaden the definition of rape in cases involving children where the child is subjected to sexual assault by insertion of objects into the vagina or insertion of male organ into body parts such as anus or mouth. The Supreme Court rejected the plea and dismissed the Public Interest Litigation but issued certain guidelines for the trial of rape and sexual abuse which concern children. These are known as Sakshi guidelines:
- A screen or arrangement where the victims and the witness are not able to see the face of the accused.
- Questions put in cross-examination on behalf of the accused, if they are related directly to the incident, must be given in writing to the presiding officer of the court who may put them to the victim/witness in a language that is not very embarrassing and ambiguous.
- Sufficient breaks to be given to the victims of child abuse or rape when required during the testimony.

Are the offences committed under POCSO Act bailable?

All the offences falling under the Protection of Children from Sexual Offences Act,2012 (POCSO) are non-bailable and cognizable. Since sexual offences are committed against children, it is considered grave and atrocious offences. The Bombay High Court in 2016 had delivered a judgment in regards to bail in the POCSO Act which mentioned that “accused alleged of committing the crime of trafficking, who acted in accordance to section 34 of the Indian Penal Code leading to the commission of grave offences like penetrative sexual assault and harassment under the POCSO Act, then in these circumstances the accused doesn’t deserve to be released on bail.” The case involved an applicant who was alleged to be an agent for trafficking a minor girl for a certain sum of money under the garb of marriage to another man with whom the minor girl had two children. The girl was sexually abused, harassed, and later abandoned by the man. Later, the applicant sought bail. However, on scrutinizing all the facts and circumstances of the case it was held that the offences of sexual abuse, trafficking, etc come under the ambit of non-bailable offences under the POCSO Act.

Grounds of bail under the POCSO Act

The POCSO Act functions on the mandate ‘guilty until proven innocent’ i.e. the accused is considered to be guilty until he/she proves otherwise. Though all the offences under the POCSO Act are non-bailable, there is an exceptional clause that lays down certain ways in which the accused may be granted bail if proven that he/she wasn’t guilty. So there may be chances of bail if the following points are proved:

The POCSO Act can be effective only if a police complaint is lodged reporting a child sexual abuse case.
Where the nature of the case is of such a nature that it will result in an adverse effect on society.
Chances of bail depend on the very facts of the case. It will see whether prima-facie it reveals the accused or not.
If the accused can prove and counter the evidence presented by the complainant against the accused.
The court might check if there is any past criminal record of the accused or not.

In November 2020, Chhattisgarh High Court granted bail to the accused under the POCSO Act on the grounds of non-objection by the victim/complainant. The facts of the case are such that the father had lodged an FIR (First Information Report) informing that his daughter left the house in the afternoon and did not return till evening. After some time, her father received a message from his daughter informing him that she won’t be returning home in the night. The girl admitted that she was in love with the applicant and they were in a relationship for 6-7 months before the incident. She had gone with him voluntarily and stayed in the applicant’s maternal uncle’s house. In her diary, she had written that she had sexual intercourse with the applicant multiple times. Despite that, the applicant was arrested for the offence under sections 363,366 and 376 of the IPC and section 4,6 of the POCSO Act. In response to this, the applicant filed for bail before the court. The court observed that the girl is less than 16 years of age, however, considering the affair and lack of objection from the girl and her father’s side during the hearing of the bail application, the bail was granted.

Is the POCSO Act retrospective in nature?

The POCSO Act was passed in 2012 therefore all the offenders committing sexual offences on children after 14^th November 2012 will be held liable under the POCSO Act. However, offences committed before 14^th November 2012 will not fall under the POCSO Act, hence, even the offenders won’t be held liable under the POCSO Act. This means that the POCSO Act cannot be applied retrospectively. The Protection of Children from Sexual Offences Act,2012 was amended in 2019. According to the bill, the punishment for sexual assault was increased from a minimum of 20 years which may extend up to the death penalty for the accused. Capital punishment was introduced in the bill. Keeping in mind the intent of the Parliament, retrospective effect be given to the provisions though the provision is prospective in nature. Secondly, such a stringent punishment would send a message to society and hence people would refrain from committing such crimes against children.

However, the Supreme Court rightly turned down the argument of any retrospective application of the amendment of the POCSO Act simply by observing that no retrospective effect can be awarded when the punishment is to be given prospectively and logically so. To strengthen the argument, the court mentioned article 20(1) of the Constitution of India. Article 20(1) safeguards the interests of the individual and prevents conviction and sentence under an ex post facto law. In other words, a person cannot be punished with a sentence more than what he would have been subjected to for an act done before the act was passed. Therefore, recently the Supreme Court in the State of Telangana vs Polepaka Praveen dismissed the special leave petition filed by the state seeking the death penalty for the accused. The Supreme Court refused to award the death penalty to a convict, who committed rape and murder of a nine-year-old child in Telangana almost 2 months before the amendment of the POCSO Act by the Parliament that prescribed extreme sentence for a heinous crime, saying that retrospective effect to the law cannot be granted.

Courts dealing with the POCSO Act

The Department of Justice has recently implemented 1023 Fast track special courts(FTSCs) out of which 389 courts are exclusively allotted for resolving matters related to POCSO Act and rape cases. As informed by the Department of Justice, 338 exclusive POCSO courts have become functional in 26 States/UTs by May 2021 which disposed of 50,484 pending cases till May 2021.

Special Courts

According to section 28(1) of the POCSO Act, it provides for the establishment of a special court to ensure a speedy trial of the case. While establishing a Special Court following points must be kept in mind:
To provide a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court designate for each district, a Court of a session to be a Special Court to try the offence under the act.
While trying an offence under the POCSO Act, a Special Court shall also try an offence with which the accused may be charged under the Code of Criminal Procedure,1973 during the same trial.
The Special Court established shall have the jurisdiction to try offences under section 67B of the Information Technology Act,2000 in so far as it relates to the publication or transmission of sexually explicit material portraying children in a manner that facilitates or hints towards abuse of children online.
When a person is prosecuted under sections 3,5,7 and section 9 of the POCSO Act, the Special Court shall presume that the person is guilty of abetting, committing, or attempting to commit an offence, as the case may be unless it proved otherwise.
The Special Court presumes that the accused had a culpable mental state of mind unless the contrary is proved. The non-existence of a proper mental state serves as a defence for the accused to prove that he had no mental state in regards to the act with which he is charged. However, the Special Court accepts the defence when it is proved beyond a reasonable doubt.
During the trial, the Special Court shall be deemed to be a Court of Session, and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.
The State Government shall appoint a Public Prosecutor for every Special Court for conducting cases under the provisions of the act.
A person qualifies to become a Public Prosecutor only when he/she has been in practice for not less than seven years as an advocate.

Procedure and Power of the Special Court

A Special Court has the power to take cognizance of a matter based on a police report or complaint of facts that constitute such an offence, even if the accused is not committed for the trial.

The Special Prosecutor, or as the case may be, the counsel appearing for the accused, while recording for cross-examination or re-examination of the child shall inform about the questions to the Special Court before posing the same to the child.

The Special Court has the right to provide frequent breaks to a child during the trial.

The Special Court shall create a child-friendly atmosphere in the Court by allowing a parent, guardian, or someone the child trusts to be with them during the trial.

The Special Court shall ensure that the child is not called repeatedly to testify in the court.

The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that the dignity of the child is maintained at all times during the trial.

The Special Court must see to that the identity of the child is not disclosed anytime during the trial.

In the appropriate cases, the Special Court may, in addition to the punishment, ~~may~~ ask the accused to pay compensation to the child for any kind of physical or mental trauma or immediate child rehabilitation.

Fast Track Courts

Apart from the Special Courts, the Department of Justice implemented the ‘Fast Track Courts Scheme’ in 2021 for expeditious disposal of cases of rape and the Protection of Children from Sexual Offences Act. Fast Track Courts address various kinds of issues related to crimes against women, child trafficking under the POCSO act, and many other offences. An increase in offences against women and children has shaken the nation’s conscience. To prevent such crimes, various provisions and acts have been amended like The Evidence Act, The Criminal Procedure Code, The POCSO Act, etc. The motive behind amending the laws is to create deterrence against such crimes to ensure the safety of children and women. However, this step won’t generate much difference if the trial is not completed within the timeframe. Hence, to complete the trial in a given timeframe and see to that deliverance of justiceis ensured to the victims expeditiously, the setting up of the fast-track Courts is proposed. The POCSO fast-track courts are those set by the government to speedily complete trials of sexual offences cases within six months of the registration of the FIR. However, in recent times, the setting up of fast-track courts for matters related to women and the POCSO act has not proved to be effective as the number of pending cases is huge and there are no efforts been taken to reduce the time taken to deliver justice to the victims.

Is compromise possible under the POCSO Act?

No, compromise under the POCSO Act isn’t possible as the offences included in the POCSO Act are non-compoundable. Non- compoundable offences are more serious offences and a compromise for these offences cannot be accepted. In the case of Arif Khan vs The State of Madhya Pradesh, the High Court of Madhya Pradesh quashed the petition for a proposal to compromise thus holding the accused liable for the punishment for his offence. The facts of the case are as such that the victim aged 17 years had gone to her sister’s house. The accused, who was the nephew of her sister, used to visit the victim’s house and convinced her that he would marry her. On that promise, physical relations developed between them and when the victim insisted to marry, the accused refused. On this, an FIR was lodged against the accused. When the case was in the Sessions Court, the victim and accused resolved the matter among themselves by involving elders, and the accused married the victim. Now that the victim didn’t want to continue the case, both the parties amicably compromised the matter. The High Court, however, quashed the proceedings as it was based on compromise. Similarly, in Maruthupandi Vs The State, the Madras High Court dismissed an appeal made by Maruthupandi against the trial court order which sentenced him to undergo 10 months rigorous imprisonment despite him marrying the victim. The court said that falling in love is not an offence but having sexual intercourse with a minor child is an offence. Based on the false promise of marriage, the accused has sexual intercourse with the child and later refused to marry her. Upon receiving punishment, the accused agreed to compound the offence by marrying the girl, which will not take away the offence. The evidence showed that the accused committed the offence and only to escape from the clutches of law, after the trial, he came forward with a compromise proposal that cannot be accepted and encouraged in such a heinous crime as it will defeat the purpose of the POCSO Act.

Agencies involved in protecting children from Sexual Offences

Many times, parents are afraid to come out in open and talk about the sexual abuse that their child faced as there is a social stigma attached to it, the pressure of interacting with the police, and the issue of whom to contact in these cases often arise. Moreover, the thought that the child will have to go through the same trauma during investigation bothers the parents so they consider it fine to let go of the matter. According to the data given by the National Crime Record Bureau, a total of 109 children were sexually abused everyday in India in 2018, which showed a 22% jump in cases from the previous year. Hence, to make the process slightly easy, the POCSO Act mentioned the Child Welfare Committee (CWC) to provide protection and care to the children.

Child Welfare Committee(CWC)

The Child Welfare Committee comes into play when the police or Special Juvenile Police Unit(SJPU) indicates that the child is in the need of care and protection. The decision to remove the child from the custody of his family and place them in the children’s shelter/homes within three days rests in the hand of the CWC. However, the CWC must inform the custodian or guardian of the child about the process and consider the preference of the child. The CWC checks the need of the child to stay with the family in case of age, disability, etc. The CWC also has the right to provide support to the children during the trial/investigation. The support provided can be from an organization or an individual working in the field of child rights or is associated with any shelter designed to house children.

Some of the guidelines laid down for Child Welfare Committees under the POCSO Act are:

The CWC has to take cognizance of the children produced by Police/ SJPU/ NGO or by any person under the provisions of the Juvenile Justice Act and the POCSO Act.
The CWC must probe the possibilities of a sexual offence against the child produced before them.
The CWC must create a child-friendly atmosphere while questioning the children inspiring confidence in the child.
The child should not be pressurized to answer any question and a person from an NGO associated with the CWC should always be present. In case a family member is not an abuser, then the person whom the child trusts may be present with the child. During the process, uttermost care should be taken to ensure that there should be no biases that would make the child feel guilty or responsible for the abuse.
The statement of the child must be recorded and the name of the person who interviewed the child should also be on record.
The CWC shall provide a support person within 3 days to the child victim. The CWC has to take into account the willingness and competence of the person designated as a support person.
The CWC shall facilitate the filing of the police complaint and FIR in all cases of sexual violence, exploitation, and abuse of the child victim under the POCSO, relevant sections of IPC, and section 23 of Juvenile Justice Act,2000.
CWC shall avert giving repeated permissions to the police for questioning the child which might increase the trauma and distress experienced by the child.

For more guidelines refer to – https://sje.rajasthan.gov.in/commissions/DCR/PDF/CWC%20on%20POCSO1.pdf

Non Governmental Organizations:

NGOs are a medium through which various people collaborate voluntarily to promote social values, fulfill civic goals, and provide support to people. Child Sexual Abuse is a very sensitive matter that requires a huge amount of attention as well as awareness. The effect of sexual abuse that the children experience at a tender age is concerning. So, it proves to be extremely beneficial for the children when there are NGOs to support them in fighting the battle against child sexual abuse. Some of the NGOs that protect children from sexual offences are Samadhan Abhiyan, Arpan, Aarambh, Foundation for child protection-Muskaan, Rahi Foundation, etc. These NGOs have a lot of common aims like:

Prevention and Psycho-social support to the victims: The main aim of these NGOs is to prevent child sexual abuse and to understand the victim. Along with that, they work towards providing psycho-social support by building appropriate pedagogy for new demographics, school-based child sexual abuse prevention, and intervention programs, providing psychological support to the child and encouraging the child to talk about the experience without any hesitation, etc.

Training and Capacity building of the Stakeholders: To enable other people to replicate and scale the delivery of child sexual abuse prevention and healing services through various mediums like newspapers, magazines, social media, etc. Organizing programs to train people about child rights and how to deal with a child victim seeking help.

Public awareness: They aim to create mass awareness with the help of research and statistics on child sexual abuse and advocate for a systemic level of change at local, national, and international levels. To ensure better dialogue, the NGOs desire to open up to key governmental bodies and other stakeholders to spread their message to the people effectively.

Difference between Juvenile Justice Act, 2015 and the POCSO Act, 2012

The two acts deal with crimes involving underaged children. However, the purpose for which these acts were created differ. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2015. This act aims to focus and change the law in regards to ‘juveniles’ that is children who are supposed and found to be in conflict with the law. This act also ensures that the basic needs of the children are fulfilled through proper care and nourishment, protection, treatment, training, and also by adopting a child-friendly approach. The POCSO Act, on the other hand, is a comprehensive law that protects children from sexual offences, harassment, and pornography. It also lays down certain guidelines for various agencies of the State to support child victims.The Juvenile Justice Act,2015 handles crimes committed by underage children, whereas the POCSO Act deals with sexual offences committed against the children.There are certain key provisions of the Juvenile Justice Act, 2015 like a change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict’ to remove the negative connotation associated with the word ‘juvenile’. It targets to include numerous definitions like orphaned, abandoned, or surrendered children and petty, serious, and heinous offences committed by the children. It seeks to ensure clarity in the functions, powers, and responsibilities of the Juvenile Justice Board (JJB)and Child Welfare Committee(CWC).The POCSO Act, however, seeks to provide speedy and smooth trial of the cases of sexual offences of children by taking into consideration that no inconvenience is caused to the child during reporting, investigation, etc. It lays down specific guidelines for the special courts and child welfare committees to follow while recording testimonies of the children who experienced sexual offences.

Latest Amendments in the POCSO ACT

The recent incidences of child sexual abuse have been demonstrating the nefarious mindset of the abusers who have been inhuman in their approach towards young victims, which is rising in the country. Children have become an easy target because of their tender age, physical vulnerabilities, and inexperience in life and society. The following amendments were made to bring about stringent measures to deter rising child sexual abuse and to provide safety, security, and dignified childhood for the children. The POCSO (Amendment) Act,2019 include:

It increases the minimum punishment from seven years to ten years. In case, a person commits penetrative sexual assault on a child below 16 years then, he will be punishable with imprisonment between 20 years to lifetime, with a fine. The imposition must be reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.[Section 4(1)]
The amendment adds two more grounds under the aggravated penetrative sexual assault definition. It includes ( 1) assault resulting in the death of the child, (2) assault committed during a natural calamity or any such situation of violence. It also increases the punishment for aggravated sexual assault from 10 years to 20 years, and the maximum punishment to the death penalty.(Section 6)
Two new clauses are added to aggravated sexual assault which includes (1) assault committed during a natural calamity (2) administering or helping to administer a hormone or any chemical substance to a child leading to early sexual maturity in the child. The second clause was added by the insertion of a new section. (Section 9)
It defines child pornography as a visual demonstration of sexually explicit conduct involving a child including photographs, video, digital, or computer-generated images indistinguishable from an actual child. The amendment involves two new offences for the storage of pornographic material involving children. These are (1) failure to report, destroy or delete pornographic material involving a child, (2) transmitting, displaying, distributing such material except to report it. It also increases the punishment for such offences. The act punishes the storage of pornographic material for commercial purposes with imprisonment of up to 3 years, or a fine, or both. This amendment bill provides that the punishment can be imprisonment between 3 to 5 years, or a fine, or both.

Apart from the amendments, the Union Government has notified new rules (Protection of Children from Sexual Offences Rules,2020) which enables implementation of new amendments to ensure that the provisions of punishment for child sexual abuse become more stringent.

Conclusion

The Ministry of Women and Child Development had introduced the POCSO Act in 2012 in light of increasing incidents of child sexual abuse. To effectively address the heinous crimes of child sexual abuse, the need for a robust act was felt. The provisions and punishments enlisted in the act proved to deter the abusers from committing sexual offences against children to some extent. One of the main purposes of the POCSO Act is to ensure that the victims get entitled to a speedy trial so that appropriate justice is done to them within a given timeframe. However, there are still many cases that remain unresolved because of the lack of access to speedy trials due to the backlog of the cases in the Special Courts that deal with offences of child sexual abuse. Children have to experience the trauma of the abuse and on top of it, they have to patiently wait for the trial to begin, and sometimes it takes a couple of months or so for the court to take up the cases for trial. To prevent any delay in the trials, more courts must be established all over India to deal with such complaints and there should be a formulation of rules mentioning a timeframe within which the courts would have to settle the issue arising out of offences committed under the POCSO Act,2012. Barring this, abidance and proper implementation of the act can play a critical role in creating awareness and deterrence in society for the offences involving child sexual abuse.

This article is authored by Sakshi Ranadive, student at Government Law College, Mumbai

References

What is the expansion of POCSO Act?

The expansion of POCSO is the Protection of Children from Sexual Offences.

Is a minor's consent a legitimate defence to sexual offences under the POCSO Act?

Consensual sexual intercourse between minors or between a minor and an adult is not accepted under the POCSO Act. The Indian Penal Code further emphasizes that sexual intercourse with or without consent of a woman under the age of 18 years amounts to statutory rape.

Who is eligible to report offences under the POCSO Act?

As per Section 19(1), anybody who knows or suspects that an offence has been committed or is likely to be committed must notify the Special Juvenile Police Unit or the local police. The Act states that children are also required to disclose offences. Yet, they cannot be penalized for failing to disclose an offence.

What is the time limit for doing a medical assessment on a minor victim?

It is the obligation of the police or the Special Juvenile Unit to take the minor for a medical checkup within 24 hours of the incident being notified to the authorities.

If a woman doctor is not present in a hospital, who else is permitted to do the medical examination?

If a Registered Woman Medical Officer is unavailable at the State hospital, a male doctor in the attendance of a female nurse or attendant is permitted to conduct the medical examination.

What is a ‘Special Court’ under the POCSO Act?

A Special Court under the POCSO Act is a Sessions Court that the State Government qualifies as a Special Court in every district to prosecute offences under the Act. The Special Court was formed with the intention of accelerating the prosecution of sexual offences concerning minors.

What are the powers designated to the ‘Special Court’ under the POCSO Act?

The Special Court has all of the powers of a Sessions Court and it must follow the Criminal Procedure Code while trying the offences under the POCSO Act.

Under what instances can the Special Court offer compensation under the POCSO Act and Rules?

Compensation is provided for any bodily or emotional harm that the minor has suffered as a result of the offence. To provide for the minor’s immediate concerns, for instance, immediate medical requirements and for the minor’s rehabilitation.

What precautions should the media follow while disclosing sexual offences against minors?

When reporting about a sexual offence against a minor victim, the media should make sure that the minor’s identity is kept private. Anyone who reveals a minor’s identity without the authorization of the Special Court faces a six-month to one-year jail sentence, a fine, or perhaps both.