POCSO Act: Safeguarding the Interests of Children

The Government has enacted a specific law, The Protection of Children from Sexual Offences (POCSO) Act, 2012, to deal with incidents of child sexual abuse.;

The POCSO Act 2012 is a detailed law protecting children from sexual assault, sexual harassment, and pornography while also protecting the child’s best interest at each stage of the proceedings process by integrating child-friendly processes for reporting, recording evidence, investigation, and speedy trial of offences through assigned Special Courts. The Act and the Rules enacted immediately went into effect on November 14, 2012.

What is Child Sexual Abuse?

Any sexual activity with a child for whom permission is not or cannot be acquired gets classified as child sexual abuse. It encompasses any sexual contact, regardless of age, including the use of force or the threat of force, any sexual contact between an adult and a kid, irrespective of whether deceit gets used or the child recognises the sexual nature of the behaviour. If a big age, development, or size disparity renders the younger child incapable of giving informed permission, sexual contact between an older and younger child can be harmful.

Child Sexual Abuse in India

The increasing crime against children in India forced the Government to make a law against the sexual offences made against the children. The Government of India enacted the POCSO Act (Protection of Children from Sexual Offences Act) in November 2012. The act got formulated to deal with the crimes faced by the children like sexual assault, sexual harassment and pornography.

The major highlight of the act is that it contains additional 46 provisions that were not covered under the Indian Penal Code. It extended the scope of reporting offences against children.

What are the myths about Child Sexual Abuse?

These are 10 common myths about child sexual abuse:

1. The majority of child sex offenders are strangers.
2. People who sexually abuse their children pose no risk to other children.
3. By acting seductively, children ‘welcome’ sexual abuse.
4. Incest and sexual assault are only found in low-income homes.
5. Some children prefer sexual attention from adults, which is not harmful.
6. Because the child did not object or try to stop the sexual assault, he or she bears some of the culpability.
7. Children and teenagers make up stories about sexual assault.
8. Children can misinterpret and falsely accuse adults of sexual abuse.
9. Sexual assault is not damaging; the uproar created by adults, child protective agencies, and legal authorities is the issue.
10. A youngster must be lying if they confess sexual assault and subsequently change their testimony.

What are the effects of Child Sexual Abuse?

The majority of the children suffer in silence and do not speak about it. Child sexual abuse can lead to feelings of shame, remorse, and rage.

1. Illness is a constant.
2. Constant terror.
3. No longer able to put trust in anyone.
4. They get shunned by society.
5. No one was able to escape the tragic catastrophe.
6. The future relationship is still uncertain.

Meaning of POCSO

POCSO is the acronym for ‘Protection of Children against Sexual Offences’. POCSO caters for child-friendly measures, methods and support to guarantee minimum trauma upon the child during the judicial process.

What is POCSO Act, 2012?

POCSO Act Full Form: Protection of Children from Sexual Offences Act. POCSO Act is a comprehensive Act formulated by the Government of India to safeguard the interests of children to combat child sexual abuse and exploitation effectively. The act states mechanisms for reporting, recording evidence, investigation, and speedy crimes against children through special courts. The act embraces children below the age of eighteen. The act also defines various modes of sexual abuse like penetrative sexual attack, non-penetrative attack, sexual attack and pornography.

The act has mentioned aggravating situations that are considered critical cases.

• When the abused child is mentally not stable
• A person perpetrates sexual abuse in a position of trust, like sexual abuse by a family member, police officer or a teacher.
• Persons involved in child trafficking business for sexual purposes get punished under this act.

Need for POCSO Act 2012

Even though various statutes got enacted, there are still some gaps in the law that leave provisions for child sexual abuse unaddressed. Sexual offences were not adequately addressed by the Indian Penal Code (IPC), the Information Technology Act of 2000, and the Juvenile Justice Act of 2000. There are no special rules or legislation to deal with male child sexual abuse.

It specifies age in Section 375, which defines rape, and Section 376 deals with rape committed against a female. Section 377 of the IPC is the other law dealing with unnatural activities that get invoked. This section does not include forcible intercourse with a boy, which is a form of rape, and the IPC is silent in this case. Publication and transmission of pornography over the internet are illegal under Section 67 of the Information Technology Act of 2000.

Definitions under the POCSO Act

Sexual Assault

Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

Sexual Harassment

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

1. utters any word or makes any sound, or makes any gesture or exhibits any object or part of the body with the intention that such word or sound shall get heard, or the child shall see such gesture or object or part of the body; or
2. makes a child exhibit his body or any part of his body so as such person or any other person sees it; or
3. shows an object to a child in any form or media for pornographic purposes; or
4. repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
5. 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
6. entices a child for pornographic purposes or gives gratification, therefore.

Child Pornography Meaning

Child pornography means any visual depiction of sexually explicit conduct involving a child that includes

• photograph
• video
• digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child

What are the features of the POCSO Act 2012?

The following are the salient features of the POCSO Act 2012:

1. It is gender impartial.
2. It makes reporting of abuse a legal requirement.
3. It mandates the documenting of sexual assaults.
4. It is a comprehensive list of all known sexual offences against minors.
5. It ensures that kids get protected during the legal process.

Purpose of the POCSO Act 2012

The purposes of the POCSO Act 2012 are as follows:

1. Protection of minors under the age of 18 from sexual harassment, assault, and pornography.
2. A child’s best interests get protected at several phases, such as reporting, recording of evidence, investigation, and trial of offences.
3. As soon as a complaint is filed with the Special Juvenile Police Unit, relief and rehabilitation are provided.
4. Special courts get established for the quick resolution of sexual cases.

What are the provisions of the POCSO Act 2012?

1. Within 24 hours after receiving a report, police officers must bring every case to the attention of the Child Welfare Committee.
2. To avoid appearing frightening, they must wear simple attire while recording the minor’s statement.
3. The statement must get written down in a location chosen by the kid and witnessed by someone he or she trusts.
4. Only a female doctor may conduct the medico-legal examination to gather forensic evidence in the presence of a person whom the minor trusts.
5. Special courts got established to handle expedited, in-camera trials. These courts must make sure that:
   • The minor must not get exposed to the accused during the recording of evidence.
   • The minor’s identity is not revealed during the inquiry or prosecution.
   • The kid is not required to repeat his or her testimony in court, and he or she can deliver the testimony through a video link.
   • The case gets resolved within one year of the date the offence got reported.
   • The defence asks all questions through the judge and is not permitted to ask them aggressively.
   • An interpreter, translator, special educator, or other professional is present in court to assist the minor.
   • A minor who has been sexually abused receives compensation for medical treatment and rehabilitation.

Power of Court and Procedure Followed

1. Female children should be cared for by a female doctor.
2. Special courts hold trials behind closed doors to protect the children’s identity.
3. No youngster should be kept in a police station at night.
4. The child’s statement will get recorded as spoken by the child.
5. The child should not be called to testify regularly.

POCSO Act Punishments

The POCSO Act, 2012 provides severe punishments for offences against children, including rigorous imprisonment for life and a fine. Below are the major punishments prescribed under the act.

1. Punishment for penetrative sexual assault (section 3):
   • Whoever commits a penetrative sexual assault shall be punished with imprisonment of not less than ten years but may extend to imprisonment for life. He shall also be liable to fine.
   • Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term not less than twenty years but may extend to imprisonment for life. He shall also be liable to fine.
2. Punishment for aggravated penetrative sexual assault (section 5):
   • Whoever commits aggravated penetrative sexual assault shall get punished with rigorous imprisonment for a term not less than twenty years, but which may extend to imprisonment for life. He shall also be liable to fine or with death.
3. Punishment for sexual assault (section 7): Whoever commits a sexual assault shall be punished with imprisonment of either description for a term that shall not be less than three years but may extend to five years and shall also be liable to fine.
4. Punishment for aggravated sexual assault (section 9): Whoever commits an aggravated sexual assault shall get punished with imprisonment of a term that shall not be less than five years but may extend to seven years and shall also be liable to fine.
5. Punishment for sexual harassment (section 12): Whoever commits sexual harassment upon a child shall get punished with imprisonment of either description for a term which may extend to three years and shall also be liable to a fine.
6. Use of child for a pornographic purpose (Section 14): Whoever uses a child (children) for pornographic purposes shall get punished with imprisonment for a term that shall not be less than five years. He shall also be liable to fine. In the event of second or subsequent conviction, he may be awarded imprisonment for a term which shall not be less than seven years. He is also liable to a fine.

The changes in the POCSO Act

POCSO Act, 2019 (Amendment Bill)

To battle the rising cases of sexual abuse against children, the union government of India has brought amendments to strengthen the POCSO act. The Parliament enacted the Protection of Children from Sexual Offences (Amendment) Bill, 2019, after the bill was passed by both houses unanimously.;

The bill has included the death penalty for aggravating sexual crimes against children besides stringent punishments for crimes against minors. The bill also includes new offences such as ‘child pornography’ and widens the scope of aggravated sexual assault.

The changes in the POCSO act also contain harsh punishments like imprisonment and fine to curb child pornography.

Offences	POCSO Act 2012	POCSO Act 2019
Using child for pornographic purposes Using children for Pornographic purposes resulting	max 5 years	Min 5 years
In penetrative sexual assault	min 10 yrs Max life imprisonment	min 10 yrs (children below 16 20 yrs) max life imprisonment
Pornographic purposes resulting In aggregative penetrative sexual assault	life imprisonment	min 20yrs max life imprisonment
Pornographic purposes using	Min 6yrs	Min 3yrs
children resulting in sexual assault	Max 8yrs	Max 5yrs
Pornographic purposes using	Min 8yrs	Min 5yrs
children resulting in sexual assault	Max 10yrs	Max 7yrs

Storage of pornographic material: The Act castigates the storage of pornographic material for commercial purposes with a punishment of up to three years, a fine, or both.

The punishment can be imprisonment between three to five years, a fine, or both. The Bill also adds two other crimes to store pornographic material involving children. These include:

• failing to destroy, or delete, or report pornographic material involving a child, and
• transmitting, propagating or administering such material except to report it.

Relation with IPC

Where an act constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), then, the offender found guilty of such offence shall be liable to punishment under this Act or the Indian Penal Code as provides for punishment which is more significant in degree.

“Ramu vs the State Of U.P. on 18 December 2020”

The appellant committed the offence of rape to a victim aged about eight years. The offence of rape includes sexual assault by penetration of the penis. It includes inserting any object or part of the body, not being the penis, into the vagina of the victim.

He got convicted for the offence under Section 376 IPC and Section 4 POCSO Act, 2012. He got sentenced to 14 years imprisonment with a fine of Rs.10,000/- for an offence under Section 376 IPC and the same punishment under Section 4 of the POCSO Act.

The appeal court held that “If the offence of sexual assault is punishable in the relevant provision of the POCSO Act and of I.P.C., like 376 I.P.C., Trial Court gets bound to punish the accused either in the relevant provision of POCSO Act or under I.P.C. which is greater in degree.”

National Commission for Protection of Child rights

The National Commission for Protection of Child Rights (NCPCR) got established in 2007 under Parliament. National Commission for Protection of Child Rights [NCPCR] The NCPCR is a body that functions towards achieving a child rights-centric approach in all India’s procedures and administrative mechanisms. It functions under the central government’s Ministry of Women & Child Development.

Significance of POCSO act in India

Offences against children are increasing day by day in our country. Statistics show that registered cases against children rose from 32,608 to 47,325 in 2019. It clearly depicts that there is a 45% increase in two years. The importance of the new bill is that it will have a huge impact on predators and serial offenders. There is a hope that the bill will act as a deterrent to reduce sexual offences against children. The act will protect children in vulnerable positions and mentally not stable.

The significant part of the bill is that it values gender neutrality. The act speaks about the offenders irrespective of male, female, trans male or trans female or any gender. The bill also mentions the death penalty to heinous crimes and stringent punishments. The bill will refrain society from doing criminal acts.

Case Study related to the POCSO Act 2012

Libnus v. state of Maharashtra

The Nagpur bench ruled that holding minors’ hands and opening pants zips do not constitute sexual assault under POCSO, 2012, but rather sexual harassment under Section 534A (i) of IPC.

The Court observed that a ‘physical contact with sexual intent without penetration’ is an essential factor in the concept of sexual assault.’ Because there was no real touching of the private regions of the body in the case, the Bombay High Court assessed whether the act fell within the third path of the definition, which includes ‘any other act with a sexual purpose that involves physical contact without penetration.’

Satish Ragde v. state of Maharashtra

The Bombay High Court acquitted the accused of sexual assault under Sections 7 and 8 of the POCSO Act of 2012. The accused groped a kid, but the court acquitted him due to a lack of particular evidence that could show if the top got removed or whether the hand got inserted inside the top. The court determined that the accused’s alleged behaviour did not meet the definition of sexual assault since the accused had no evidence of physical contact.

As a result, the offender was convicted under sections 342 and 354 of the IPC,1860 (insulting a woman’s modesty) and specified a one-year minimum punishment while it may have been extended to a five-year harsh punishment. This ruling sparked outrage, and the Supreme Court delayed the decision.

Conclusion

Even though the Parliament enacted the POCSO Act 2012, which went into effect on November 14, 2012, this specific law to protect minors from sexual assaults remains an unimplemented statute that most people are unaware of.

The POCSO Act 2012 looks at a support system for children in the criminal justice system by creating a comfortable environment using current equipment such as the Child Welfare Committee and the commission.;

The primary goal of the POCSO Act is to protect children from sexual assaults, abuse, and other types of sexual offences. However, because the majority of rural India is still entirely unaware of such an Act, which primarily aims to stop sexual violence against children, any instance of a sexual offence committed against a child often results in child marriage, exclusion of the family from society, or complete silence about such heinous crime committed against the child.;

Upon receipt of a complaint or the police report itself, the Special Court may take cognisance of any offence under this act. The court must provide a child-friendly environment, including allowing family members or guardians to be present in court.