Introduction:
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to comprehensively address child sexual abuse in India. Despite various provisions under the Indian Penal Code (IPC), there was no specific legislation for crimes against children. This article evaluates the historical background, key provisions, judicial interpretations, procedural mechanisms, international comparisons, and practical challenges of the POCSO Act. It also offers suggestions to strengthen child protection mechanisms in India. POCSO is gender-neutral, recognizes all children below 18 years as eligible for protection, and provides for child-friendly procedures in investigation and trial. It covers penetrative and non-penetrative assault, harassment, and pornography involving children.
Child sexual abuse is a grave concern, transcending social, economic, and cultural boundaries. In India, a staggering 53% of children report having faced some form of sexual abuse. The aftermath of such abuse manifests in psychological, emotional, and social disturbances. Recognizing these challenges, India enacted the POCSO Act in 2012, which introduced child-friendly procedures and widened the scope of punishable acts.
Before POCSO, child sexual abuse cases were handled under IPC Sections 375 (rape), 354 (outraging the modesty of a woman), and 377 (unnatural offences), which were limited in scope and not child-specific. The lack of clarity in defining child abuse, coupled with inadequate sensitivity during investigations and trials, necessitated the need for a dedicated legislation. The UN Convention on the Rights of the Child, ratified by India, emphasized the need for child-centric protection mechanisms.
Objectives of the Act:
- Protection of children below 18 years from sexual harassment, sexual assault and pornography
- Provide comprehensive definitions of sexual abuse.
- Establish Special Courts for speedy trials.
- Incorporate child-friendly mechanisms during investigation and trial.
Alakh Alok Srivastava vs. Union of India, that the objective of the POCSO Act is to protect the child from many aspects so that he/she does not feel a sense of discomfort or fear or is reminded of the horrified experience and further there has to be a child friendly atmosphere.
Salient features of POCSO Act, 2012:
POCSO Act helps eradicate evils against children; hence it is important to go through its features:
- Gender Neutrality: The POCSO Act 2012 regards the best interests and welfare of both male and female child to ensure the healthy physical, emotional, intellectual and social development of the child.
- Defines different forms of sexual abuse: The POCSO Act 2012 defines different forms of sexual assault to be aggraved under certain circumstances, such as when the abused child is mentally ill or the abuse is committed by the person in a position of trust like the police officer, teacher, doctor or a family member.
- Stringent punishment against child trafficking: People who traffic children for sexual purposes are punishable under the provisions of POCSO Act 2012. The Act prescribes the stringent punishment according to the gravity of the offence with a maximum punishment of lifelong imprisonment and fine.
- Covers child pornography: POCSO Act 2012 includes visual depiction of sexual conduct with a child through video, digital, photograph or computer generated image which might be indistinguishable from an actual child but, appears to depict a child.
5. Avoid re-victimization of a child: Adequate provisions are made to avoid re-victimization of the child at the hands of the judicial system. The Act assigns a policeman to protect a child during the investigation process.
Key Provisions of the POCSO Act:
Section 3 & 4: Defines and penalizes penetrative sexual assault.
Section 5 & 6: Covers aggravated penetrative assault by persons in authority.
Section 7 & 8: Relates to non-penetrative sexual assault.
Section 9 & 10: Deals with aggravated forms of non-penetrative assault.
Section 11 & 12: Defines and punishes sexual harassment.
Section 13-15: Criminalizes use of children for pornographic purposes.
Section 19: Mandates reporting of offences and penalizes failure to do so.
Implementation of POCSO Act 2012:
The POCSO Act came into force on November 14, 2012 and it was specifically formulated to deal with various offences related to child sexual abuse and child pornography. The Act includes 46 provisions. It increases the scope of reporting offences against children which were not included under the Indian Penal Code (IPC). The POCSO Act, 2012 provides procedures for recording the statement of a child by the court and police in a child friendly manner.
2019 Amendment in the Act:
- The 2019 Amendment provided a definition for the term “child pornography”. It defined child pornography as a visual depiction of some sexually explicit conduct that involves a child. The term has been very widely defined, to include not just any photograph or video, but also any computer generated image of the child, which represents and is not distinguishable from the child.
- The 2019 Amendment provided for a separate punishment for the offence of penetrative sexual assault, if the same is committed on a child below 16 years of age. Consequently, if any person is found guilty of this offence, the term of imprisonment would be a minimum of 20 years, extendable to imprisonment for life. Here, imprisonment for life refers to imprisonment for the remaining natural life of such accused.
- A very noteworthy aspect about the 2019 Amendment to the POCSO Act, is that it incorporated death penalty as a punishment for the offence of aggravated penetrative sexual assault. Accordingly, if any person is found guilty of aggravated penetrative sexual assault, he may be punished with rigorous imprisonment for a minimum term of 20 years, which is extendable to imprisonment for life, or death.
- The amendment also provides that the fine payable under Section 4(1) and 6(1) of the POCSO Act, would be reasonable. Further, it would be paid to the victim to meet the medical and rehabilitation expenses.
- As per the 2019 amendment, aggravated sexual assault also includes persuasion/ inducement/ enticement / coercion to a child for the purpose of administration of drug or hormone, intending that the child attain early sexual maturity.
Vulnerability and Magnitude in India:
Child Sexual Abuse affects both boys and girls across rural and urban settings. Children with disabilities, LGBTQ+ identities, and those from marginalized communities are more vulnerable. Most perpetrators are known to the victim, making reporting difficult.India, home to over 42% of children, has alarming statistics. Under reporting remains high due to social stigma, familial pressure, and distrust in the system. The 2007 MWCD report highlighted that every second child faces some form of abuse.
Land Marks Cases:
- Independent Thought v. Union of India (2017) 10 SCC 800 :
This case analyzed if penetration by the man with his wife who was below the legal age constitutes rape provided in Section 375 of the Indian Penal Code (IPC) but with exception 2 that permits sexual intercourse ‘with his wife’ if she was over 15 years. The Honorable Supreme Court upheld the view that having sexual intercourse with a minor wife, that is wife below the age of eighteen years, amounted to rape and therefore declared the exception ultra-vires the Constitution. The judgment upheld that, per the POCSO Act, any individual under 18 years of age is a “child”, regardless of marital status. Even within marriage, is punishable as rape under the IPC, in harmony with the POCSO act mandate.
- Satish v. State of Maharshtra (2021) SCC Online SC 673 :
The highlight of the judgement was a definition of “sexual assault” by the bench of the Bombay High Court which insisted that for there to be “sexual assault” as defined under POCSO, there must be “skin-to-skin contact”, of course the judgement was heavily criticized. The Hon’ble Supreme Court of India has overturned the judgment of the Bombay High Court and clarified that “sexual intent” is the essence of the crime of sexual assault regardless of the act, which has been committed. This judgment reaffirmed the provisions contained in POCSO Act and gave effect to the legislation’s statute mandate and it also supported the provision to qualify any physical contact made with a sexual motive under Section 7 of the POCSO Act as a sexual assault.
- Rajat Bansal v. Union of India (2023) SCC Online SC 492 :
This case sought to sue in court for a faster trial process of the POCSO Act because of stretched time and constrained facilities.The Supreme court directed the Union Government to established additional fast-track courts and allocate resources specifically for POCSO cases, aiming to resolve procedural delays. The judgment reaffirmed the rights of victims to timely justice under Article 21 of the Constitution and highlighted the necessity of procedural efficacy in POCSO trials.
Conclusion:
Despite various assertions to the contrary, the legal framework aimed at protecting women and children continues to reflect elements of gender inequality, particularly through the persistence of child marriage and the sexual exploitation of married women. It is unjustifiable to risk the well-being of countless minors under the guise of preserving cultural traditions and patriarchal norms in marital relationships. The State bears a constitutional obligation to enact and enforce laws that shield women from sexual violence within marriage and uphold their right to live with dignity. Presently, both substantive and procedural laws remain deeply biased against married minors. All instances of sexual offences against children, regardless of their marital status, should fall within the purview of the POCSO Act, 2012. Although the Indian judiciary has taken commendable steps to advance the rights of women and children, significant progress is still necessary.
Contributed by: Sangram Singh Rathore (Intern)