16 JUNE 2022
Protection Of Children From Sexual Offences (POCSO) Act, 2012
by Jai Chauhan: O.P. Jindal Global Law School, Sonipat
Introduction
The POCSO Act, 2012, came into force on November 14th, 2012. The act emerged from the bill that was introduced in the parliament in 2011 and on May 22nd, 2012, it was passed in the parliament. Later Ammendents were introduced in this act, making it more comprehensive, resulting in several improvements in it.
It is enacted to protect the children from a slew of sexual assault, sexual harassment, pornography, etc, it not only aims at restricting the above acts in words but also provides the children a mechanism that; is very child-friendly to file a complaint, also speedy trial courts a set up for such cases. In total it contains 9chapters which encompass 46 sections in it.
The term ‘children’ in the act, defines anyone, regardless of sex, who is below the age of 18. It covers sexual offenses which are non-penetrative and also the penetrative assaults, harassment, and pornography are covered in this act.
The act “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.”
To prevent misuse of the law, the law contains punishments for false complaints and false information with malicious intent. The recording of abuse is mandatory under this Act. The police must register a First Information Report (FIR) in all cases of child abuse. A child’s statement can be recorded at the child’s residence or a place of their choice and should be preferably done by a female police officer, not below the rank of sub-inspector.
Timeline
The timeline underlining the several amendments brought in the act and rules are as follows:
| Year | Action Taken |
| 2011 | The bill is introduced in the parliament |
| May 22nd, 2012 | The bill is passed in the parliament |
| November 14th, 2012 | The Act came into force |
| 2019 | A bill is introduced in the parliament to bring amendments to the existing laws. |
| 2019 | The amendment is brought into the current legislation, making it more comprehensive, and widening the scope and ambit of the provisions. |
| 2020 | A new set of rules is released by the ministry, also the rules released by the government in 2012 were repealed. |
Amendments
| Year | Amendment brought |
| 2019 | The central government brings several changes to the act, making the punishment mentioned in the act. Which enhanced the ambit of the punishments. |
| 2020 | The government also brought changes to the rules prescribed earlier in 2012, it also repealed the 2012 rules. |
Punishments:
- 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 the 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 a 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 a 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 a child below 16 years, not less than 20 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, to share or transmit child pornography – Fine of not less than Rs 5,000 in the event of second ora subsequent offense, 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 reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description: Up to three years of imprisonment, or with fine, or both.
- Any person, who stores or possesses pornographic material in any form involving a child for the commercial purpose shall be punished on the first conviction: Not less than three years of imprisonment which may extend to five years; or with a fine or with both. Second or subsequent conviction: not less than five years and up to seven years and also fine.
Death Penalty in POCSO Act:
The punishment of the death penalty was introduced in the amendment act of 2019. In the act, it noted that; according to a report of the National Crime Records Bureau for the year 2016, it indicated“an increase in the number of cases registered under the said Act from 44.7 percent. in 2013 over 2012 and 178.6 percent. in 2014 over 2013 and no decline in the number of cases thereafter.”
After considering the two Supreme Court cases, which will be discussed in the next section, the government felt a strong need to take strict measures to fight the rising number of sexual abuses in the country. Therefore Section 6 of the 2012 act was substituted by introducing ‘the death penalty with a new section vide Clause 4 of the Bill,2019 which reads as follows:
“Sec. 6(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous 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 the natural life of that person, and shall also be liable to fine, or with death.”
Supreme Court’s take on POCSO Act:
“The Supreme Court, in the matter of Machhi Singh vs. the State of Punjab. held that when the community feels that; for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case.
It may do so in the rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.
The same analogy has been reiterated by the Supreme Court in the matter of Devender Pal Singh vs. State (NCT of Delhi) wherein it was held that when the collective conscience of the community is so shocked, the court must award the death sentence.”
Taking these two cases into concern the death penalty was introduced in the 2019 (Amendment) act.
Recently, the supreme court quashed the Bombay High court’s order which gave an order that touching the vagina, penis, anus, or breast of a child or making the child touch these parts of any person with sexual intent or doing “any other act with sexual intent which involves physical contact without penetration” does not constitutes sexual assault. This was given by the court because there was no skin-to-skin contact in that case, but the Supreme Court overruled the order of the high court making a provision that even if there is no skin-to-skin contact present. This ruling was provided in the Attorney General for India V. Satish.
Loopholes:
- No clarification on what documents are required for proving the age of the victim/accused: Court interpreted Rule 12 of the Juvenile Justice Rules to extend to children who are victims. This regulation only accepts the child’s birth certificate, school certificate, or matriculation certificate. Children who can only present alternative documents like a passport must undertake a bone ossification test. This test can provide a rough guess of the age.
- Gender: Because the accused’s pronoun is “he,” only a male can be booked for the offenses under; the applicable provisions of the POCSO Act. Even though, unlike rape, a victim under the POCSO Act can be any child regardless of gender. It is false to assert that; females do not expose children to coercive sexual assault.
Conclusion:
A law, that; could pave the path to making the nation safe and secure for the children, who are at high risk of sexual offenses in different places by different people, was much demanded and also required for a nation like India.
POCSO Act satisfies; the requirement in several manners but somehow it is still developing and bringing reforms in the law, setting up the fast track courts, the act mandates that; the investigation in the cases is to be completed in two months (from the date of registration of FIR) and trial in six months, which helps the victim in the procedure to claim justice. In last, we can conclude that; POCSO Act is a success for India, but it still requires some changes to make it more effective.
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