Analysis of Protection of Children from Sexual Offences Act, 2012(POCSO)
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was championed by the Ministry of Women and Child Development to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent provisions. The Act has been enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trail of such offences and related matters and incidents. The Act was amended in 2019, to make provisions for enhancement of punishments for various offences to deter the perpetrators and ensure safety, security and dignified childhood for a child.
LANDMARK CASES UNDER POCSO ACT 2012:
- Jarnail Singh vs. State of Haryana (Criminal Appeal No. 1209 of 2010)- In this case, the appellant was accused of kidnapping and raping the daughter of Savitri Devi while she was sleeping. The Supreme Court of India, in this case, observed that the procedure which is used to determine the age of a child who conflicts with the law as per the Juvenile Justice (Care and Protection of Children) Rules, 2007, can be followed in cases falling under the POCSO Act, 2012 as well. Applying this rule, the Court convicted the appellant, Jarnail Singh.
- Sakshi vs. Union of India on 26 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 abused by insertion of objects into the vagina or insertion of the male organ into body parts such as anus or mouth. The Supreme Court rejected the plea & dismissed the public interest litigation. But it issued valuable guidelines for trial of rape and sexual abuse which concern children. These are known as the Sakshi guidelines:
- A screen or an arrangement where victim or witnesses do not see the body or face of the accused.
- Questions put in cross examination on behalf of accused, if they relate directly to the incident, must be given in writing to the Presiding Officer of the court who may put them to the victim/witnessed in a language that is clear and not embarrassing.
- Victims of child abuse or rape should be allowed sufficient breaks as and when required during the testimony.
- Sangeeta Punekar vs State of Maharashtra and Others on 6 December 2001- The experiences faced by social workers while handling the Prem Sagar case resulted in a writ petition to ensure that institutions which house young children are not allowed to function without necessary Licenses. In the Prem Sagar case, Rev. Alfred who was the director of the ‘Prem Sagar’ institution had attempted to rape some children. Despite the FIR being lodged against Rev. Alfred, it was found that he continued to stay in the institution and abused the girls. The judgement reinforces some of the provisions of the Juvenile Justice Act that are essential to protect children who are housed in Institutions.
SALIENT FEATURES OF THE ACT AND ITS AMENDMENT:
- Victim’s identity to be kept confidential, Section 23 of the POCSO Act specifies the media procedure and imposes the duty to maintain the victim’s identity unless the Special Court has allowed the disclosure.
- 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 stipulates that such steps must be taken which makes the investigation process as child friendly as possible and the case is disposed of within one year from the date of reporting of offence.
- The Act defines a child as any person below 18 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 abuse is committed by a person in position of trust or authority.
- Adequate provisions are made to avoid re-victimization of the child at the hands of the judicial system. The Act assigns a policeman in the role of child protector during the investigation process.
- It defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which includes photographs, videos, digital, or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child
- The Act provides for the establishment of Special Courts for the trial of such offences and matters related to it.
- Under Section 45 of the Act, the power to make rules lies with the central government.
- To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority, both being the statutory authority.
OFFENCES AND POCSO ACT PUNISHMENT- The POCSO Act Punishment is more stringent, and after the amendment act of 2019, the punishment is even more severe. The POCSO Act punishment is maximum with rigorous life term imprisonment, with a fine.
- Section 3 of the POCSO ACT: Penetrative Sexual Assault- Section 3 of the POCSO Act 2012 includes penetration of any object or body part into any private part or mouth of the child. It also includes manipulating anybody part of the child or making the child penetrate anyone else’s body or even the body of the offender.
- Section 4 of the POCSO Act 2012 provides punishment for Penetrative Sexual Assault- In the case of penetrative sexual assault, an offender gets punished with imprisonment of a term not less than ten years, and that may extend to life imprisonment. Such minimum punishment may extend to 20 years, extending to life imprisonment when the child is below the age of 16 years.
- Section 5 of the POCSO Act: Penetrative Assault becomes Aggravated Penetrative Sexual Assault- As per Section 5 of the POCSO Act 2012, a penetrative Sexual Assault become an Aggravated Sexual Assault in the following situation:
- When the offender or the abuser is any person who is in the authority or position of trust of the victim.
- There is a blood relation between the offender and the victim.
- The victim becomes pregnant.
- The child suffers injury.
POCSO ACT Punishment provides under this section a minimum punishment of 10 years that may extend to life imprisonment with a fine.
- Section 7 of the POCSO Act: Offence of Sexual Assault- As per Section 7 of the POCSO Act 2012, when an abuser fondles the child’s private part or vice versa, he is said to have committed sexual assault. The sexual offence is touch-based and includes the sexual intent of the offender. POCSO Act Punishment for an offence under section 7, provided under section 8, is minimum imprisonment of 3 years that may extend to 5 years with a fine.
- Section 9 of the POCSO Act: Sexual Offence become Aggravated- According to Section 9 of the POCSO Act 2012, an act becomes aggravated or not depending upon the relationship between victim and offender. It also relies on the nature of the assault and the impact of the assault.
- Section 10 incorporates POCSO Act punishment for an offence committed under section 9 of the act. According to this section, an offence under section 9 is punishable with an imprisonment of any description for a term that is not less than five years and may extend to 7 years with a fine.
- Section 11 of the POCSO ACT: Sexual Harassment- According to Section 11 of the POCSO Act, when an offender shows or shares any sort of sexual content to the victim through a message or any other form of communication, he is said to have committed an offence of sexual harassment. It also includes vulgar or abusive gestures. The offence of sexual harassment is not touch-based and sexual intent is required for such offence. POCSO Act punishment for an offence under section 11 of the act gets provided under section 12. According to section 12 of the act, the punishment includes imprisonment for a maximum of three years with a fine.
- Section 13 of the POCSO ACT: Using child for pornographic purpose- Section 13 of the POCSO Act states the child’s activities for pornographic activities. If a child gets used to any form of media for sexual gratification, then the person using the child is considered an offender for this section. Sexual gratification means and includes:
- Representation of sexual organs of a child.
- Using a child for actual or simulated sexual that could be with or without penetration.
- Representation of a child indecently or obscenely.
- POCSO Act punishment for such actions is provided under Section 14. Section 14 of the Act provides the punishment given to an offender in different situations for using a child for pornographic purposes. The punishment is as follows:
- POCSO Act Punishment for an act committed under section 13: the punishment provided under section 14(1) is imprisonment of either description for a term which may extend to five years with a fine. If a person is a repeated offender, such imprisonment may extend to seven years with a fine.
- POCSO Act Punishment for the child used for pornographic activity and commits an offence under section 3 of the POCSO Act. In such a situation, the punishment provided by the act is minimum imprisonment of two years that may extend to life imprisonment with a fine.
- POCSO Act Punishment for the child used for pornographic purposes. An offence gets committed under section 5; then, the accused is punishable with rigorous imprisonment for life and a fine.
- POCSO Act Punishment for the child used for pornographic purposes and committed under section 7. The accused is punishable with any form of imprisonment for a minimum of six years, which might extend to eight years and a fine.
- POCSO Act Punishment for the child used for pornographic purposes and committed under section 9. The accused is punishable with any form of imprisonment for a minimum of eight years, which may extend to ten years and a fine.
Also, storing any pornographic material that involves a child is a punishable offence under POCSO ACT, 2012. POCSO ACT Punishment for such offence can be imprisonment of any description for a term that may extend to three years with a fine or with both.
- Section 16 of the POCSO ACT: Abetment to commit an offence- As per section 16 of the POCSO Act 2012, a person is said to be committed an abetment in the following cases:
- If the offender instigates any person to do any offence.
- If the offender is involved with any other person or persons in a conspiracy of doing an offence,
- If the offender intentionally aids any act or illegal omission.
For all such acts of abetment and attempt to commit an offence, punishment is provided under section 17 and section 18 of the POCSO Act. The POCSO ACT under section 17 provides punishment for the offence of abetment and attempt to commit a crime under section 18. Abetment gets punished with the same punishment as the offender. In case of an attempt to commit an offence, the person gets punished with half of the punishment given to the offender.
PUNISHMENT FOR FALSE REPORTING CASES:
POCSO Act Punishment is provided for reporting a false case related to child sexual abuse. Section 22 of the POCSO Act 2012 provides for such punishment.
According to section 22 of the POCSO Act 2012, if any person makes a false complaint or provides information that is not true related to any offence mentioned under sections 3, 5, 7 or 9with an intention to defame, threaten, or humiliate such person, then he has committed a crime under section 22. Such a person is liable for imprisonment, which may extend to six months with a fine or with both.
However, if a person provides false information about a crime against a child and knows that the information is incorrect but victimize the child by providing such information, in this case, the POCSO Act Punishment is a maximum of one year with a fine or with both.
Under this section, if a child makes false information, there is no punishment under POCSO Act Punishments.
GLOBAL LAWS TO PREVENT CHILDREN FROM SEXUAL HARASSMENT:
The United Nations Convention on the Rights of the Child (CRC) is an international treaty that legally obligates nations to protect children’s rights.
Articles 34 and 35 of the CRC require states to protect children from all forms of sexual exploitation and sexual abuse. This includes outlawing the coercion of a child to perform sexual acts, the prostitution of children, and the exploitation of children in creating pornography. States are also required to prevent the abduction, sale, or trafficking of children.
POCSO ACT, 2012 or Protection of Child from Sexual Offences Act, 2012, is an act that protects a child from being exploited sexually. It covers major sexual offences related to the child. The POCSO Act Punishments are more stringent, and the law is more severe than any other legislation. However, this act also set aside the principle of Innocent till proven guilty, as, under this act, a person is seen as a culprit and not as normal. As this act is related to the child and protects the child from being sexually exploited, the act has recognized all the major acts as offences. The POCSO act Punishment can be up to life imprisonment for the offender according to the severity of the offence. The POCSO Act, 2012 is exhaustive legislation which aims at covering all the aspects of child sexual abuse. Amendment has been made in the Act via the Protection of Children from Sexual Offences (Amendment) Act, 2019, with which the punishments for the offences have been made more stringent.
Sexual offence scars a child’s psyche, resulting in cognitive impairment, mental agony, and depression. Undoubtedly, POCSO Act encapsulates the provisions for protecting children from sexual assault and child pornography. After the amendment in the year 2019, the punishment for sexual offenses against children has become more stringent. Still, India has a long way to go to curb sexual offenses against children.
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ARTICLE BY CHANDANA SHEKAR