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INTRODUCTION

According to the 2011 All India Census, children make up 39% of the population, however many of them are vulnerable to child sexual abuse (CSA). According to data from the National Crime Records Bureau (NCRB), the rate of crime against children nationwide jumped from 21.1 in 2015 to 28.9 in 2017. Childhood is the formative stage and should be a time of safety, security, and joy, but for some kids, the reality of childhood is very different. Children look to adults to secure their safety and care, yet they frequently fall victim to the abuse known as CSA without even realising it.

They are the “most innocent and vulnerable casualties of exploitation” due to the major obstacles in their way of justice, which include poverty, violence, discrimination, conservative communal structures, and social prejudices. From the moment they are born, they are faced with a variety of difficulties and abused sexually, physically, mentally, and emotionally. Child abuse is a violation of a child’s fundamental rights that has a negative impact on a child’s wellbeing.

The Ministry of Women and Child Development championed the passage of the “Protection of Children from Sexual Offences (POCSO) Act, 2012” to effectively combat the horrendous crimes of child sexual abuse and exploitation through less unclear and more strict legislative requirements. To make the passage of laws protecting children from sexual offences easier, the Protection of Children from Sexual Offences (POCSO) Act of 2012 was put into effect. The gender-neutral POCSO Act encourages victim-friendly prosecution. The provisions of this Act’s abetment provisions also apply to people who traffic children for sexual purposes.

This law protects children against sexual assault, sexual harassment, and pornographic offences and works to protect their best interests throughout the entire legal process. All of this is made possible by adopting a child-friendly reporting, evidence-documentation, investigation, and trial process for offences through designated special courts (POCSO Act, 2012). The legislation defines and penalises six different sexual offences, including penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, sexual assault with great bodily harm, sexual harassment, and using a child for pornographic purposes.

PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES (POCSO) ACT, 2012

The Protection of Children Against Sexual Offences (POCSO) Act,2012 was passed in order to safeguard minors from exploitation and sexual abuse. Additionally, it allows for the creation of special courts to hear cases involving child sexual assault. It also specifies the use of child-friendly practises for gathering evidence, looking into the offence, and holding a trial for it. A “child” is defined by the POCSO Act of 2012 as a person who has not reached the age of 18.

The POCSO Act prescribes the following sexual offences against children: –

1. penetrative sexual assault,
2. trafficking of children for sexual abuse
3. aggravated penetrative sexual assault,
4. sexual assault,
5. using a child for pornographic purposes

When a child who has been sexually assaulted is mentally ill or when the abuse was carried out by someone they trusted, the abuse is referred to as “aggravated.” Legislation under this Act is gender neutral. According to the Act, a “child” is any person who is less than 18 years old. Every child is protected against sexual abuse by it. Through all phases of the legal process, the Act provides for a child-friendly environment. The “best interest of the child” principle is given top priority by the Act.

The provisions of this Act offer a method for reporting, recording evidence, investigating the case, and completing crimes trials quickly. The Act without revealing the identity of the child handles the case through designated special court. The special court in this regard determines the amount of compensation to be paid to the child to cover the child’s medical treatment, rehabilitation and counselling.

Important provisions of POCSO Act, 2012

1. Within 24 hours of receiving a report of child abuse or any case connected to it, a police officer shall bring the situation to the Child Welfare Committee’s notice.
2. To prevent the youngster from being reprimanded, the police officers handling the case must be dressed appropriately when recording the child’s statement.
3. In the presence of the person the child trusts, the child’s statement of the crime must be recorded.
4. Only the lady doctor, present in the presence of a person the child trusts, should examine the child medically in order to gather forensic evidence.
5. Special courts have been established under this Act to hold trials quickly.
6. It is the responsibility of this court to keep the child’s identification a secret and to prevent the accused from seeing the youngster while the statement is being recorded.
7. The child can offer their testimony through video as well, and they won’t have to repeat it over and over.
8. It should be mentioned that the matter shouldn’t be delayed and should be resolved a year after it was reported.

Punishments under the Act

1. Penetrative sexual assault

It may occur through the vagina, mouth, urethra, anal region, or by object. A fine and a sentence of at least 7 years in jail with a possible life sentence are both provided for in Section 4 of the law.

2. A person of power or trust engaging in a particularly invasive sexual assault.

 In accordance with Section 6 of the Act, the penalty must be at least 10 years in jail and may include a fine in addition to strict life imprisonment.

3. Non-penetrative sexual assault committed with a sexual intent.

Non-penetrative sexual assault involves touching a child’s vagina, penis, anus, or breast, asking a kid to touch the perpetrator’s vagina, penis, anus, or breast, or engaging in any other sexually explicit behaviour. In such circumstances, Section 10 calls for a fine in addition to a sentence of at least 3 years, with the potential for 5 years.

4. Aggravated non-penetrative sexual assault done by a person of trust and authority.

Section 10 lays down the punishment which should not be less than 5 years and it may also extend to 7 years, and a fine (Section 10).

5. Sexual Harassment.

Sexually explicit comments, emails, or phone calls; taunting, jeering, or making requests for sexual favours are all examples of sexual harassment. (Section 12) The penalty is three years in prison and a fine.

6. Using a minor for pornographic purposes.

It involves creating and disseminating any print or digital pornographic material. In the event of a second conviction, the penalty would increase to 7 years in prison and a fine (Section 14 (1)).

7. Attempt of offence

Section 18 of the act provides for 1 year punishment and fine.

8. Abetment

 The definition of abetment is same as defied under Section 107 and 108 of the IPC. The punishment is same as that of the offence which is provided under Section 17 of the act.

9. Failure to report an offence.

The punishment is six months and a fine provided under Section 21 of the act.

ANALYSIS OF JUDICIAL PRONOUNCEMENTS

 

Union of India v. Sakshi

An NGO by the name of “Sakshi” brought this lawsuit, expressing concern over the substantial rise in sexual abuse against women and children and the application of IPC articles 377, 375/376, and 354. Because it violated Article 21 of the Constitution, the petitioners brought up the issue of limiting rape cases to penile-vaginal penetration, which has since been changed by the 2013 Criminal Law revision. Numerous statistical studies have shown that abuse of minors that does not include penile or vaginal penetration frequently occurs. It frequently involves the use of a penile/anal, penile/oral, finger/vaginal, or object/vaginal penetration. Additionally, it would be incredibly unfair to include these situations under Section 377. Petitioners had put emphasis on Article 15 (3) of the Constitution which provides for special provisions for women and children which necessarily implies ‘adequate provisions.

India v. Bachpan Bachao Andolan

The Supreme Court received a PIL in response to grave abuses of children’s rights. The petition was especially filed to deter child trafficking from Indian circuses. These locations commonly harbour children who have been sexually assaulted, which is against the Juvenile Justice Act and other international treaties and agreements.

Independent Thought v. Union of India

On October 11, 2017, the Indian Supreme Court rendered a significant decision in the case of Independent Thought v. Union of India (W.P. (c) No. 382 of 2013), in which it read down Exception 2 to Section 375 of the Indian Penal Code, 1860. Because a child will always be a child regardless of whether they are married or not, the Supreme Court has declared that having sex with a minor wife who is between the ages of 15 and 18 is illegal. The Indian Constitution’s Articles 14, 15, and 21 allow for intrusive sexual contact with girls who are underage, and the Court concluded that Section 375 Exception 2 violates those Articles.

THE CRIMINAL LAW AMENDMENT ORDINANCE 2018

A law imposing the death sentence on rapists of girls under 12 years old was passed in April 2018.

IPC, CrPC, IEA, and POCSO Act have been modified by the establishment of age restrictions and other draconian rape laws. The following are the primary modifications that the Ordinance brings about:

1. The minimum sentence for rape was set at ten years.
2. A person who rapes a lady under the age of 16 must face a minimum sentence of 20 years in prison.
3. The maximum penalty for raping a girl under the age of 12 is the death penalty, with a minimum sentence of 20 years in jail.
4. The fine levied must be fair and reasonable to cover the victim’s medical costs and rehabilitation costs.
5. A police officer who commits rape anywhere faces a minimum ten-year sentence in jail.
6. Rape case investigations must be finished in two months.
7. A person accused of raping a minor under the age of sixteen cannot be given an anticipatory bail.
8. Rape appeals must be resolved within six months.

CONCLUSIONS

The following conclusions are drawn from an examination of all POCSO Act provisions and a statistical analysis of the Act’s effects on Indian society:

1. The POCSO Act is a legitimate piece of legislation that has been put into existence to protect children’s rights from sexual abuse and to carry out agreements to which India is a party.
2. The POCSO Act has a real benefit for Indian society.
3. Increased reporting of child sexual abuse cases and an actual increase in the conduct of criminal offences, as is explicit, are to blame for the spike in the rate of crime against children across all of India.
4. The Central Government has made commendable efforts to implement the Act’s provisions through the policies it has developed, but the gap between de jure and de facto policy implementation has not yet been closed. Although the Central Government has worked hard to raise public awareness, the necessity for an effective execution strategy cannot be denied.
5. The POCSO Act has been referred to as a “weapon of harassment.”

RECOMMENDATIONS

1. Public Awareness is Needed

No man can avoid following the law by claiming ignorance of it. Thus, ignorance of the law is a sin because it prevents a citizen from stopping oneself from engaging in illegal action or enforcing his legal rights in court. It is often claimed that a citizen who is informed is a resource for the country, whereas a citizen who is uninformed is a burden. The POCSO Act and its legitimate provisions are largely unknown to the majority of Indians. Even if “Child Line” has come a long way in attaining this objective, there is still a need to educate the younger generation and their guardians about their rights and the ways in which they can be upheld.

2. Need for Uniform Efficacious Implementation Policy

In order to combat India’s rising crime rate, the central government must come up with some novel solutions that target the underlying factors that lead to crime, such as increased exposure to pornographic material on the Internet, social stigmas and prejudices, poverty, indigence, corruption, traditional community structures, and ignorance of legal requirements. It could be done in conjunction with private businesses that can make it effective, by providing an online redressal mechanism, by introducing a no-cost prosecution system if the case is not baseless, vexatious, or the result of mala fides, or by any of these methods.

REFERENCES

https://www.linkedin.com/pulse/pocso-act-2012s-impact-indian-society-legal-analysis-manik-tindwani/

https://thelawbrigade.com/wp-content/uploads/2019/05/Surbhi-Garg.pdf

THE INDIAN EVIDENCE ACT, 1872

 THE INDIAN PENAL CODE, 1860 (60 of 1860)

THE PROTECTION OF CHILDREN FROMSEXUAL OFFENCES ACT, 2012 (32 of 2012)

https://knallp.com/files/3.pdf

https://ijcrt.org/papers/IJPUB1801224.pdf

Written by Harshit Jain

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”