Criminal Law: POCSO Act

Reading time : 10minutes

INTRODUCTION

India has one of the largest proportions of population in the younger age groups in the world. 35.3% of population of the country has been in the age group 0-14 years at the Census 2001. 41% of population account for less than 18 years of age.

This data gives an idea that a large portion of the population in India consists of children (below 18 years age). A country with such a huge number of children must have legislations to protect these children from crimes especially from those related to sexual abuse. With a view to protect the most vulnerable population from sexual offences, the POCSO Act 2012 was passed by the Parliament.

What is Child Sexual Abuse?

Child Sexual Abuse (CSA) is a form of abuse in which a child under the age of 18 years is made subject to any kind of sexual exploitation including assault, harassment, pornography and indecent exposure by an adult or older adolescent. These abuses can have different settings such as home, school, or work (where child labor is prevalent). Since these young children are the most vulnerable age group, sexual offenders find it easy to exploit them. It is found that most of the time it is someone known to the child or someone close, many young children do not realize what is happening with them as they do not have that mental capacity to understand the situation and the consequences. Even consent by a minor to sexual activity with an adult is condemned as an adult can easily manipulate them into believing it to be a normal social behavior. We have to assume that minor children do not have the mental capacity to differentiate between what is normal acceptable behavior and what is an immoral criminal act.

According to a data released by National Crime Bureau, 109 children were sexually abused every day in 2018. 32,608 cases were reported in 2017 while 39,822 cases were reported in 2018 under the POCSO Act which was a straight 22% jump in the cases.

As many as 21,605 child rapes were recorded in 2018 which included 21,401 rapes of girls and 204 of boy, the data showed. The highest number of child rapes was recorded in Maharashtra at 2,832 followed by Uttar Pradesh at 2023 and Tamil Nadu at 1457, the data showed.

According to National Centre for Sexual Abuse, child pornography is one of the fastest growing online businesses and India is among its biggest consumers and contributors. The Indian National Crime Records Bureau (NCRB) found more than 25,000 pieces of alleged child sexual abuse content have been uploaded to social media platforms in India as on April 2020.

Laws prior to POCSO Act

In India offences relating to child sexual abuse were covered under Indian Penal Code, Section 375, Rape, Section 354, Outraging the modesty of a woman and Section 377, Unnatural offences.

There were provisions for punishment of rape of a minor but child sexual abuse was not specifically defined so as to cover other aspects of this crime. These laws had many loopholes; one such major loophole was rape under IPC only protects female victims so even if sexual offences against minor girl would be covered but offenders could get away with crimes against male child.

The ambit of these sections was very small and covered only the act of penetration into female body parts including vagina, mouth, urethra, and anus. Unnatural offence under Section 377 has also not been defined explicitly. There were also no strict laws for protection against child pornography.

Goa was the only state to have a law protecting children from sexual abuse, Goa Children’s Act 2003. There was a dire need for a new and strict legislation which would cover all different kinds of offences including sexual assault, sexual harassment and child pornography. The POCSO Act was passed by the parliament in 2012 which would come under the Ministry of Women and Child Development.

Objectives of POCSO Act

This Act aims to protect children from offences of sexual assault, sexual harassment, and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith and incidental thereto.

The Government of India acceded on the 11th of December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which had prescribed a set of standards to be followed by all State parties in securing the best interests of the child.

This Act was passed with a view to make necessary laws for the proper development of the child and his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child; it was important that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.

Important Provisions of the Act

SEXUAL OFFENCES AGAINST CHILDREN

1. Penetrative sexual assault (Section 3).

2. Aggravated penetrative sexual assault (Section 5).

3. Sexual Assault (Section 7).

4. Aggravated sexual assault (Section 9).

5. Sexual harassment (Section 11).

6. Use of child for pornographic purposes (Section 13).

PUNISHMENT

1. Penetrative sexual assault (Section 4) – imprisonment for a term not less than seven years which may extend to imprisonment for life and shall also be liable to fine.

2. Aggravated penetrative sexual assault (Section 6) – rigorous imprisonment for a term not less than ten years which may extend to life imprisonment and shall also be liable to fine.

3. Sexual assault (Section 8) – imprisonment for a term not less than three years which may extend to five years and shall also be liable to fine.

4. Aggravated sexual assault (Section 10) – imprisonment for a term not less than five years which may extend to seven years and shall also be liable to fine.

5. Sexual harassment (Section 12) – imprisonment for a term which may extend to three years and shall also be liable to fine.

6. Using child for pornographic purposes (Section 14) – maximum punishment may extend up to ten years or imprisonment for life and shall also be liable to fine.

REPORTING OF CASES (Section 19-23)

1. A person shall report a case under this Act to Special Juvenile Police Unit or the local police. Report given by a child must be recorded in a simple language or otherwise, a translator must be provided.

2. The child must be admitted into a shelter home or to the nearest hospital within twenty four hours if in need of care and protection.

3 .The matters must be reported to the Child Welfare Committee and the Special Court within a period of twenty four hours.

4. Failure in reporting a case under this Act shall be punishable. There will be an imprisonment of six months and one year for false complaint and false information, respectively.

5. The identity of the child shall not be disclosed by the media.

STATEMENT RECORDING OF THE CHILD (Section 24-27)

The recording of statement must take place in a safe environment where a child does not feel conscious and can explain the facts in a reasonable manner. The Magistrate or the police officer, as the case maybe, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child.

Medical examination of the child must be conducted in the presence of the parent of the child or a woman nominated by the head of the medical institution. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

SPECIAL COURTS (Section 28-38)

For the purpose of speedy trial Special Courts have been designated in each district, the procedure and powers of the Special Courts have been given under Section 33 of the Act.

A Special Public Prosecutor shall be appointed for every Special Court for conducting cases only under the provisions of this Act.

Where any offence is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The Special Court shall ensure that the child is not exposed in anyway to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.

The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.

PRESUMPTION OF MENS REA (Section 29-30)

The Special Court shall presume that the person who is prosecuted for committing or abetting or attempting to commit any offences under sections 3, 5, 7and section 9 of this Act, has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

The Special Court shall presume the presence of guilty mind in any prosecution for any offence which requires a culpable mental state of accused and the accused in his defense must prove the contrary.

2019 Amendment of POCSO Act

The 2019 Amendment to the Act brought about few major changes increasing the minimum punishment from seven to ten years for penetrative sexual assault. It further added that if a person commits penetrative sexual assault on a child below 16 years, he shall be punished with imprisonment for not less than 20 years.

The amendment also added two more offences to definition of aggravated sexual assault and storage of pornographic material involving children and changes the punishment thereof.

LANDMARK CASES

Ms. Eera Through Dr. Manjula … v. State (Govt. of Nct of Delhi) (2017)

The Supreme Court in this case held that biological age must be considered and not mental age when dealing cases under the POCSO Act.

Independent Thought v. Union of India (2017)

The Supreme Court declared the exemption to marital rape under Section 375 IPC as applicable to minor girls unconstitutional for violating two fundamental rights: Article 14(9) and Article 21, Constitution of India.

Alakh Alok Srivastava v. Union of India and Others (2018)

This case was significant as regard to the speedy trial and monitoring of the trials. The petitioner sought for instructions to be issued to the Special Court to fast track the cases by not granting unnecessary adjournments and completing the trial within a specific time frame under the Act.

CONCLUSION

This Act was a comprehensive move in order to make child protection stricter and broaden its scope. The Act brought a major change in how the cases related to Child Sexual Abuse were dealt in India; reforms were needed and this Act was a right step taken to protect children from becoming victims to such shameful and horrifying crimes.

Authors: Surabhi Jha

Editor: Kanishka Vaish, Editor, LexLife India.

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