A Critical Analysis of the Protection of Children from Sexual Offence Act, 2012

Reading time : 10 minutes

Introduction:

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” – Nelson Mandela

The history of mankind, being the silent spectator, has witnessed countless atrocities committed by the human race; and the harsh reality is that the mindless violence incited by the mankind had again and again scorched the children also. The subject of child sexual abuse is still a taboo in India. As more often than not, Indian families shy away from discussing topics such as safe sex practice, consent or the difference between good touch and bad touch, child sexual abuse is an under-reported offence in India, which has been rapidly and quite alarmingly, increasing since last decade. According to a study conducted by the Ministry of Women and Child Development, Government of India in 2007, 53.22% of children had faced one or more forms of sexual abuse that included severe and other forms. Among them 52.94% were boys and 47.06% girls[1]. India holds the first place with 11.7% of the total global reports of child sexual abuse material found online[2].

The horror of sexual assault on a child is inflicted by, more often than not, a person who is known to the child or who is a family member or close relative. A child experiencing such trauma has to face severe ramifications for his or her life as sexual assault on a child adversely effects the social and mental growth which frequently reflects as a psychological disorder in the adulthood of the child. Also, studies have found that survivors of child sexual abuse tend to enter into the cycle of violence as they are at a greater risk of becoming predators or committing relational violence. To curb the fearsome velocity of child sexual abuse scenario in India, the Protection of Children from Sexual Offences Act, 2012 (hereinafter POCSO Act) was enacted.

The Protection of Children from Sexual Offence Act, 2012:

Despite of India ratifying the UN Convention on Rights of Child on 11th December, 1992 where all the State parties to the Convention are to ensure protection of child’s right against any unlawful sexual activity, exploitative use of children in prostitution or other illegal and exploitative sexual practices using children in pornographic performance or materials, number of sexual offences committed against children were increasing with every passing moment. Prior to the enactment of the POCSO act, 2012, there was no specific law which dealt with particular offences relating to sexual offences against children. Generally, Indian Penal Code, 1860 dealt with the offences and doled out punishment for the offenders. Even though, IPC, 1860 did not have any specific provisions which solely deals with sexual offences committed against children but existence of sections such as Section 322 which deals with causing physical grievous hurt, Section 354 which provides for punishment for assault towards a women which outrages her modesty, Section 375 which deals with rape and lastly Section 377 which provides for unnatural offences, were often being applied in the cases of sexual assault or abuse against children.

As these sections of IPC failed to provide for a concrete definition of modesty, included only traditional peno-vaginal intercourse in the definition of rape, and only female victims were given priority and hence, was not gender neutral, many offenders slid through these cracks of technicality and went unpunished for their transgression. The non-existence of a proper statutory solution for the ever-increasing number of sexual offences committed against children posed a real threat to the welfare of children and to the maintenance of justice in the society.

Hence, on 22nd May, 2012 both the Houses of Parliament passed the Protection of Children from Sexual Offences Act, 2012 and it came into force on 14th November, 2012. The POCSO Act, is a self-contained statute which ensures providing protection of children from sexual offences, sexual assaults and pornography. The Act also provides safeguarding measures to maintain the welfare of the child during every stages of judicial process and provides for establishment of special courts with the objective of speedy trial.

Features of the POCSO Act:

  • The Act is gender neutral. Unlike the provisions of the Indian Penal Code, 1860, the POCSO Act does not consider only females to be victims of sexual assault. The Act is an example pf discrimination free legislative effort which only aims to provide protection to all children regardless of their gender.
  • The Act provides a more comprehensive definition of sexual assault under Section 3 of the Act which punishes not only the traditional peno-vaginal penetration but also punishes any person penetrating his penis or any object into the vagina, anus or mouth of a child or making the child do any such act.
  • The Act also extended the scope of penetrative sexual assault to make any and every possible variations of such penetrative action punishable under the Act, whether such act is done by a person of trust or a person of authority who has influence on the child.
  • The Act also take the factor of abuse of power into account as it provides stringent punishment, under Section 5 of the Act, to any person such as a police officer, any public servant or officer of any security force who abuses his power to commit penetrative sexual assault on a child.
  • Sexual assault, under this Act, has also been given more weightage which includes objectification of children for any pornographic purpose or other.
  • To curb distribution of child pornography, the Act has extended the definition of the term media to include print, computer or any other technology which is used for production or offering or distribution of pornography. The Act also penalized any storage of child pornography.
  • To ensure speedy trial and precise delivery of justice, the Act provides for establishment of Special Courts in every district. Also, the Special courts are empowered hold the trial in camera and with the presence of a trusted person of the child.
  • Section 36, to prevent the child from suffering from further mental strain and trauma, provides for the provision for the child not to see the accused at the time of testifying.

The Protection of Children from Sexual Offences (Amendment) Act, 2019

After 2016 there was a surge in the commission of crimes related to the children; 1,04,976 cases registered under POCSO Act during the year 2014-16[3]. As per National Crime Records Bureau, a total of 34,449, 34,505 and 36,022 cases are registered under Protection of Children from Sexual Offences (POCSO) Act, 2012, related with other section of IPC during 2014, 2015 and 2016 respectively[4].

In the face of rampant increase of sexual offences committed against children, it was clear that to put a stop to this ever-growing frightening scenario, more stringent punishment was required. The amended POCSO act of 2019 aimed mainly to increase the punishment, provided for a more broadened definition of aggravated sexual assault, made provisions for child pornography specifically and also empowered the Courts to impose capital punishments in the rarest of rare cases.

Features of the Amendment Act

  • The amended Act increased the punishment for penetrative sexual assault from a minimum of seven years to a minimum of twenty years.
  • The amended Act ensures that the victim will be paid compensated for the his or her medical expenses and expenses relating to rehabilitation.
  • The words “communal or sectarian violence” in case of penetrative sexual assault and aggravated penetrative sexual assault has been changed to “violence or during any natural calamity or in similar situations”.
  • The amended Act also broaden the scope of Section 9 which deals with aggravated sexual assault by including administering any drug or chemical or hormonal substance to make the child attain sexual maturity.
  • The amended Act introduced more severe punishment for storing any pornographic materials containing child with the intention of distributing it commercially or neglecting to report.
  • The amended Act also empowers the Courts to impose the capital punishment on rarest of rare cases but such application of the capital punishment is left at the discretion of the court.

Shortcomings of the POCSO Act:

Protection of Children from Sexual Offences Act, 2012 may seem as an ideal legislative effort to curb sexual violence committed against children and protect the children from the same, and with the amendment of 2019, the increased punishments and more detailed and inclusive definitions of offences may give the Act the look of an all-encompassing legislation but the Act suffers from certain shortcomings or loopholes as loopholes are inherent element of every statute.

The Act only consider the biological age of the child and not the mental age. POCSO Act defines a child as a person below 18 years but the Act is silent on the issue of which document is to be considered to determine the age the child. Thus, the Courts have been applying the provisions of Rule 12 of the Juvenile Justice Rules since the POCSO Act provides no answer.

The Act does not recognize consensual sexual intercourse or sexual relationship between two minors as the Act does not consider adolescents from 16 to 18 years old as the age of consenting adult. Thus, if a 17 years old girl or boy engages in consensual sexual activities with a 19-year-old partner, the Act allows the possibility of the 19 years old partner to be booked under the POCSO Act as the consent of the 17 years old is not given any value under the Act. The Act is silent on the issue of consensual sexual activities between two minors.

Section 22 of the Act imposes punishment for false complaining but the same Section exempts the child from any such punishment for lodging a false complaint. It leaves a door open to misuse the Act as there have been many instances where false complaints had been lodged by families as a scare tactics or to take revenge on someone.

Even though POCSO Act makes an effort not to discriminate when it comes to protection of children from sexual violence as the Act aims to provide protection to every child, regardless of their gender, the Act is not fully free from gender biases. The Act uses the pronoun “he” denoting the accused or the offender. Thus, the Act shields women from the ambit of punishments under POCSO Act as it turns a blind eye to the possibility of female sexual offenders.

Despite of the Act making provisions for establishment for Special Courts with the aim to dispose speedy trial, and providing for certain time frame within which Courts are to complete the trials as per Section 35 of the Act, the reality is a different story as the pending cases are ever increasing, and the required establishment of Special Courts in every district are nowhere near to be completed.

Role of Judiciary:

The judiciary plays a significant role in providing speedy justice to the children who are the victims of sexual assaults and offences. But unfortunately, countless institutional weak points and severe infrastructural faults of the institutions leads to the failure of legal protection of the children which consequently leads to frustration towards the justice system.

A prime example of that would be the humongous backlog of pending cases of sexual offences against children regardless of the timeline laid down by the Section 35 of the Act. Section 35 of the Act states that the testimony of the child is to be taken within one month from the date of cognizance of the court and the trial is to be concluded in the same time period. But the reality is vastly different as Indian Courts are bogged down and exponentially overburdened.

Often times than not, due to the loopholes of the Act or insufficient understanding of the issue leads to contradictions of the main objective of the Act. The recent two judgements passed by the Nagpur Bench of the Bombay High Court have been faced with nation wide criticism.

In Satish v. Maharashtra, on an appeal against the conviction in a case where the accused had taken the minor girl into his house and had pressed her breast and partially stripped her, Justice Pushpa Ganediwala, the Nagpur Bench of Bombay High Court, contemplated whether the act of pressing the breasts of a child without removing her top considers as sexual assault. Section 7 of the POCSO Act defines Sexual Assault as the act of touching the private parts of the child or making the child touch the private parts of the accused or someone else. The Judge, in this case held that, there must be ‘skin to skin’ contact with sexual intent to establish sexual assault and since there is no clear detail as to whether the top of the minor girl was removed or not, the act of the accused would not fall within the ambit of sexual assault.

Mere a week later, Justice Pushpa Ganediwala, Nagpur Bench of the Bombay High Court had given an equally controversial judgement in Libnus v. State of Maharashtra, where the High Court had held that ‘holding hand with the minor’ and the opened zip of the pants of the accused witnessed by the mother of the minor at the relevant time does not constitute as sexual assault.

These two judgments have evoked massive public outcry that had led to the Supreme Court being involved in the matter and order stay of the issue. But if all emotional connections are set aside for one moment, it can be said that the misinterpretation by the Bombay High Court is partly due to the ambiguous wordings of the Act. The inherent loopholes of the POCSO Act needs to be mended as soon as possible, otherwise judgements such as in these two cases, which basically contradicts the purpose of the POCSO Act would again and again resurface, causing the general public to be frustrated towards the judiciary.

Conclusion:

The main objective of the POCSO Act is to provide protection to the children against sexual assaults and abuse and every kind of sexual offences. But the objective of this Act can not be fulfilled as long as the topics of safe sex, good touch and bad touch remains a taboo within Indian families. Majority of rural India is still unaware of the existence of such Act which mainly aims to curb sexual violence towards children, thus more often than not, any instance of sexual offence committed against a child ends in child marriage or exclusion of the family from the society or complete silence about such heinous crime committed against the child.

The only solution to this issue is introduction of sex education in schools, sensitization of parents, family members as well as police officers and lawyers. Understanding the issue of sexual violence against children has to be made a priority for all, because only through understanding, the silence of shame and confusion around the topics of sexual offences can be broken.

Also, it is the high time to amend the POCSO Act to eliminate all the shortcomings of the Act which prevents from justice being served. All-inclusive and detailed definitions of the offences would be a welcome change in the Act as lack of clarification and lucidity makes that Act an undesirable legislation. The legislature must take cautious yet knowledgeable steps to implement the Act more effectively. 


[1]  P. B. Behere, T. S. Sathyanarayana Rao, and Akshata N. Mulmule “Sexual abuse in women with special reference to children: Barriers, boundaries and beyond” Indian J Psychiatry. 2013 Oct-Dec, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3890930/. (Visited on March 10, 2021)

[2] Ramya Kannan, Most Online Content On Child Sexual Abuse From India, The Hindu, 18th April, 2020, available at https://www.thehindu.com/news/national/most-online-content-child-sexual-abuse-material-from-india/article31377784.ece. (Visited on March 10, 2021)

[3] Crime In India, ‘National Crime Records Board’ (Ministry of Home Affairs Statistics 10 Oct, 2019), available at http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf. (Visited on March 11, 2021)

[4] Press Information Bureau, ‘Ministry of Women and Child Development’ (PIB Delhi, 08 Feb 2018), available at http://pib.gov.in/pressreleaseshare.aspx?PRID=1519943. (Visited on March 11, 2021)

Author: ANANYA BOSE

Editor: Kanishka VaishSenior Editor, LexLife India.

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