In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
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 trial of such offences and related matters and incidents.
The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child.
Salient features of the Act and its amendment
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 defines a child as any person below eighteen 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 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.
People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
It defines "child pornography" as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child;'
Punishments for Offences covered in the Act
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 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 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 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 child below 16 years, not less than 20 years)
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault : Not less than 20 years and fine
Use of child for pornographic purposes resulting in sexual assault : Not less than three years which may extend upto five 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, with an intention to share or transmit child pornography - Fine of not less than Rs 5,000; in the event of second of subsequent offence, 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 the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description : Upto three years of imprisonment, or with fine, or both.
Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction : Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and upto seven years and also fine.
Provisions related to conduct of trial of reported offences
The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.
The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector.
No child to be detained in the police station in the night for any reason.
Police officer to not be in uniform while recording the statement of the child.
The statement of the child to be recorded as spoken by the child.
Assistance of an interpreter or translator or an expert as per the need of the child.
Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled
Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. 13. Frequent breaks for the child during trial. Child not to be called repeatedly to testify.
No aggressive questioning or character assassination of the child in-camera trial of cases.
The Act recognizes that the Intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized.
The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence.
The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence.
The Act makes it mandatory to report commission of an offence and also the recording of complaint and failure to do so would make a person liable for punishment of imprisonment for six months or / and with fine. 18.1t is a Punishable action if Police / Special Juvenile Police Unit fails to report a commission of the offence under this act [Section- 2141)]
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted to the accused. This provision has been made keeping in view the greater vulnerability and innocence of children.
To prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year) (Section 22).
The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year (Section 23).
For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible (Section 35).
To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860),then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."
The Provisions of this Act is in addition to and not in derogation of any other provisions of any other Law. In case of any consistency the provisions of this act will have an overriding effect on any other provisions.
The POCSO Act is only applicable to child survivors and adult offenders. In case two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000, will apply.