This Article is written by Hia Sharma student of Himachal Pradesh National Law University Shimla.
“The said 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 Protection of Children from Sexual Offences Act, 2012, hereinafter referred to as the POCSO Act came up with these statements of Objects and Reasons in the year 2012. The Act was introduced on the 14th of November, 2012 and it recently got amended in the year 2019.
The POCSO Act, 2012 is a gender-neutral Act that defines sexual offences against children and their respective punishments.
What was the need for this Act? The Act was introduced because before this Act there was no specific Act that dealt with the crimes against the minor and specifically male children. The Indian Penal Code, 1860 which was used earlier has no specific provisions for child-related offences, particularly and it does not emphasize different categories of sexual offences against a child. More importantly, this Act has nowhere mentioned about the sexual crimes that take place against a male child. Therefore keeping in mind all such things and the rise in cases of sexual offences against the children, there was an urgent need to come up with new provisions and a new Act. In this background came the Protection of Children from Sexual Offences Act on 14th of November, 2012.
This Act comprehensively defines and provides for punishments against various types of crimes that take place against a child with no discrimination between a girl child and a boy child. According to theAct, a child is defined as “any person below the age of eighteen years.” Thus this Act is completely a gender-neutral Act.
The Act has been divided into nine parts and it has forty-six sections. The Act has classified the sexual offences against children into major categories. It deals with sexual offences like sexual assault, sexual harassment, pornography, etc. It also provides for special courts to ensure speedy trial and timely justice to child victims. Moreover, it has made the medical examinations and the investigation as well as cross-examination of the victim more children friendly.
The major sexual offences categorized under this Act are- penetrative sexual assault, sexual assault, sexual harassment, child pornography, using a child for pornographic purposes, trafficking of children for sexual purposes, aggravated penetrative sexual assault. Assault is generally categorized as an aggravated assault when it is committed by some rank officers, police personnel, army personnel or any such civil servant, or when the crime is committed against the child that is below 12 years of age or the crime is committed against the child who is physically or mentally unsound. These are some major categories where the crime has been treated as an aggravated crime.
Child Welfare Committee – A Child Welfare Committee (CWC) has been established under the POCSO Act, 2012 for the aid and support of the victim. It is mandatory for the policemen investigating crimes related to children to report the same to the Child Welfare Committee within twenty-four hours. The CWC is given the responsibility of arranging a counselor for the counseling of the victim to relieve him/her of stress and fear and to allow proper noting of the facts and circumstances of the case.
It has also included the provisions of investigating the child in the presence of his/ her parents or in other cases in the presence of any person on which the child shows trust and confidence. The examination for the female victim cannot be done by a male official. The medical examination of the child should be also done in a manner that is least painful to the victim. For female victims, there should be a lady doctor that too in the presence of her parents or any other known person. Moreover, the inquiry from the victim cannot take place in presence of the accused to ensure that no facts are being twisted due to fear or any other related feelings.
Another important provision under this act is that the child cannot be made to stay in police custody overnight. Also, there are strict guidelines in order to prevent the leaking of personal information. In no case, the media is allowed to reveal the identity of the victim.
Despite these provisions, there was no much difference that could be seen in the number of crimes against children. In fact, there was an increase in the number of cases reported. According to the Union and Child Development Minister Smriti Irani report cited from the National Crime Records Bureau, 2016, there was an increase from 44.7% in 2103 over 2012, and 178.6% in 2014 over 2013 and similarly there was no decline in a number of cases thereafter!
Accordingly, a strong need was felt to bring about changes in the POCSO Act, 2012.Therefore, the Act was recently amended in the year 2019. The Act came up with more strict punishments extending up to the death penalty. The major amendments in the Act are as follows-
The change in punishment for rape of a girl child less than 12 years of age- The minimum jail term has been increased to twenty years which can be extendable up to life imprisonment.
The punishment for rape of a girl child less than 16 years has also been raised to a minimum of 20 years which is extendable up to life imprisonment.
Further, the punishment for the rape of a child above 16 years has also been changed to a minimum term of 10 years in jail which can be extendable up to life imprisonment.
The time limit for the investigation of the case has been set to two months. The case should be investigated within two months period of time. Further, it has been provided that the alleged or the accused of the rape of girls below the age of 16 years is not applicable for the anticipatory bail. These are some of the major amendments that came up in the act in the year 2019.
In addition to this, new PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES, 2020 vide notification number G.S.R. 165(E) dated March 09th, 2020 were introduced by the center. The major rules notified are as under-
It has been made mandatory now to make police verification of each person in places where children come like schools, academics, sports centers, care homes, or daycare centers at regular intervals.
There has been made provision for various vocational courses and training programs for the police personnel and forensic experts to make them expert in their respective fields.
The rules also provide age-appropriate education material or curriculum for the children to make them aware of all the safety measures.
The government of states has been asked to follow a zero-tolerance policy for crimes against children.
There is also a procedure for the reporting of materials related to child pornography.
Though the Act has come up with stricter punishments, no significant change in the crime rates can be witnessed. The Crime of sexual offences against children witnessed an increase of 4.5% in 2019. In its report, NCRB stated that as many as 1, 48,185 crimes against children were reported in 2019 in India. This points out that somewhere the Act is lacking in its implementation.
Relevant case laws
In Ghanashyam Kisra vs The State, it was held by the Odisha High Court that the rape of a minor girl aged 10 years in the school premises by her teacher aged 39 years amounts to aggravated sexual assault given the facts that the person is in apposition of trust and authority for the child. Thus this not only led to enhancement in the punishment of the accused but he was also ordered to pay relevant compensation to the child and her father.
The Mathura Rape Case or the Tuka Ram and Anr vs State of Maharashtra showed an act of custodial rape wherein Mathura a tribal minor girl was allegedly raped by two policemen while the girls were in custody. The Supreme Court acquitted theaccused by saying the girl is habitual and she didn’t protest outwardly against the same but there were mass outrage and outcry which led to amendments in Indian rape laws through the Criminal Law Second Amendment Act, 1983.
In Sakshi vs Union of India, the NGO Sakshi filed a writ petition to broaden the aspects of rape in cases involving children. The Supreme Court rejected the plea and dismissed the PIL but valuable guidelines for a trial of rape and sexual abuses concerning the children. These guidelines are commonly known as Sakshi Guidelines.
The POCSO Act, 2012 with its amendment in the year 2019 and the POCSO Rules laid down in the year, 2020 provides for a wide scope of protection for the children irrespective of their gender. The Act comprehensively defines various types of punishments related to crimes against children ranging from sexual assault, sexual harassment, child pornography, etc. Though the Act has been amended no significant change has been witnessed in the crime rates. There is an urgent need to check on the ground realities and the ground implementation of the said act. Moreover, there is a need to ponder the ongoing debates regarding the reduction of age or keeping the age of the child definition constant throughout various Acts and provisions. There is a need to ponder about the provision of the death penalty which is one of the most debated issues of the act. Nonetheless, there is a long way to go to make our country safe for children.
- GhanashyamKisra v. The State AIR 1979 SC 44
- Amendment to POCSO Rule, 2020 while replacing earlier 2012 rules; March 14, 2020; http://lawtimesjournal.in/amendment-to-pocso-rule-2020-while-replacing-earlier-2012-rules/
- Sydney Moirangthem, Naveen C. Kumar & Suresh Bada Math, Child Sexual Abuse: issues & concerns, 142(1) IJMR, 1-3 (2015)
- The Protection of Children from Sexual Offences (Amendment) Act, 2019, Acts of Parliament, 2019 (India)
- Tuka Ram And Anr v. State Of Maharashtra 1979 AIR 185
- Vishakha& Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241