The Protection of Children from Sexual Offences (POCSO) Act and Required Amendments
Child molestation also called the child sexual abuse is a sad reality of India.
Out of every 10 children, 9 children face it in one or the other way. For the
safeguard of the children from this crime, the Protection of Children from
Sexual Offenses (POCSO) Act was enacted. This article briefly throws light on
the same.
Telling the background of the act, the article further tells about the developments in the act which took place time to time. Further, the latest ruling of the Bombay High Court is briefly explained. Listing the fowls in the act, the article further gives a detail of required future developments in the act and finally concludes that the act still needs to be more strict in order to curb the menace of child sexual abuse.
Background of the POCSO ACT:
The Protection of Children from Sexual Offenses (POCSO) Act took effect on November 14, 2012, and was especially formulated to deal with offences like child sexual abuse and child pornography. The extent of reporting offences against children was extended by the act through its 46 provisions. These provisions were not covered under the Indian Penal Code (IPC) or the Goa Children's Act, 2003, which was the only specific piece of child abuse legislation before the POCSO Act 2012.
The criminal penalty for aggravated penetrative sexual assault was expanded by this act by including punishment for abuse by a person in position of trust or authority which included public servants, police and armed forces along with the management or staff of an educational or religious institution. This act also provides for a helpline number to report such offences which is called as CHILDLINE and its number is 1098.[1]
The procedure for reporting cases, including a provision for punishment for failure to report a case or false complaint was also defined by the act. It provided processes for the statement recording of a child by the police and court, especially mentioning that it should be done in a child-friendly manner. The act provides for the establishment of special courts also for the purpose. The act aims to provide protection to the child at every stage of judicial process. The POCSO Act at present is the only law of legislation which deals specifically with the sexual offences against children with gender neutrality.
The timeline for developments in the Act:
The act for the first time was amended in 2019 by The Protection Of Children From Sexual Offences (Amendment) Act, 2019 which received the assent of the President on 5th August,2019. This amendment to the Act enhanced the punishment to include death penalty for aggravated penetrative sexual assault of the child.
The least punishment for sexual assault, penetrative in nature, was increased from 7 years to 10 years. Also, if the child is below 16 years, the punishment was increased to a period of 20 years. The provisions to counter child pornography were also made more stringent by the act of amendment.
While storing child pornography for commercial purposes was punishable by the original act, the amendment act made the possession of child pornographic material in any form punishable. It provides for the punishment even if the accused person fails to destroy or report the same with an intention of sharing the material. The words like communal or sectarian violence had been removed and replaced with the words violence during any natural calamity or in similar situations.[2]
The government also formed a new set of rules under the light of powers mentioned in section 45 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 which was issued vide notification no. GSR 165(E) dated 09.03.2020 in the official gazette which enable the execution of recent amendments to the POSCO Act which have made the punishment stricter for sexual abuse of the children. These rules have made certain additions to the PCSO Rules, 2012 and hereby repealed the same with respect to things done or omitted to be done before the (such) repeal.
Some substantial additions in the new regulations can be found as follows:
Latest Ruling of Bombay High Court
Recently, the single judge bench of the Nagpur branch of the Bombay High Court has passed two controversial judgments/ orders under the POCSO Act. In Satish Ragde v. State of Maharashtra[4] the court held that pressing the breast of the child aged 12 years without removing the top or without skin to skin touch does not amount to sexual assault as defined under section 7 of the Protection of Children from Sexual Offences (POCSO) Act, rather it would constitute an offence u/s 354 of the Indian Penal Code (IPC).
However, the judgment passed on 19 January, 2021faced much criticism. The matter was mentioned by the Attorney General K. K Venugopal and supreme court held that whether the top was removed or not, the act does not come under section 7 of the POCSO Act. The three judge bench of the supreme court stayed the high court order for the release of the 39 year old accused.[5]
In another case of Libnus v State of Maharashtra, [6] by the same bench, the court held that unzipping the pants and holding the hands of a minor child does not amount to ‘sexual assault’ as section 7 of the Protection of Children from Sexual Offences (POCSO) Act defines.
This judgment was delivered 5 days before the controversial skin touch judgment by the court. The case was entertained as an appeal against order which convicted the accused with charges under Sections 354A i.e. sexual harassment and 448 i.e. punishment for house trespass of IPC along with Sections 8 i.e. punishment for sexual assault, section 10 i.e. punishment for aggravated sexual assault and section 12 i.e. punishment for harassment sexually, of the POCSO Act.
The court quashed the charges under Section 8 and 10 of the POCSO Act and upheld the conviction of the accused under Section 354A(1)(i) IPC read with Section 12 of the POCSO Act. A notable point here is that Section 10, under which the accused was convicted by the trial court, carries a punishment of 5-7 years' imprisonment while the sentence under Section 12 of the POCSO Act is an imprisonment which may extend upto three years.
Now the question arises that why would a person on such a reputed position would make such silly mistakes which lead to controversies especially a judge, who himself is much informant by law. The answer is simple, the ambiguities or lack of clarity in the laws. We all know that judicial precedents play an important role in the field of law and most of the times, laws are needed to be interpreted. Hence, in order to remove ambiguities, the law needs to be developed by way of amendments.
Required Future Developments in the Act
As evident in the recent two controversial rulings of the Nagpur Bench of the Bombay High Court, the POCSO Act lacks clarity which may again in future lead to such judgments. As we know, no law becomes perfect at once, same is with the POCSO act. The act just like any new law contains certain loopholes which are needed to be looked at in future. The Act does now not leave any opportunity of consent given with the aid of humans under 18.
This would mean that if a boy or girl aged seventeen years had a sexual partner aged nineteen years, the partner would be in charge to be booked under the provisions of the POCSO Act. The Act also does now not furnish any clarity on what takes place when two minors engage in any variety of sexual activity. Technically, both of them are Children in Need of Care and Protection (CNCP) and Children in Conflict with Law (CCLs). In exercise though, the girls are declared to be CNCPs and the boys to be CCLs by the police.
Another hassle faced through victims is proving the age of the child. Since the POCSO Act is silent on what documents are to be viewed for finding out the age of the child victim, the provisions of Rule 12 of the Juvenile Justice Rules have been examined by means of Courts as applying to child victims as well. This rule recognizes only the birth certificate, the certificates of the child provided by the school, or the matriculation certificate.
However, adolescents who are only capable to produce other documents, for example, a legal document such as a passport, have to bear a bone ossification test. This test can give a difficult estimate of the age of the child at best. A clear provision in the POCSO Act is required that lays down what files or documents have to be viewed for proving the age of the child, and whether the benefit of the doubt need to be given to a child if the ossification check can't grant a correct assessment, or not.
Similar is with the law of rape under IPC. The pronoun used for the accused is he, which means only a male can be booked for the offences under the applicable provisions of the POCSO Act. Though, unlike rape, a sufferer under the POCSO Act can be any child irrespective of the gender, the accused still can only be a male and ladies are once more given a protecting shield, for motives unknown. Saying that women do now not issue child to forceful sexual assault is untrue.
Talking about the amendment, it is seen many times that the accused person is a close relative of the victim. The amendment provides for the death penalty also which in turn will definitely affect the mental health of the child.
These are clear examples of the unexplained gender bias in the legal guidelines relating to sexual intercourse in India. Also, considering the fact that the POCSO Act solely appears into the age aspect, a teenage female below the age of 18 who experiences coercive sexual assault might also later have the boy booked by the provisions under the IPC. But, vice-versa won’t really happen due to the biased definition. A woman who commits a like offence can be booked only for sexual assault underneath the POCSO Act, the punishment therein being plenty much less in contrast to sexual assault under the IPC. [7]
Conclusion
Child sexual abuse laws in India have been sanctioned as part of the child protection policies of India. The POCSO Act, 2012, gives a very huge scope for safety of children from quite a number sexual abuse offences like rape, child’s pornography, child sexual harassment, etc. This act is gender impartial which is one of its key points that it is not meant solely girls or boys.
It does no longer care whether or not you are a normal citizen or civil servant; it has equal punishment for all. Its solely aims to supply justice and nothing else. No doubt the act has certain loopholes but with the time it is being getting advanced which is making it better and more strict.
End-Notes:
Telling the background of the act, the article further tells about the developments in the act which took place time to time. Further, the latest ruling of the Bombay High Court is briefly explained. Listing the fowls in the act, the article further gives a detail of required future developments in the act and finally concludes that the act still needs to be more strict in order to curb the menace of child sexual abuse.
Background of the POCSO ACT:
The Protection of Children from Sexual Offenses (POCSO) Act took effect on November 14, 2012, and was especially formulated to deal with offences like child sexual abuse and child pornography. The extent of reporting offences against children was extended by the act through its 46 provisions. These provisions were not covered under the Indian Penal Code (IPC) or the Goa Children's Act, 2003, which was the only specific piece of child abuse legislation before the POCSO Act 2012.
The criminal penalty for aggravated penetrative sexual assault was expanded by this act by including punishment for abuse by a person in position of trust or authority which included public servants, police and armed forces along with the management or staff of an educational or religious institution. This act also provides for a helpline number to report such offences which is called as CHILDLINE and its number is 1098.[1]
The procedure for reporting cases, including a provision for punishment for failure to report a case or false complaint was also defined by the act. It provided processes for the statement recording of a child by the police and court, especially mentioning that it should be done in a child-friendly manner. The act provides for the establishment of special courts also for the purpose. The act aims to provide protection to the child at every stage of judicial process. The POCSO Act at present is the only law of legislation which deals specifically with the sexual offences against children with gender neutrality.
The timeline for developments in the Act:
The act for the first time was amended in 2019 by The Protection Of Children From Sexual Offences (Amendment) Act, 2019 which received the assent of the President on 5th August,2019. This amendment to the Act enhanced the punishment to include death penalty for aggravated penetrative sexual assault of the child.
The least punishment for sexual assault, penetrative in nature, was increased from 7 years to 10 years. Also, if the child is below 16 years, the punishment was increased to a period of 20 years. The provisions to counter child pornography were also made more stringent by the act of amendment.
While storing child pornography for commercial purposes was punishable by the original act, the amendment act made the possession of child pornographic material in any form punishable. It provides for the punishment even if the accused person fails to destroy or report the same with an intention of sharing the material. The words like communal or sectarian violence had been removed and replaced with the words violence during any natural calamity or in similar situations.[2]
The government also formed a new set of rules under the light of powers mentioned in section 45 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 which was issued vide notification no. GSR 165(E) dated 09.03.2020 in the official gazette which enable the execution of recent amendments to the POSCO Act which have made the punishment stricter for sexual abuse of the children. These rules have made certain additions to the PCSO Rules, 2012 and hereby repealed the same with respect to things done or omitted to be done before the (such) repeal.
Some substantial additions in the new regulations can be found as follows:
- a required mandatory police verification of each and every man or woman and vicinity where children come like schools, academies, sports activities centers, care homes or day care centers, and many others after regular intervals.
- making a number of vocational courses and training curriculum available for the police officials and forensic experts, so, that they attain greater expertise in their respective fields.
- making age-appropriate instructional material the part of their curriculum, to instruct them safety measures, control emotions, etc.
- the governments have additionally been asked to formulate zero-tolerance protection principle in case of sexual abuse of children.
- procedure for reporting for material used for sexual abuse like pornography.
- spreading the understanding of age-appropriate toddler rights among different people.[3]
Latest Ruling of Bombay High Court
Recently, the single judge bench of the Nagpur branch of the Bombay High Court has passed two controversial judgments/ orders under the POCSO Act. In Satish Ragde v. State of Maharashtra[4] the court held that pressing the breast of the child aged 12 years without removing the top or without skin to skin touch does not amount to sexual assault as defined under section 7 of the Protection of Children from Sexual Offences (POCSO) Act, rather it would constitute an offence u/s 354 of the Indian Penal Code (IPC).
However, the judgment passed on 19 January, 2021faced much criticism. The matter was mentioned by the Attorney General K. K Venugopal and supreme court held that whether the top was removed or not, the act does not come under section 7 of the POCSO Act. The three judge bench of the supreme court stayed the high court order for the release of the 39 year old accused.[5]
In another case of Libnus v State of Maharashtra, [6] by the same bench, the court held that unzipping the pants and holding the hands of a minor child does not amount to ‘sexual assault’ as section 7 of the Protection of Children from Sexual Offences (POCSO) Act defines.
This judgment was delivered 5 days before the controversial skin touch judgment by the court. The case was entertained as an appeal against order which convicted the accused with charges under Sections 354A i.e. sexual harassment and 448 i.e. punishment for house trespass of IPC along with Sections 8 i.e. punishment for sexual assault, section 10 i.e. punishment for aggravated sexual assault and section 12 i.e. punishment for harassment sexually, of the POCSO Act.
The court quashed the charges under Section 8 and 10 of the POCSO Act and upheld the conviction of the accused under Section 354A(1)(i) IPC read with Section 12 of the POCSO Act. A notable point here is that Section 10, under which the accused was convicted by the trial court, carries a punishment of 5-7 years' imprisonment while the sentence under Section 12 of the POCSO Act is an imprisonment which may extend upto three years.
Now the question arises that why would a person on such a reputed position would make such silly mistakes which lead to controversies especially a judge, who himself is much informant by law. The answer is simple, the ambiguities or lack of clarity in the laws. We all know that judicial precedents play an important role in the field of law and most of the times, laws are needed to be interpreted. Hence, in order to remove ambiguities, the law needs to be developed by way of amendments.
Required Future Developments in the Act
As evident in the recent two controversial rulings of the Nagpur Bench of the Bombay High Court, the POCSO Act lacks clarity which may again in future lead to such judgments. As we know, no law becomes perfect at once, same is with the POCSO act. The act just like any new law contains certain loopholes which are needed to be looked at in future. The Act does now not leave any opportunity of consent given with the aid of humans under 18.
This would mean that if a boy or girl aged seventeen years had a sexual partner aged nineteen years, the partner would be in charge to be booked under the provisions of the POCSO Act. The Act also does now not furnish any clarity on what takes place when two minors engage in any variety of sexual activity. Technically, both of them are Children in Need of Care and Protection (CNCP) and Children in Conflict with Law (CCLs). In exercise though, the girls are declared to be CNCPs and the boys to be CCLs by the police.
Another hassle faced through victims is proving the age of the child. Since the POCSO Act is silent on what documents are to be viewed for finding out the age of the child victim, the provisions of Rule 12 of the Juvenile Justice Rules have been examined by means of Courts as applying to child victims as well. This rule recognizes only the birth certificate, the certificates of the child provided by the school, or the matriculation certificate.
However, adolescents who are only capable to produce other documents, for example, a legal document such as a passport, have to bear a bone ossification test. This test can give a difficult estimate of the age of the child at best. A clear provision in the POCSO Act is required that lays down what files or documents have to be viewed for proving the age of the child, and whether the benefit of the doubt need to be given to a child if the ossification check can't grant a correct assessment, or not.
Similar is with the law of rape under IPC. The pronoun used for the accused is he, which means only a male can be booked for the offences under the applicable provisions of the POCSO Act. Though, unlike rape, a sufferer under the POCSO Act can be any child irrespective of the gender, the accused still can only be a male and ladies are once more given a protecting shield, for motives unknown. Saying that women do now not issue child to forceful sexual assault is untrue.
Talking about the amendment, it is seen many times that the accused person is a close relative of the victim. The amendment provides for the death penalty also which in turn will definitely affect the mental health of the child.
These are clear examples of the unexplained gender bias in the legal guidelines relating to sexual intercourse in India. Also, considering the fact that the POCSO Act solely appears into the age aspect, a teenage female below the age of 18 who experiences coercive sexual assault might also later have the boy booked by the provisions under the IPC. But, vice-versa won’t really happen due to the biased definition. A woman who commits a like offence can be booked only for sexual assault underneath the POCSO Act, the punishment therein being plenty much less in contrast to sexual assault under the IPC. [7]
Conclusion
Child sexual abuse laws in India have been sanctioned as part of the child protection policies of India. The POCSO Act, 2012, gives a very huge scope for safety of children from quite a number sexual abuse offences like rape, child’s pornography, child sexual harassment, etc. This act is gender impartial which is one of its key points that it is not meant solely girls or boys.
It does no longer care whether or not you are a normal citizen or civil servant; it has equal punishment for all. Its solely aims to supply justice and nothing else. No doubt the act has certain loopholes but with the time it is being getting advanced which is making it better and more strict.
End-Notes:
- Child Helpline Number http://www.childlineindia.org.in/child-sexual-abuse-law-and-lacuna.htm
- The Protection Of Children From Sexual Offences (Amendment) Act, 2019 pdf https://www.prsindia.org/sites/default/files/bill_files/Protection%20of%20Children%20from%20Sexual%20Offences%20%28Amendment%29%20Act%2C%202019.pdf
- Ministry Of Women And Child Development Notification New Delhi, the 9th March, 2020 http://egazette.nic.in/WriteReadData/2020/218601.pdf
- Satish Ragde v. State of Maharashtra https://cdn.dynamic.soolegal.com/document-center/421/judgements/pressing-a-childs-breast-without-skin-to-skin-contact-does-not-amount-to-sexual-assault-under-pocso-act-bombay-high-court-388064.pdf
- Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act (Krishnadas Rajagopal) New Delhi, January27, 2021 14:48 IST Updated: January 27, 2021 20:49 IST https://www.thehindu.com/news/national/supreme-court-stays-bombay-hc-order-on-skin-to-skin-contact-for-sexual-assault-under-pocso-act/article33675124.ece
- Libnus v State of Maharashtra https://images.assettype.com/barandbench/2021-01/4a6c67df-3ff3-4026-8164-24d331b8efd6/libnus_v_maharashtra.pdf
- Critical Analysis of India’s Protection of Children from Sexual Offenses Act 2012 (Mayank Tiwari) MAY 8, 2020 01:20:58 AM Edited by: Tim Zubizarreta | U. Pittsburgh School of Law, US https://www.jurist.org/commentary/2020/05/mayank-tiwari-posco-act/
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