Protection Of Children From Sexual Offences Act (POCSO), 2012

ABSTRACT

Recent times in India, Child Sexual Abuse (CSA) increases day by day. Child Sexual Abuse is a heinous crime in any society or country. Today, the number of these cases increases, there are many cases reported in India each day of child sexual abuse. The POCSO Act was enacted in 2012 to save the childhood of children. Before the implementation of this act, there are many provisions in the Indian Penal Code, 1860 and other Act where many offences against human described which not enough for sexual offences against children. There was no provision or special law for child sexual abuse. There are many difficulties arose to implement this Act. Child sexual abuse is a hidden and socio-legal offence. I will represent in my article about the POCSO Act, its implementation, its features, drawbacks and amendments.

INTRODUCTION

The POCSO Act was introduced by the Ministry of Women and Child. This Act received assent from President on 19th June 2012 and it was notified in the Gazette of India on 20th June 2012. So, the Act came into force on 14th November 2012. The POCSO Act was established to protect the child from sexual abuse, assault, harassment and pornography. In this Act, the Child defines as a person below the age of 18 years. The Act provides a child – friendly trial which the perpetrators could be punished. It also makes provision for re-victimisation of a child at the hand of the judicial system. This Act defines different forms of sexual abuse, penetration, non-penetration, sexual assault, sexual harassment and pornography. In this Act, sexual assault considered as “aggravated if the abused child is mentally ill or when the abuse is committed by a member of an armed force or police officer, or a trustworthy person like a family member, or public servant, or doctor, or staff of hospital – whether Government or Private.

The purpose of this Act is to provide safeguards to children. Many of the children faced sexual abuse but there was no special provision for children. To protect the children this Act established because the child sexual abuse affects children’s mental and physical health, or restrain them to develop their socio-legal relations and ruin their childhood as well. This Act helps children to develop their socio-legal relations. There are many difficulties that arose for the implementation of this Act. POCSO provides for relief and rehabilitation as soon as the complaint filed under Special Juvenile Police or local Police, who are immediate arranged care and protection of victim child. There is a special court for children to provide them with a speedy trial or justice as well as there is a special procedure for proceedings to keep the accused away from the children at the time of testifying. The POCSO Act still does not know to the local people of India. The local people did not know or aware of this Act even they did not hear about this Act. There are few people who known or heard this Act. The Supreme Court issued direction to State on 7th February 2013, to ensure that the regulatory and monitoring bodies are constituted and made functional.

The Act also makes it mandatory to report such cases and makes it the legal duty of a person to report such cases. If a person knowingly fails to do so, he will punish with six months’ imprisonment. The statement of the child should be recorded within 30 days of the reported case and the trial should be complete under one year. There are some basic features of this Act –

• It is a gender-neutral Act.
• It makes reporting mandatory.
• It includes different forms of child sexual abuse.
• It established a friendly relationship with the victim child and establish special procedures for the child.
• This Act also protects the child from accused and re-victimisation of a child at the hands of the judicial system.
• There is a speedy trial of reported cases, etc.

There were many amendments in this Act in 2019, the POCSO Amendment Bill 2019 was introduced by Minister of Women and Child Development, Ms. Smiriti Zubin Irani on 18th July 2019. Basically in this amendment, they increases the punishment of sexual abuse and add such more grounds. Here some main points of amendment –

• Penetrative Sexual Assault – In this, the Bill increases the minimum punishment form 7 to 10 years and adds if a person commits sexual abused with a child below the 16 years of age, he will punishable with imprisonment between 20 years to life, with fine.
• Aggravated Penetrative Sexual Assault – The Act defines sexual act committed by any public servant, or doctor, or staff of hospital etc., it increases the gravity of the crime. The Bill adds two more grounds:

1. Assault resulting in the death of a child;
2. Assault committed during a natural resource or in any similar situation of violence.

It increases the minimum punishment from 10 to 20 years and the maximum punishment is the death penalty.

• Aggravated Sexual Assault – the Bill adds two more grounds in it:

1. Assault during any natural calamity;
2. Administrating or help in administrating any or hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.

• Pornographic Purpose – The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated image indistinguishable from an actual child.  In addition, the Bill enhances the punishments for certain offences.
• Storage of Pornographic Material – The Bill increases the punishment between 3 to 5 years and adds two other offences for storage of pornographic material:

1. Failing destroy, or delete, or report pornographic material involving a child;
2. Transmitting, displaying, and distributing such material except for the purpose of reporting it.

Now, POCSO Act includes 9 Chapters and 46 Sections. Today in India 41% of the total population is below the age of 18 years. There are many drawbacks of POCSO Act. In POCSO the consent of children is immaterial and there were no clear guidelines for medical examination of the victim child. In 2016, over 36,000 cases registered under POCSO Act. In reality, police did not charge culprits under POCSO Act and instead of this, they were continuing to use the Indian Penal Code. There is no express guideline for recording statement of victim child below the age of 5 years and those children who cannot explain the incident. Many cases reported in India daily against the child sexual abuse but we can see that no justice provided to victim child and the offender set free. Many women faced sexual abuse in their childhood. POCSO Act defines different form of sexual abuse but police offices fail or make mistake to charge the culprit under the appropriate category of offence, even the POCSO does not offer any counsellor to the child and his family at the point where the offence get registered. The recording of the victim’s statement before a magistrate under Section 164 of Criminal Procedure Code happen 2 or 3 days after the commencement of Act. That is a crucial period in which the child can influence or threatened by the offender because, in 40% cases, the offender knows the victim and his family. The POCSO Act misused by parties to take revenge for their enemies through their children. In a case, a woman accusing her husband of having an illicit sexual relationship with their 11 years old daughter. There are so many false cases report under this act.

Nowadays, a law or act is only written on pages but not implement effectively. It is only made but fails to implement in-country. After the POCSO Act enacted, there were many cases were justice delay and offender set free.

This article has been written by Nishu Singh of BALLB student of 2nd year in Jagannath Institute of Management Science (JIMS)

Read Also: Child Abuse In The Name Of Marriage