This post is written by Megha Jain, a first year student at Hidayatullah National Law University, Raipur.
In order to more proficiently curb the heinous sexual crimes and offences done against children, the Ministry of Women and Child Development introduced a new Act. Protection of children from sexual offences (POCSO) Act, 2012 was passed by the Indian Parliament on 14th November 2019 (see here). This Act is a comprehensive set of laws to protect children from sexual abuse, pornography, harassment. This Act also provides for children with easier yet effective judicial procedure and child-friendly mechanism for reporting, investigating, evidence collecting, etc. The Act also provides for special courts to deal with such matters.
PRIMARY FEATURES OF POCSO ACT, 2012
- The Act is a statute comprising of 46 sections.
- The whole Act regards the best interest of child as a matter of chief importance and aims to aid in healthy physical, mental, and social development of child.
- The Act is gender neutral but at the same time ensures to cover all the aspects that only specified group of gender could face. For example- dealing with pregnancy of female child as a result of any sexual activity that is an offence according to the Act.
- The Act defines child as any person below the age of eighteen years [Section 2(d)].
- Section 2 of the Act defines all the central terms like sexual assault, child pornography, penetrative sexual assault, etc. which are taken from other statutes like Indian Penal Code, 1860, etc.
- The Act also deals with the matter of child pornography and circulation and possession of digital content of such activities as well.
- The Act prescribes for a child-friendly reporting and investigating system. At every step, mental condition of the abused child is given an extreme and yet much-needed devotion. Section 24 of the Act deals with recording of statement of the abused child, which clearly says:
(1) The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector.
(2) The police officer while recording the statement of the child shall not be in uniform.
(3) The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.
(4) No child shall be detained in the police station in the night for any reason.
(5) The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.
- Special juvenile police unit as well as the local police are authorized to take reports of child sexual abuse, under this Act.
- The Act designates special courts to try the matters of child sexual abuse. Section 28 (1) of the Act states:
“For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act.”
OFFENCES COVERED UNDER THE ACT
- Penetrative sexual assault-
According to section 3 of the Act, a person is said to commit ‘penetrative sexual assault’ if he penetrates or manipulates any part of the child’s body so as to penetrate his penis, or any other object into the vagina, mouth, urethra or anus of the child, or makes the child do so with him or any other person.
He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
- Aggravated penetrative sexual assault-
A person commits aggravated penetrative sexual assault if the person who commits penetrative sexual assault is a (an)-
- Police officer, in course of his duty or otherwise.
- Member of armed or security forces, in course of his duty or otherwise.
- Member of the management or the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force.
- Member of the management or is a staff of a hospital, whether Government or private, an educational institution or religious institution or any institution providing services to the child.
- Person using deadly weapons, fire, heated substance or corrosive substance or causing grievous hurt to the sexual organs of the child.
- Person who incapacitates or causes the child to become mentally ill as or causes impairment of any kind after sexually assaulting the child.
- Person who makes a female child pregnant as a consequence of sexual assault, or knows that the girl is pregnant
- Person who inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection or, Causes death of the child, or attempts to murder the child.
- Person who commits the assault by taking advantage of a child’s mental or physical disability, or more than once or repeatedly, or below twelve years.
- A relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child.
- Person committing in the course of communal or sectarian violence or during any natural calamity or in similar situations.
- Person is previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or
- Person who makes the assaulted child to strip or parade naked in public.
- Sexual assault-
Whoever, with sexual intent touches or makes the child touch the vagina, penis, anus or breast of the child or such person or any other person respectively, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
- Aggravated sexual assault-
A person commit aggravated sexual assault if-
The provisions of aggravated penetrative sexual assault are contented. (The conditions are same for both, where the only difference is between penetrative sexual assault and sexual assault.)
He induces or coerces a child to get administered any drug or any chemical substance, to a child with the intent that such child attains early sexual maturity.
- Sexual harassment-
A person commits sexual harassment, under this Act, upon a child when such person with sexual intent-
(i) Utters any word, or makes any gesture or exhibits any object or part of body with the intention to be heard or seen by the child.
(ii) Makes a child exhibit his body or any part of his body so as it is seen by such person or any other person.
(iii) Shows any object to a child in any form or media, or entices the child or gives gratification for pornographic purposes.
(iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) Threatens to use, in any form of media, a real or fabricated, of any part of the body of the child or the involvement of the child in a sexual act.
PUNISHMENT FOR OFFENCES COVERED UNDER THE ACT
Penetrative sexual assault- Imprisonment not less than ten years which may extend to imprisonment for life, and fine.
Aggravated penetrative sexual assault- Imprisonment not less than twenty years which may extend to imprisonment for life, and fine.
Sexual Assault- Imprisonment not less than three years which may extend to five years, and fine
Aggravated sexual assault- imprisonment not be less than five years which may extend to seven years, and shall also be liable to fine.
Sexual Harassment of the Child- Imprisonment of three years and fine.
Use of Child for Pornographic Purposes- Not less than Five years and fine and in the event of subsequent conviction, seven years and fine.
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)
- Aggravated penetrative sexual assault: Not less than 20 years and fine.
- Sexual assault: Not less than three years which may extend up to five years.
- 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 in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court-
imprisonment of either up to 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.
There are others provisions under the Act that prescribes the methods of reporting, investigating, handling of evidences, and court trails. The Act also instructs the State Governments to establish special courts for such cases. The Act also provides for punishment for the crime of abetment. Punishment has also been provided for making false complaint or proving false information with malicious intent. The Act has identified and criminalized a range of unacceptable sexual behaviors that pose a threat to children. But to overcome and eradicate this issue from the grassroots level, legal awareness of this issue is the key.
The Protection of Children from Sexual Offences Act, 2012.