A special court at Dhubri for the exclusive trial of cases under the Protection of Children from Sexual Offences (POCSO) Act convicted and sentenced a 27-year-old man with rigorous imprisonment for life for raping a 10-year-old minor girl.
Protection of Children from Sexual Offences (POCSO) Act
- The POCSO Act was enacted to protect children from sexual offences.
- The Act has been enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the 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.
Provisions of the POCSO act
The POCSO Act was enacted to protect children aged less than 18 from sexual assault sexual abuse, sexual harassment, and pornography.
- The act mandates that investigation in the cases is to be completed in two months (from the date of registration of FIR) and trial in six months.
- The Act defines a child as any person below eighteen years of age.
- POCSO states a sexual assault is to be considered aggravated if –
- The abused child is mentally ill or,
- When the abuse is committed by
- A member of the armed forces or Security forces
- A public servant
- A person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital, whether Government or private.
- It prescribes rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also a fine as punishment for aggravated penetrative sexual assault.
- It also makes provisions for avoiding the re-victimization of the child at the hands of the judicial system.
- The Act also makes it mandatory to report such cases. It makes it the legal duty of a person aware of the offence to report the sexual abuse. In case he fails to do so, the person can be punished with six months imprisonment or a fine.
- It also prescribes punishment to the people who traffic children for sexual purposes.
- The Act also provides for punishment against false complaints or untrue information.
- The act was amended in 2019 to increase the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
- Aggravated penetrative sexual assault under POCSO Act, 2012 is the equivalent provision for aggravated rape.
- A person can be charged with this offence in certain aggravating circumstances, such as if the rape occurs within a relationship of trust or authority, or if it leads to pregnancy, among others.
- Under POCSO, the consent of a person under the age of 18 is irrelevant, regardless of the nature and circumstance of the sexual interaction, or the particulars of the person with whom it takes place. This means that any sex with a minor is rape.
Key features of the Act
It is a gender-neutral act
By defining a child as ‘any person below the age of 18 years, the POCSO Act sets a gender-neutral tone for the legal framework available to child sexual abuse victims. The act also does not distinguish between perpetrators of child sexual abuse on the grounds of gender.
It is an offence to not report an abuse
It requires every person who suspects or has knowledge of a sexual offence being committed against a child to report it to the local police or the Special Juvenile Police Unit. The act not only punishes the perpetrator of sexual abuse but also penalizes those who have failed to report the offence with either imprisonment, a fine, or both.
No time limit for reporting abuse
A victim can report an offence at any time, even several years after the abuse has been committed. Therefore, organizations dealing with children in India cannot deny child sexual abuse complaints filed against their employees on the pretext of a lapse of time.
Confidentiality of victim’s identity
Section 23 of the POCSO Act prohibits disclosure of the victim’s identity in any form of media, except when permitted by the special courts established under the act. A violation of this section can attract punishments under the act.
- Multi-layered Problem: Child sexual abuse is a multi-layered problem which negatively impacts children’s physical safety, mental health, well-being and behavioural aspects.
- Amplification Due to Digital Technologies: Mobile and digital technologies have further amplified child abuse and exploitation. New forms of child abuse like online bullying, harassment and Child Pornography have also emerged.
- Ineffective Legislation: Although the Government of India has enacted the Protection of Children against Sexual Offences Act 2012 (POCSO Act), it has failed to protect children from sexual abuse. The reasons for this can be the following:
- Low Conviction Rate: The rate of conviction under the POCSO act is only about 32% if one takes the average of the past 5 years and the percentage of cases pending is 90%.
- Judicial Delay: The Kathua Rape case took 16 months for the main accused to be convicted whereas the POCSO Act clearly mentions that the entire trial and conviction process has to be done in one year.
- Unfriendly to Child: Challenges related to age-determination of the child. Especially laws that focus on biological age and not mental age.