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POCSO ACT
Why in News :
- A Nagpur Bench of the Bombay High Court recently ruled that skin-to-skin contact is essential for the infraction of section 7 of the POCSO Act (Protection of Children from Sexual Offences Act, 2012) to occur.
- POCSO was enacted in 2012 to protect young, victimized children (under 18) from sexual assault.
POCSO Act of 2012:
- Child definition: A child is anyone under eighteen years of age for the purpose of this act.
- Forms of abuse: It defines a variety of forms of sexual abuse, such as penetrative and non-penetrative assaults, sexual harassment, as well as pornography.
- Aggravated sexual assault: Sexual assault can be considered “aggravated” in certain circumstances, such as if the victim is mentally ill or if it is committed by a member of the family, a police officer, a teacher, or a doctor.
- Child protectors: As part of the investigative process, the police act as child protectors.
- Sexual offence Section 7: Whoever,
- with sexual intent touches the vagina, penis, anus, or breast of the child or
- makes the child touch the vagina, penis, anus, or breast of such person or
- any other person or does any other act with sexual intent
- Also, any other act with sexual intent which involves physical contact without penetration is considered to be sexual assault.
- Punishments:
- Section 8 of the POCSO Act carries a sentence of rigorous imprisonment of three to five years.
- Imposing the minimum sentence is mandatory => courts do not have the discretion to pass lighter sentences irrespective of any specific circumstances.
- A mandatory sentence is prescribed –
- to underline the seriousness of the offence
- to act as a deterrent to crime
- to remove the scope for arbitrariness by judges using their discretion
- ‘Aggravated penetrative sexual assault’ and ‘Aggravated sexual assault’ - “Aggravated sexual assault” includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others.
Safeguards:
- Prevention of revictimization: the Act makes provisions to prevent re-victimization of the child by the judicial system.
- Recording of testimony: A parent or another trusted adult may be present when the child testifies.
- Professional assistance: When the child is giving evidence, an interpreter, special educator, or other professional may provide assistance.
- Special Courts: To make the process child-friendly it provides for special courts that conduct trials in-camera and without disclosing a child’s identity.
The POCSO (Amendment) Act of 2019:
- Gender neutral: In the act, gender neutrality is aimed at offenses against children.
- Assault by penetration is now defined as the administration of hormonal or chemical substances to children to attain early sexual maturity.
- Child pornography: Consists of any visual depiction of a child engaged in sexually explicit conduct, including photographs, videos, or computer-generated images that can be easily confused with an actual child.
- Capital punishment: It provides for the death penalty for sexual offenses against children.
- Penetrative sexual assaults on children under 16 would be punishable by imprisonment up to 20 years, extending to life imprisonment as well as fines.
- Aggravated penetrative sexual assault: It increases the maximum punishment from death to 20 years of imprisonment for aggravated penetrative sexual assault.
- Government has created over 1,000 fast track courts to expedite the resolution of pending cases under POCSO.
Significance:
- Gender-neutral: It applies to both minor boys and girls as victims of sexual assault.
- Deterrence: Strong penalties incorporated by the amendments are expected to discourage the practice of child sexual abuse.
Challenges:
- Low conviction rate & high pendency: National Crime Records Bureau(NCRB) data of 2016 reveals that the conviction rate is 29.6%, and the pendency rate is 89%.
- Stretched timelines: NCRB indicates that most cases are not handled within a year because of adjournments, lack of police investigation reports, etc.
- Lack of Special Courts: While the act mentions Special Children’s courts, many states did not set up those courts.
- Silence due to fear and social stigma: Despite one in every two children being a victim of child sexual abuse, there continues to be a huge silence. Victims and their families live with a social taboo; they live in fear and predators move around freely.
- There is provision for the death penalty in rape cases under the Act, but the Justice J.S. Verma Committee (created after the Nirbhaya case) and 262nd Report of the Law Commission of India, 2015, both oppose the death penalty.
- Consent: It doesn’t recognize consensual sexual acts among children or between a child and an adult.
- Lack of sensitivity and training: There is apathy of law enforcement agencies for child-related cases. Also there is lack of trained medical or judicial professionals to handle child-specific cases.
- Lack of Monitoring: A major problem in India is the lack of effective monitoring of residential care facilities, orphanages and other children’s institutions.
- Victim oriented law: It is considered a victim-oriented law and not a neutral law.
- This Act does not protect children from all forms of sexual violence.
Conclusion:
- The POCSO Act in itself may become obsolete if the interpretation in the recent judgment becomes the benchmark. A wide range of sexually violative activities would be excluded from its scope because skin-to-skin contact is absent. Hence it is crucial to rectify it.
- It is also important to ensure speedy justice and increase in conviction rates so that more victims come forward to report and the stigma around it is erased.