ABSTRACT
Since its independence, India has experienced tremendous growth and development in infrastructure, economy, and legal systems. Year by year, new laws have been introduced, old ones have been repealed, and existing ones have been amended to meet current needs. A prime example is the recent introduction of the Bhartiya Nyaya Sanhita, which has replaced the Indian Penal Code. However, amid these achievements lies a grim reality that brings not pride but shame: Child Sexual Abuse.
India prides itself on the belief that children will carry forward its legacy. Yet, the alarming rise in child sexual abuse cases starkly highlights that our children are not safe. At the tender ages of 4, 12, or 16, they endure brutality no one should ever face. When such atrocities occur, it signifies a profound failure of our society. All forms of development are meaningless if we cannot ensure the safety of those for whom we are building the future.
This paper delves into the legal aspects of the Protection of Children from Sexual Offences (POCSO) Act. The said Act is a landmark legislation designed to safeguard children from sexual assault and harassment. It prioritizes the well-being of children by setting guidelines on reporting, documenting evidence, investigating, and trying cases in designated special courts, ensuring that the child experiences minimal discomfort.
KEYWORDS
POCSO, Child Sexual Abuse, Legal Provisions, Punishments, Offences
INTRODUCTION
In the realm of crime, some offences are considered more heinous and disgraceful than others due to their profound impact on both victims and society. Among these, child sexual abuse stands out as particularly egregious. Any abuse done to a child does not compulsorily leave physical scars but surely wounds the mind, soul, and spirit irreparably. Children—whether boys, girls, or transgender—often cannot articulate the agony they endure. This is not only due to fear but also because they may not fully understand what is happening to them or why it is wrong.
To guarantee the all-encompassing safety of children, the Government of India introduced the landmark Protection of Children from Sexual Offences (POCSO) Act of 2012. This vital legislation is meticulously crafted to shield children from heinous crimes such as sexual assault, sexual harassment, and pornography. Scrutinizing the impact of this act on improving child safety is imperative and is, thus, a critical area of inquiry.
Children constitute 39% of India’s population, totalling 431,053,833, which also represents 19% of the world’s child population. Given children are considered the future of any nation, their safety must be one of the utmost concerns of the nation. However, according to the NCRB data, 64,469 victims were reported in 2022 under the POCSO. The State of Uttar Pradesh saw the worst statistics which was 22 cases per day.
As per the POCSO Act, 2012, anyone under the age of 18 is considered a “child.”
The POCSO Act is based on the Universal Declaration of Children’s Rights, also known as the United Nations Convention on the Rights of the Child (UNCRC) which was adopted without any opposition by the UN General Assembly on November 20, 1989. It is also grounded in the Integrated Child Protection Scheme (ICPS) introduced by the Ministry of Women & Child Development, Government of India, in 2009.
This particular paper aims to analyse the implications and effectiveness that the POCSO Act has in the practical world. It also explores various landmark judgments that have set precedents for generations to come.
RESEARCH METHODOLOGY
The research for this descriptive paper on the implications and effectiveness of the POCSO Act, 2012, relies on secondary sources. These sources comprehensively examine the act’s operations and its impact on efforts to curb offences against children. Secondary research involves utilising data collected by others, relying on pre-existing information. The process includes establishing the topic, gathering sufficient data, comparing data from multiple sources, and analysing the findings. This study uses secondary sources such as newspapers, online platforms, articles, research papers, e-newspapers, and government statutes and guidelines.
REVIEW OF LITERATURE
- Evolution of POCSO Act in India: Challenges Ahead by Momota C Bhattacharya:
This article focused on the basic origin of the POCSO Act. It gave insights into what led to the evolution of this Act. It also highlighted why the IPC, ITPA, and JJ Act were inadequate and insufficient.
- Protection of Children from Sexual Offences (POCSO) by National Human Rights Commission, India, 2021
This booklet provides all the information necessary to understand all the concepts of the POCSO Act explained more readily.
- Important Judgements under The Protection of Children from Sexual Offences (POCSO) Act by Bhatt & Joshi Associates
This article gave insights into various landmark judgements that played a crucial role in the progress and evolution of this Act.
ORIGIN OF THE POCSO ACT, 2012
Historically, children were seen as “small adults,” with no special rights. Post-World War II, the UN established UNICEF on 11 December 1946, revolutionizing child protection. UN General Assembly adopted the Declaration of the Rights of the Child in 1959, which led to the UN Convention on the Rights of the Child in the year of 1989, the first binding international instrument for children’s rights.
India ratified UNCRC in December 1992, and by 2011, 191 out of 193 countries had signed the International Charter of Child Rights. It is described as the “cornerstone of a new moral ethos for children,” emphasizing freedom, justice, and dignity. The Indian Government submitted its first Country Report on the CRC in February in the year of 1997.
In our country, child sexual abuse (CSA) was long ignored by public discourse and the justice system of crimes, with rape being the only one to be recognized sexual offence against children.
In the year of 2009, the “Integrated Child Protection Scheme (ICPS)” was introduced by the Ministry of Women & Child Development to create an effective as well as efficient system for child protection. Rooted in the principles of “child rights protection” and “the best interests of the child,” the ICPS seeks to assist all children, especially those in challenging situations, by integrating various existing child protection initiatives into a single centrally sponsored program. The ICPS particularly targets children requiring care and protection, as well as those who are in conflict with the law. This movement led to the enactment of the infamous Protection of Children from Sexual Offences (POCSO) Act in 2012.
Prior to 2012, CSA was addressed through the Indian Penal Code (IPC), Juvenile Justice (Care and Protection of Children) Act (JJ Act), and Immoral Traffic (Prevention) Act (ITPA), which were inadequate. The IPC was gender-specific, the ITPA focused only on child prostitution, and the JJ Act lacked explicit penal provisions for CSA. The POCSO Act was enacted to provide comprehensive legal safeguards against CSA.
LEGAL ASPECTS OF THE POCSO ACT
The Act was enacted by the Ministry of Women and Child Development on 14th November 2012, to address child sexual abuse and exploitation with stringent legislative measures. Notably, this is a gender-neutral law that promotes victim-friendly prosecution and extends its abetment provisions to those involved in child trafficking for sexual purposes.
The POCSO Act safeguards children from sexual harassment, sexual assault, and pornography, ensuring their best interests are prioritised throughout the legal process. This is achieved through a child-friendly approach to reporting, evidence documentation, investigation, and trial in designated special courts. The Act defines and penalises six distinct sexual offences which are: penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, sexual assault causing great bodily harm, sexual harassment, and the use of a child for pornographic purposes. Throughout all phases of the legal process, the Act ensures a child-friendly environment, with the child’s best interest as the top priority.
Penetrative Sexual Assault and Punishment Therefor
As per Section 3, a person is said to commit “penetrative sexual assault” if they:
- Penetrate their penis into the mouth, vagina, urethra, or anus of a child or coerce the child to do so.
- Insert any object or part of the body, other than the penis, into the vagina, urethra, or anus of the child.
- Manipulate any part of the child’s body in order to cause penetration.
- Apply their mouth to the child’s genitalia or force them to do so.
Punishments under Section 4 include:
- Imprisonment for at least ten years, extendable to imprisonment for life, and a fine.
- In case of the victim being below sixteen years, imprisonment for at least twenty years, potentially for life, as well as a fine.
Aggravated Penetrative Sexual Assault and Punishment Therefor
As per Section 5 of the Act, sexual assault or penetrative sexual assault becomes aggravated when committed by certain authorities or in specific circumstances, such as by police officers, armed forces, public servants, institution staff, using dangerous weapons, causing severe harm or disability, repeated assaults, assaults on children under 12, by relatives, or during communal violence. Aggravated offences result in harsher punishments.
Punishments under Section 6 include:
- Rigorous imprisonment for at least twenty years, potentially extending to imprisonment for life and a fine.
- In some cases, the death penalty may be applicable.
Sexual Assault and Punishment Therefor
According to Section 7 “sexual assault” is touching the vagina, anus, penis or breast of a child with a sexual intent, or making the child touch these parts.
Punishments under Section 8 include imprisonment for three-five years as well as a fine.
Aggravated Sexual Assault and Punishment Therefor
Section 9 outlines when child sexual assault is considered aggravated, including cases involving police, armed forces, public servants, gang assaults, use of weapons, repeated offences, assaults on children under 12 or with disabilities, relatives, and authority figures, among others.
Punishments under Section 10 include imprisonment for five-seven years and a fine.
Sexual Harassment and Punishment Therefor
Section 11 defines “sexual harassment” as acts such as using sounds, words, or gestures with sexual intent, forcing a child to display their body, showing pornographic material, or repeatedly following or contacting the child.
Punishments under Section 12 include imprisonment that is up to three years as well as a fine.
Using Child for Pornographic Purposes and Punishment Therefor
Section 13 criminalises the use of children for pornographic purposes, including creating, producing, distributing, or facilitating pornographic material involving children.
Punishments under Section 14 include:
- Imprisonment for at least five years and a fine for first-time offenders.
- Imprisonment for at least seven years for repeat offenders.
- Additional penalties for other related offences.
Section 15 addresses the storage of child pornographic material, with penalties ranging from fines to imprisonment, depending on the intent and commercial purpose of the storage.
Confidentiality
To protect the child’s identity, no reports or comments about the child should be made in any media without full and accurate information. Violations can result in imprisonment for six months-one years and/or a fine.
False Cases
In case one makes a false complaint or provides false information about an offence under POCSO can lead to imprisonment which is a maximum of six months and/or a fine. If the false complaint targets a child, imprisonment can extend to one year. Children who make false complaints are not punished under the law.
Mandatory Reporting of The Offence
Anyone can report an offence under POCSO, and reporting of such incidents is mandatory. In case of failure to report, can result in imprisonment for a period of up to six months and/or a fine. Those in charge of institutions who fail to report offences face up to one year of imprisonment and/or a fine. This obligation extends to those in media, hotels, lodges, hospitals, clubs, and studios. Children are not required to report crimes themselves.
Recording The Statement of The Child
The statement of a child shall be recorded by a magistrate or police officer in the child’s own words, preferably by a woman officer, and in a comfortable location
Special considerations should be made for children with disabilities, involving a special educator or expert, and using audio-visual recording methods where feasible.
Medical Examination of The Child
The child must undergo a medical examination as soon as the offence is reported, preferably by a woman doctor and also while the child’s parents or a trusted person is present over there. Trials are conducted in special courts with special public prosecutors to ensure speedy justice and prevent re-victimization of the child. The identity of the child is protected during trial, and the court may order compensation for the child.
Trial Of Cases
In the cases of penetrative or aggressive sexual assault, the court presumes the accused’s guilt, and the accused must prove their innocence. POCSO cases must be resolved within one year from the report date. The court can also order compensation for the child.
LONG-LASTING EFFECTS OF THE SEXUAL ABUSE ON THE CHILD
Any child who has ever been subjected to any sexual assault or harassment and pornography not only has to endure physical injuries and wounds but also has adverse ever-lasting effects on mental health, confidence, and social life. It is even harder to quantify the damage that is done to these 3 important elements of a person’s well-being.
As per a research review of over 4 million people, namely, Long-term outcomes of childhood sexual abuse: an umbrella review, those who experienced CSA have 2/3 times more chances to experience disorders such as depression, anxiety, post-traumatic stress disorder (PTSD), eating disorder and borderline personality disorder compared to adults who were not abused.
Children who have experienced sexual abuse during preadolescence meet the full criteria for a diagnosis of posttraumatic stress disorder (PTSD) at rates ranging from 30% to 50%. Additionally, the prevalence rates are approximately 30-40% for depression, 27% for conduct disorders, 14.3% for ADHD, and 5-8% for OCD. A co-twin study revealed that the risk of suicide attempts was significantly elevated among individuals with a history of childhood sexual abuse compared to those without such a history.
LANDMARK JUDGEMENTS
- Attorney General for India v. Satish and another: In this case, the Supreme Court overturned the High Court of Bombay’s ruling that touching a child’s breasts without “skin-to-skin contact” didn’t constitute be molestation case under POCSO. It applied the “mischief rule” for statutory interpretation, emphasizing the necessity for continuous judicial interpretation to ensure justice and effectively mitigate harm. The ruling faced appeals from the National Commission for Women, the Attorney General of India, and the State of Maharashtra.
- Nipun Saxena v. Union of India: In this case, the SC issued guidelines under Section 23 of the POCSO Act which were: no media publication of the victim’s identity, confidentiality for deceased or mentally ill victims unless a judge approves, sealed FIRs and documents, victims can appeal without disclosing identity, authorities must keep identities confidential, and States/UTs must establish ‘One-Stop Centres’ in each district within a year.
- Balaji Sarjerao Kamble v. State of Maharashtra (2017): The High Court of Bombay ruled that a victim’s testimony cannot be disregarded due to unspecified crime dates, especially for a child victim. The conviction of the appellant under Sections 4 and 8 of POCSO and Section 376 of IPC was upheld, but the 7-year sentence and fine under Section 376 IPC were quashed.
SUGGESTIONS
Even though the laws in India are regularly updated to reflect societal changes, there is always room for improvement. Based on extensive research, case studies, and judicial decisions, the following suggestions aim to enhance child protection laws:
- Appointment of a support person compulsorily in all the cases:
The Supreme Court observed that in 96% of child abuse cases, victims did not have a support person. A support person assists the victim throughout the legal process and can be someone involved in child rights, an official from a children’s home, or an employee of the District Child Protection Unit. Such support is crucial as it helps manage the child’s sensitive situation effectively. In We The Women Of India vs. Union of India, Justices S Ravindra Bhat and Aravind Kumar emphasized that the need for a support person should not be discretionary but mandatory.
- Appointment of more female doctors:
As stated in Section 27(2) of the POCSO Act, a female doctor must be the one conducting the medical examination in cases involving a female child. This requirement poses challenges when a female doctor is unavailable.
- Awareness should be spread regarding sensitivity:
Many child abuse cases go unreported due to the fear of social stigma. Families often avoid reporting to escape public shame and embarrassment. It’s crucial to spread awareness that the victim is never at fault, and the perpetrator should be the one ashamed. Public awareness campaigns can encourage families to report abuse without fear of social consequences.
- Treating the irregularities in the personal law:
In India, child marriage is banned under secular law; however, it is permitted under personal law. This creates complications within the POCSO Act, of 2012, as both child marriage and the consummation of child marriage are deemed illegal.
- Getting a clear picture for consent regarding the medical examination:
The Act is silent on situations where a child refuses a medical examination but the investigating officer insists on it. Clear guidelines should be established, emphasizing that treatment must commence immediately to protect the child’s life, even if there is a consent issue.
- Lowering the current age of consent to 16 years from 18 years:
This Act does not currently consider adolescent sexuality, treating both parties in adolescent relationships as offenders and victims. This can lead to misuse of the law, often influenced by caste or religious biases, denying adolescents bodily autonomy. Chief Justice D.Y. Chandrachud has urged the legislature to reconsider the age of consent under this Act. An amendment to decriminalize consensual acts between adolescents aged 16-18, while protecting them from non-consensual acts, is necessary to reflect the realities of adolescent development.
CONCLUSION
Whenever a child is born, the first thing often said is, “This child is the future of our family.” When prominent figures speak, they proclaim children as the future of the country and the world. It is, therefore, the duty of every person everywhere, irrespective of age, caste, religion, or nationality, to ensure that no child is ever unsafe. Acts like sexual assault, harassment, or involving a child in any pornographic activity must be eradicated from society. The trauma inflicted by such acts can never truly heal. Victims face public humiliation, self-doubt, low self-esteem, and more—burdens that no child should ever have to bear.
It is not solely the responsibility of the authorities to address this issue; individuals must also take action. If everyone vows to reject such acts, these issues will cease to exist. We must remember that these actions carry not only legal consequences but also jeopardize a child’s entire life. A child might not understand the concept of being violated and may end up blaming themselves, leading to self-hatred. Everyone must ensure that children understand the basics of good and bad touch as well as most importantly feel empowered to speak up if something inappropriate happens.
Despite the multiple successful steps taken toward combating offences against children, much work remains. Issues like the non-appointment of support persons in all cases registered under the POCSO Act, the lack of POCSO Courts in every district, and the debate over setting the age of consent at 18 or 16 persist. These must be resolved for the effective implementation of the Act.
If everyone contributes, we can create a society where fear is no longer a constant companion, and resources are directed toward development rather than wasted on criminals. It is imperative to realize that no nation’s development is meaningful if its children — the future — are not well protected and ensured.
Aastha Garg
University of Petroleum and Energy Studies