The Protection of Children Against Sexual Offences Act[1] (Hereinafter referred to as POCSO) was enacted in 2012 to provide a robust legal framework for the protection of children. The legislation aims to safeguard children from offences of sexual assault, sexual harassment, and pornography and to form special courts for the trial of all the offences enumerated in the act.

This paper will elucidate the essence of the act. The other thing is that, though the act came up with the alarming state on time, there are challenges and fallibility that will be addressed in this paper. Landmark case-laws have been discussed to procure valuable acumen of the act. There is also a comparative study of this act with the countries that report high child sexual cases. Captiousness and criticism have been mooted at dusk with a valedictory statement.

Introduction
Child sexual abuse can be defined as sexual activity by an adult, adolescent, or older child with a child. This act is gender neutral, as the child has been described in Section 2(d)[2] as any person below the age of eighteen years of age. It is considered a very heinous and despicable crime all over the globe. The United Nations Convention on the Rights of the Child[3] is the foremost convention in the international arena, with the focal purpose of safeguarding the best interest of children. It mandated signatory states to take all possible measures to prevent child sexual abuse. India became a member of this convention after signing on December 11, 1992.

The National Commission for Protection of Child Rights (NCPCR) was constituted under the Commission of Protection of Child Rights, 2005[4] exclusively for the protection of child rights. The Indian Government enacted POCSO Act in 2012 under Article 15 (3)[5] of the Indian Constitution. It was enacted due to the increase in the number of child abuse cases, and there was also an absence of stringent laws. The act encompasses provisions that is necessary for the holistic development of the child during judicial procedures.

The Right to privacy and confidentiality must be preserved, as it is of paramount importance to ensure the social growth of the child. Although there are various progressive provisions in this act, the implementation of this act faces various difficulties. Underreporting, a low conviction rate, the formation of the special POCSO court, ambiguous relationship between consensual and forced sexual violence are some of the challenges. The Act was amended in 2019 to provide stringent punishments. POCSO Rules 2020 also made some amendments to the act.

Data Analysis

The aim to consolidate the data on child sexual abuse is to assist the readers to realize the enormity of cases in India. In 2007, the Ministry of Women and child development conducted survey in which it was found out that 50% of surveyed children had been through some kind of sexual abuse. According to NCRB Crime in India, 2011[6], a total of 33,098 cases of crime against children were reported as compared to 26,694 cases in 2010. Under this, rape cases amount to 7,112 cases as compared to 5,484 rape cases in 2010. Other crime includes kidnapping and abduction, murder, foeticides.

In 2012, a total of 38,172 cases was registered against children. It includes 8,541 cases of rape[7]. In 2013, the number of cases increased drastically. A total of 58,224 cases against children was registered out of which 12,363 cases were of rape[8]. This shows that after implementation of POCSO Act, crime against children increased due to the expanded definitions in the Act.

After nearly decade in 2022, a total of 63,414 incidents related to crimes against children were reported in 2022. A total of 38,444 victims were registered under sections 4 and 6 (punishment for penetrative sexual assault), a surge compared to 33,348 in 2021. It shows that the crimes against children have been increasing. It is evident that there are some sort of shortcomings which led to the increase in cases[9].

Features of the POCSO Act, 2012

Expansion of the term 'rape'
The definition of "rape" under the Indian Penal Code, 1860 (IPC)[10] was expanded to include penetration of the child's specified orifices by various body parts and objects and was renamed "penetrative sexual assault" following the passage of the POCSO Act.

Gender neutral Provision
The POCSO Act's lack of gender-based discrimination against both of the perpetrators and the victims is another striking aspect of it. This fixes one of the main issues with the provisions of the Indian Penal Code. Anybody under the age of eighteen is considered a child[11], and in a number of instances, courts have even found women guilty of sexually abusing minors.

Mandatory reporting of Cases under POCSO Act
Cases of sexual assault occur behind closed doors, and because these crimes are stigmatized, the elders try to conceal these instances. Thus, to ensure that the POCSO Act is implemented correctly, Sections 19 to 22 of the POCSO Act require third parties who are aware of or apprehend such offenses to report these instances. These regulations were created with the presumption that society has a responsibility to defend children's interests because children are weak and defenseless. in the case of Nar Bahadur v. State of Sikkim[12], teachers received information that her student is pregnant due to repeated sexual assualts on her by an elderly accused. The teachers informed the panchayat who lodged an FIR in the police station.

Privacy of the victim
The POCSO Act's Section 23 outlines the media process and requires that the identity of the child victim be kept private unless the Special Court has approved disclosure. In the case of Bijoy@ Guddu Das v. The State of West Bengal[13], the Calcutta High Court reiterated the law made under Section 23 and declared that any person including a police officer shall be prosecuted if he/ she commits such a breach.

Formation of Special Courts
Chapter VII of the POCSO Act provides for the formation of the special court in each district for the speedy trial of the cases. However, implementation of this provision is underway. On June 6, 2024, the Supreme Court gave the Centre 60 days to set up a special court under the Protection of Children from Sexual Offenses (POCSO) Act, 2012 in each district where there are at least 100 pending cases[14].

Cross-check for implementation of the Act
Under section 44 of the act, provisions are there which that will ensure that the act is implemented. NCPCR or state commission for protection of child rights constituted under Commission for Protection of Child Rights Act, 2005[15] will act as observer and track for the implementation of the provisions in the act.

Challenges in the Act

• Underreporting: It is one of the major concerns that child sexual cases go underreported. Approximately 28.9% of all children experienced some form of crime in 2020, according to NCRB data, while only 65.6% of all crimes are reported. In a recent case of Pintu Das v. State Govt of NCT of Delhi[16], the Delhi High Court observed that by taking a strong stance against child sexual harassment, the judiciary not only ensures that cases are treated with the highest seriousness but also encourages victims and their families to report such crimes and lessens the stigma attached to seeking justice.
   
• Ambiguity in position of Consensual Cases: POCSO Act does not differentiate between sexual acts among consensual minors and sexual acts between minor and adults. Consensual teenage sex is becoming increasingly widespread in big cities these days. Despite this, the law still believes that changing the legal age of consent to sex is not necessary.
  
  Therefore, criminalizing everyone below the age of 18 is very problematic. In the case of K.S. Puttaswamy v. Union of India[17], it has been held that consensual sexual acts considered as crime violate the right to privacy of Minors. In a recent case Balaji @ Panai Balaji v State[18], Madras HC while quashing the POCSO case against 21-year-old accused observed that the case was kind of Romeo and Juliet which successfully ended with a marriage.
   
• Lack of Special Courts: Under section 28 of the POCSO Act[19], special courts to be established for the purpose of speedy trial. In July 2019, the Supreme Court took up the matter of pending cases and issued a number of directives, one of which asked for the creation of special courts in every district across the nation where more than 100 POCSO Act petitions had been filed. Only POCSO Act-related cases were to be heard by these courts.

Judicial Decisions
Beyond the IPC, the POCSO Act offers specific protection to underage victims. The POCSO Act's goals are to recognize minors' vulnerability and shield them from sexual assault and harassment. There have been various cases under POCSO Act. The very first conviction under POCSO Act was of 55-year-old man who molested 10-year-old mentally challenged girl. The accused was convicted under section 7 and 8 of the act. He was given a 5-year rigorous punishment and fine of 5,000. Few cases have been elucidated briefly.

Satish Ragde v. State of Maharashtra, 2020[20]
Facts: Satish Ragde who is accused in this case tried to commit sexual assault against a 12-year-old girl. The accused groped the breast of the minor girl with her clothes on. Then, he tried to draw out the salwar of the girl. Meanwhile, he was intruded by the girl's mother and the accused failed in removing the salwar. Minor girl narrated the whole incident to her mother. Then, the matter was reported to the police. The police filed chargesheet of the incident before the special court as the case fall under POCSO Act. Special Court convicted accused for 3 years of rigorous imprisonment with fine of 5,000. Accused approached Bombay High Court.

Bombay High Court held that the groping of breast of minor girl did not fall under section 7 of the POCSO Act. Section 7 of the act describes sexual assault. Bombay HC set aside the order of special court and gave 1 year imprisonment with a fine of 500. Justice Ganediwala of Nagpur Bench of Bombay High Court interpreted "touches" of section 7 as 'Skin-to-skin contact' for the application of this section. Bombay High Court interpreted the provision in a manner which does not fulfil the intent of the legislation. This verdict created huge controversy because of its interpretation. Child Right Activist and netizens criticized this judgment. After this, the judgment was challenged in Supreme Court. SC quashed the Bombay HC judgment stating that the most important requisite for constituting offence under section 7 of POCSO Act is sexual intent and not the skin-to-skin contact[21].

Nawabuddin v. State of Uttarakhand, 2022 [22]
Facts: The accused aged 65 years lured the victim and taken the girl behind the bushes. He removed his clothes as well as victim's clothes. He penetrated his fingers into the vagina of 4-year-old girl. He was in the process of raping the victim, but some people spotted him naked behind the bush and caught him red handed. Subsequently, he was handed over to the police. After this, the victim girl felt pain and irritation around her vagina. And there was swelling also in that area. Victim girl narrated the whole incident to the doctor and also it was examined medically. Thus, the case falls under section 3(b) and section 5(m) of the Act. Therefore, it was open and shut case before the court of law.

The court composed of MR. Shah and BV Nagarathna, J.J. has noted that any act of sexual assault or harassment directed towards children should be taken extremely seriously. All such offenses must be prosecuted strictly, and those found guilty under the POCSO Act should not be granted any leniency. The Court noted that social ideals have been compromised and confidence has been broken in this case.

As a result, the Court believed that the accused did not merit pity or forgiveness in and of themselves. Nonetheless, at the relevant period, Section 6 stipulated that the offense carried a ten-year jail sentence, with the possibility of a life sentence. Given that the accused is currently between the ages of 70 and 75 and is afflicted with tuberculosis (TB), the court determined that if the life sentence is reduced to fifteen years of probation and the fine that the Trial Court imposed is upheld by the High Court, it can be considered a suitable punishment appropriate for the offence that the accused committed[23].

Comparative Analysis
It becomes crucial to have a quick review of the statutes and provisions governing Child Sexual Abuse in the foreign nations in order to gain a thorough understanding of the provisions of Indian law. Internationally, child sexual abuse is regarded as one of the most horrible crimes against children, and each country has its own set of laws pertaining to minors that are specific to its local jurisdiction.

Every nation has a different definition of sexual abuse against minors, hence the following lists the nations with high and low rates of sexual abuse against children, along with the legislation that each has put in place to prevent it.[24] A few countries' current positions have been discussed here.

• South Africa: Of the top five nations in the world, South Africa has the highest rate of child sexual abuse. According to studies, a child experiences sexual abuse every three minutes. Sexual offenses against children in South Africa are covered in Chapter 3 of the Crimes (Sexual Offence and Related Matters) Act, 2007. To safeguard minors, the nation's Supreme Court has made it very clear that an accused person cannot, following a conviction, go through public areas.
   
• United Kingdom: The United Kingdom has the highest rate of child sexual abuse—that is, 1 out of every 20 children has experienced sexual abuse. The National Society for the Prevention of Cruelty to Children (NSPCC) reports that there were about 37,600 cases of child sexual abuse reported in their 2011–2012 report. In the UK, child sexual abuse is addressed by the Sexual Offences Act, 2003.
   
• Germany: Compared to many other nations, Germany offers children greater protection due to the numerous laws and regulations that it adheres to. It has what may be the best child protection legal system in existence. While Section 176 of the German criminal code states that children under the age of 14 are DOLI INCAPAX and are incapable of giving consent for sexual activities, Section 174 of the German criminal code stipulates that having sex before the age of 18 is also punishable in some situations. However, if a minor who is older than 16 consents to it, it won't be deemed void.

Conclusion
In India, over 19% of all children worldwide, or 42% (more than one-third) of India's entire population, are born here. Child sexual cases are a major concern all over the world. India is ranked 15th out of 60 nations in the Economist Impact Policy think tank's Out of the Shadows Index for readiness to address child sexual abuse. When it came to protective laws, India was in the top five[26].

However, there are some challenges that should be addressed by all three organs of the government. The Law Commission of India recommended to amend the consent age under The POCSO Act from 18 to 16. The Pendency of cases is another issue that should be investigated by the Judiciary. The Right to a speedy trial is considered as the fundamental right in many constitutional court verdicts.

Legislation cannot be successfully and efficiently implemented without the dedicated and well-coordinated efforts of the implementing authorities. This calls for a multipronged approach, and it is the duty of state governments, law enforcement agencies, courts, and medical associations to uphold the law in its entirety and react to these circumstances in a prompt, considerate, and compassionate manner.

End Notes:

1. The Protection of Children from Sexual Offences Act, 2012 (32 of 2012)
2. Ibid, s.2(d)
3. The United Nation Convention on the Rights of the Child, 1989
4. The Commissions for Protection of Child Rights Act, 2005 (4 of 2006)
5. The Constitution of India, art. 15(3)
6. National Crime Records Bureau, "Crime in India 2011" 89 (2011)
7. National Crime Records Bureau, "Crime in India 2012" 89 (2012)
8. National Crime Records Bureau, "Crime in India 2013" 89 (2013)
9. National Crime Records Bureau, "Crime in India 2022" 327 (2022)
10. The Indian Penal Code, 1860 (45 of 1860) s.375
11. Supra note 2
12. 2018 SCC OnLine Sikk 28
13. (2017) 2 Cal LJ 224
14. Set up special courts for Pocso cases: SC, available at: Set up special courts for Pocso cases: SC | Latest News India - Hindustan Times (last visited on July 6, 2024)
15. Supra note 4
16. Pintu Das v. State Govt of NCT of Delhi, CRL.A. 192/2024 & CRL.M.(BAIL) 380/2024
17. AIR 2018 SC (SUPP) 1841
18. Balaji @ Panai Balaji v State, 2024 LiveLaw (Mad) 217
19. Supra note 1, s.28
20. Satish Ragde v. State of Maharashtra, Criminal Appeal No. 161 of 2020
21. Attorney General for India v. Satish and others, (2022) 5 SCC 545
22. Nawabuddin v. State of Uttarakhand, 2022 LiveLaw (SC) 142
23. POCSO Offenders Deserve No Leniency; "A Message Must Be Conveyed To The Society At Large": SC, available at: POCSO Offenders Deserve No Leniency; "A Message Must Be Conveyed To The Society At Large": SC | SCC Times (scconline.com) (last visited on July 5, 2024)
24. Here's How Every Country Ranks When it Comes to Child Abuse and Child Safety, available at: Global Child Abuse, Violence, Safety | Rankings By Country (undispatch.com) (last visited on July 6, 2024)
25. Child Sexual Abuse: Top 5 Countries With the Highest Rates, available at: Child Sexual Abuse: Top 5 Countries With the Highest Rates | IBTimes UK (last visited on July 5, 2024)
26. Amrita Madhukalya, "India ranks 15th in policies, practices against child sexual violence", Deccan Herald, September 25, 2022.

Written By:

• Rizwan Ahmed, 3rd Year Law Student at Faculty of Law, Jamia Millia Islamia, New Delhi. and
• Syed Umar Asdaque, 3rd Year Law Student at Faculty of Law, Jamia Millia Islamia, New Delhi.