Children are a crucial element of society and the future of any nation. They play an essential role in shaping a country's cultural, economic, and social fabric. Unfortunately, child sexual abuse is a serious and common problem that many children in India continue to face. Considering this issue, the Indian government enacted the POCSO Act in 2012, also known as the Protection of Children from Sexual Offences Act, to provide a complete legal framework for directing this problem. The POCSO Act is an important step towards protecting children's rights and preventing sexual exploitation. It defines various forms of sexual abuse and prescribes harsh penalties for offenders.

The Act also established special courts to ensure speedy trials and facilitate the rehabilitation of victims. The POCSO Act seeks to create a safe and secure environment for children by making it mandatory for educational institutions, children's homes, and other establishments to implement child protection policies. In conclusion, the POCSO Act is an important Act that aims to protect children from sexual abuse and exploitation. It is an essential tool for safeguarding the rights of children and it ensures their well-being.

The Government introduced the Protection of Children from Sexual Offences (POCSO) Act 2012 to deal with child sexual abuse cases. The Act came into force on 14 November 2012, along with the Rules framed under that. The POCSO Act, 2012 is a Broad law to protect children from the offenses of sexual assault, sexual harassment, and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation, and speedy trial of offenses through allotted Special Courts.

Act defines a child as any person below eighteen years of age and describes different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority, in relation the child, like a family member, police officer, teacher, or doctor.

People who are trafficking children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. POCSO Act also prescribes stringent punishment graded as per the gravity of the offense, with a maximum term of rigorous imprisonment for life and a fine.

History Of The POCSO Act 2012

Before the introduction of the Protection of Children from Sexual Offences (POCSO) Act, the Indian Penal Code (IPC) was unable to provide protection to children from non-traditional forms of sexual abuse, which were distinct from conventional crimes like child trafficking and pornography. The IPC's limitations, combined with the absence of strict laws to address the heinous crimes of sexual exploitation and abuse of children, necessitated the creation of the POCSO Act.

The primary objective of the government establishments responsible for enforcing the POCSO Act is to protect children from a range of sexual offenses, including assault, harassment, and pornography. To achieve this goal, special courts have been set up to try offenses related to child sexual abuse crimes. These courts are equipped with adequate legal machinery and aim to provide swift justice to the victims of such crimes. The POCSO Act is crucial in India's efforts to safeguard children from sexual abuse and exploitation.

The Act outlines different types of sexual offenses against children and offers a strong legal structure for their prosecution, acting refrain against such crimes. Article 15 of the Indian Constitution requires states to protect the children of the country. The United Nations Conventions on the Rights of the Child also provide guidelines for member states to follow in order to secure the best interests of the child.

The Significance Of The POCSO Act (in Indian Context)

The POCSO Act is gender-neutral and prioritizes the child's welfare for physical, emotional, intellectual, and social development. As per the regulations, a child is defined as anyone who has not yet reached the age of 18 and cannot understand the seriousness of the crime he has committed. Sexual abuse can take different forms according to the law, including physical and non-physical assault. Moreover., the law takes into account sexual harassment and pornography.

In particular circumstances, such as when the victim is mentally unwell or when the abuser is a trusted authority figure like a family member, the law considers sexual assault even more severe. It defines "child pornography" as any visual portrait of sexually explicit conduct involving a child, including photographs, videos, digital or computer-generated images distinct from actual children, and illustrations created, modified, or modified to appear to portray a child. (Saman, The need of Pocso Act, n.d.)3

Basic Necessity For The POSCO Act:

1. The main aim of this Act is to protect children from sexual offenses in society. It establishes a special court for the rapid disposal of cases and ensures proper, delicate handling of sensitive matters.
2. The best thing about this Act is that it provides punishment and remedies even when a sexual offense is against a boy and does not recognize discrimination between a boy and a girl. (Saman, POCSO Act, n.d.)

Five Types Of Sexual Offense Which Are Recognized Under The POSCO Act are:

1. Penetrative sexual assault under Section 3: A punishment up to imprisonment of life and shall be punished with imprisonment of either description for a term that shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine under Section 4.
    
2. Aggravated penetrative sexual assault under Section 5: A punishment of rigorous imprisonment for a term which shall not be less than twenty years, but which may be extended to imprisonment for life, and shall also be liable to fine, or with death which is defined under Section 6(1).
    
3. Sexual assault under Section 7 and Section 8: Whoever commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than three years but may extend to five years, and shall also be liable to fine.
    
4. Aggravated sexual assault under Section 9: The punishment for aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine, as described in Section 10.
    
5. Sexual harassment under Section 11: Whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to pay a fine, as prescribed under Section 12.

Children who experience sexual exploitation often suffer from long-term stress issues. To prevent abuse against children, families, parents, relatives, and NGOs can play a significant role in educating them about appropriate and inappropriate relationships, the difference between good and bad touch, and even self-defense in emergencies. Proper education and awareness can help ensure the safety of children.

Pre-Judicial Announcements (Before The POCSO Act):

• Sakshi vs Union of India [26th May, 2004] An NGO called 'Sakshi' filed a writ petition in the interest of the public to stretch the definition of rape in cases involving children. 'Any case where there is the insertion of the male organ into body parts such as the anus or mouth, or insertion of objects into the vagina, constitutes child abuse’. Although the Supreme Court rejected the plea and dismissed the public interest lawsuit, it did provide valuable guidelines for handling rape and child sexual abuse cases.
   
• Bachpan Bachao Andolan vs Union of India [AIR 2011 SC 3361] The Supreme Court received a Public Interest Litigation (PIL) in response to serious violations of children's rights. The petition was particularly filed to prevent child trafficking from Indian circuses, where children are frequently subjected to sexual abuse, violating juvenile law, the Justice Act, and various international agreements.
   
• State of Karnataka vs Manjanna [4th May, 2000] Refusal of Medical Examination of a girl aged about 15 years being a victim due to the police referral being absent. Without the POCSO Act, no regulations were present to take due care and immediate steps to safeguard the victim of sexual assault concerning children.
   

Famous Judgements Impacting POCSO Act:

• Jagar Singh v State of Himachal Pradesh: It was established that the court must adopt the interpretation that favors minors to give out justice in situations with two possible interpretations. The Indian government accepted the Convention on the Rights of the Child on December 11, 1992. The act reflects the guidelines of the Convention, which the United Nations General Assembly adopted.
   
• Jageshwar Wasudeo Kawle v. State of Maharashtra: The judge cancelled a conviction order when she realized there was no clear evidence to support the prosecution's case for rape. As a result, the accused was released of the charges under sections 376(2) of the Indian Penal Code (IPC), 1860, and Section 5, punishable under Section 6 of the POCSO Act, 2012.
   
• Libnus v. State of Maharashtra: According to the ruling of the bench, merely holding hands with a minor or having an open zip of the pants does not qualify as sexual assault under Section 7 of the POCSO Act.
   
• Satish Ragde v. State of Maharashtra: The bench ruled that the act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of 'sexual assault' under Section 7 of the POCSO Act. These judgments of the Bombay High Court concerning the POCSO Act 2012 started making the law unessential.

Procedure For Reporting POCSO Cases

Section 19 of this Act gives information about reporting offenses related to POCSO cases. Sub-Section (1) describes if someone, including a child, believes that a crime under this Act may be committed or has knowledge of such an offense having already been committed, they must report the information to the authorities. It defines that the data must be informed first to the Special Juvenile Police Unit or the local police.

Sub-Section 2 of the law lays down the procedure for reporting any crime or incident to the police. The report must be recorded in writing and given an entry number. It must also be read to the person providing the information and entered in a book maintained by the police unit.

If a child is giving the report, it must be recorded in simple language so that the child can understand it. If the child does not understand the language being used, a trained translator or interpreter must be provided to assist them. If it is found that the child is in need of care and protection, the police unit must make arrangements for their care and protection, such as admitting them to a shelter home or hospital, within 24 hours of the report. The police unit must report the matter to the Child Welfare Committee and the Special Court within 24 hours, including details of the child's need for care and protection and the steps taken in this regard.

It is important to note that no person shall be held liable, whether civil or criminal, for providing information in good faith for the purpose of making a report under Sub-section (1). Section 20 of the law mandates media outlets, studios, and photographic facilities to report any cases of sexually exploitative material or objects involving a child. This includes pornographic or indecent representations of children, regardless of the medium used. Any personnel working in these facilities, regardless of the establishment's size or type, are required to provide such information to the Special Juvenile Police Unit or the local police when they come across such material or objects. Section 21 of the law specifies the punishment for failure to report or record a crime.

Subsection (1) stipulates that any person who fails to report the commission of an offense under Sub-section (1) of section 19 or section 20 or fails to record such an offense under Subsection (2) of section 19, shall be subject to imprisonment for a term of up to six months, a fine, or both. In sub-section (2), it is stated that if someone is responsible for a company or institution (regardless of its name) and fails to report an offense committed by a subordinate under their control under sub-section (1) of section 19, they can be punished with imprisonment for up to one year and a fine. Sub-section (3) clarifies that sub-section (1) does not apply to children under this Act.

Section 22 describes the punishment for false complaints or false information. Sub-section (1) says that any person who tries to make a false complaint or provides fraudulent information against any person in respect of an offense committed under sections 3, 5, 7, and section 9, entirely intending to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.

Subsection (2) Where a false complaint has been made or a child has provided false information, no punishment shall be imposed on such child. Subsection (3) conveys providing false information or making a false complaint against a child with the intention of causing harm is a punishable offense under this Act. The offender may face imprisonment of up to one year, a fine, or both.

Amendments In The Act
The Protection of Children from Sexual Offences (POCSO) Act was amended for the first time in 2019 by The Protection of Children from Sexual Offences (Amendment) Act, 2019. The President gave his assent to the amendment on August 5th, 2019. The amendment included the provision of capital punishment for aggravated penetrative sexual assault of a child, thereby strengthening the punishment for this heinous crime. The punishment for sexual assault, especially if it involves penetration, has been increased from 7 to 10 years.

Moreover, if the victim is below the age of 16, the punishment has been increased to a minimum of 20 years. The laws to prevent child pornography have also been made strict through the amendments to the act. The original act punished the storage of child pornography for commercial purposes. However, the Amendment Act expanded the law to make possession of any form of child pornographic material punishable. This includes cases where the accused person fails to destroy or report the material with the intention to share it.

The amendment also removed words such as "communal" or "sectarian" and replaced them with "violence during any natural calamity or in similar situations" to describe the kind of violence covered under the law. The government has introduced new rules under section 45 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which were issued on 09.03.2020 in notification no. GSR 165(E) of the official Gazette.

These rules are aimed at enforcing the recent amendments to the POSCO Act, which have made the punishment for sexual abuse of children stricter. The new rules have introduced some additions to the PCSO Rules, 2012, and have repealed the old rules with respect to actions taken or not taken before the repeal. 

The Problems From The Legal System (Judiciary)

Often, when children try to complain, they are not given the attention they deserve by their family members, the police, or medical experts. This can lead to their complaints being rejected and not taken into consideration. A child who has been sexually abused may reveal various responses, and safeguarding the victim is extremely important in persuading justice. In certain cases, children hold back from speaking up about the occurrence.

In this period, they need support to put out details about anything anxious because the person who has been given the responsibility for the care and custody of the child is usually observed as the culprit. There is a social dishonor attached to such instances, due to which many cases go unreported, believing the shame, social disrespect it brings along with it, and the fear of getting blacklisted from the fear of getting ostracized from society.

In the system functioning, most families significantly don’t come forward to report the cases of the child’s sexual abuse as they wouldn’t be treated with all concern to be taken. The police, medical experts, and sometimes the social workers show no sympathy towards the victim; instead, they add more and more trauma to the situation. There are many cases where doctors have been unprofessional to take up such cases as it leads to a sensitive concern.

The police, in some situations, force the parents to withdraw the cases and refuse to register a complaint. The medical officers not taking due care or counselling, which is comprehensive of treating the child with due care, is compromised. The criminal justice system and its functioning lack the ability to deal with sexual offenses concerning minors. Children are not in a helpless position only inside families but in places like NGOs for orphans, skill development centers for children, adoption care centers, etc.

These are places where the primary motive is to protect, safeguard, and look for the welfare of the development of children. The children at these institutions are at higher risk and exposed to such situations. In opposition, they cannot receive due care, protection, or justice after being a victim in such an occurrence. The cases of sexual abuse of children in such institutions are observed to be very common, and most of them are unreported.

Challenges And Controversies Faced By The POCSO Act

Child sexual abuse is a complicated problem that affects children in various ways physically, mentally, socially, economically, psychologically, and legally. While the POCSO Act 2012 is designed to be child-friendly, there are some issues that are not covered in its provisions, which can lead to challenges and controversies. There are several points that can be addressed to clarify these issues :

1. Medical Examination – It is important to note that under Section 27(2) of the POCSO Act, it is mandatory for a female child to be examined by a woman doctor. Similarly, according to Section 166A of the Indian Penal Code, government medical officers on duty must conduct medical examinations on rape victims without fail. However, this can be a difficult task to manage when a female doctor is not immediately available.
    
2. Consent Regarding Medical Examination:
   The POCSO Act doesn't provide any specific aim for cases where a child refuses to undergo a medical examination. Currently, investigating officers are insisting on the examination in these situations. The law needs to be clarified regarding this issue. However, it is essential to establish treatment as soon as possible to protect the child's life, without getting into the matter of consent.
    
3. Consented Sexual Intimacy:
   It is important to understand that sexual contact between two adolescents or between an adolescent and an adult is illegal under the POCSO Act, with no exceptions provided. However, a proposal has been proposed to legalize consensual sex between consenting adolescents. Additionally, it should be noted that the age of consent for sex in India has been fixed at 18 years per the latest amendment to the Indian Penal Code.
    
4. Child Marriage:
   While child marriage is prohibited by secular law in India, it is still permitted under personal law, which creates a complicated situation. Additionally, the POCSO Act of 2012 considers both child marriage and concludes that it is illegal.
    
5. Treatment Cost:
   According to the POCSO Act, medical establishments are legally compelled to provide free medical facilities to children. However, if proper facilities are not available or if a costly procedure is required, the child may not receive the complete treatment they are entitled to. In such cases, it is the responsibility of the state to compensate the cost to ensure the child receives the necessary medical attention.
    
6. Reporting Issue:
   Most cases of child abuse go unreported due to the fear of being insulted, embarrassed, or shamed in front of society. Reporting child abuse is a difficult and highly personal decision for family members. They often avoid it to prevent fear, insult, and making fun, which leads to a lack of reporting of such incidents.
    
7. Training Issue:
   Children are the most unprotected members of society, as they are likely to be highly, easily affected and emotional. It is essential that medical professionals, teachers, trainers, practitioners such as judicial officials, advocates, and law enforcement agencies involved in the POCSO Act of 2012 receive urgent training in how to conduct childfriendly questioning, medical check-ups with counselling, and regular follow-ups.
    

Conclusion
The POCSO Act, 2012 is a comprehensive legislation which aims to cover all the aspects of child sexual abuse. Amendment made in the Act, the Protection of Children from Sexual Offences (Amendment) Act, 2019, which the punishments for the offences have been made more severe. The most essential requirement is to sensitize the public regarding child sexual abuse so that there is no hesitation in reporting these crimes.

Moreover, the investigating agencies should be well trained, and the professionals such as medical practitioners involved in the stages of investigation and trial, should be efficient to leave any scope of negligence on their part. The POCSO Act already makes the procedure child-friendly and this approach should be followed by the judicial officers, magistrates, and police officers so that the child victims could repose trust in them

References:

1. The Protection of Children from Sexual Offences, "Ministry Of Women And Child Development
2. Saman, POCSO Act, its need and relevance in India, 'Legal Service India, E Journal
3. Chapter 2, POCSO Act 2012, India Code
4. Shiv Sunny, The Hindu, 'Operation Nirbheek’ to go national. Shocking revelations of child abuse emerge during police visits to various schools across the city
5. Saagarika M, Critical Analysis of Judicial Responses to POCSO Act, "International Journal of Science and Research (IJSR)
6. Devanshi, 'Two judgments disorbing POCSO Act’, 'Legal Services India, E Journal.’
7. Libnus v. State of Maharashtra, "SSC ONLINE
8. Chapter V, Proceedings for reporting POCSO cases, INDIA CODE
9. Protection of Children from Sexual Offences, Amendment 2019, 'Ministry of Women and Child Development
10. Dr. Khushboo R. Hotchandani 'Every Child Is Special – A Study of Child Sexual Abuse and the Law (POCSO) In India’ (ICJRT)