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Recent Developments in the POCSO Act, 2012

Child abuse is one of the growing concerns in today’s world. Amidst all the issues that have been coming up recently, we easily overlook some of the small issues of major importance. We don’t realize how badly such abuse can affect not only the child who has been a prey to such cruelty, but also the people around him, and the society at large. Sexually abusing the child causes psychological and physical damage to the child which might prolong for a lifetime. This issue has been observed rising worldwide. This article rather contains a brief outlook on the Indian picture encompassing this issue. Unlike a lot of other crimes, child abuse is not restricted to any specific gender, religion, community or economy as such. It can be traced right from the lowest to the top-most in its widespread angle. Half of the country’s children face some form of sexual abuse, with 21% having faced severe sexual abuse. Boys account for around 53% and girls for 47% of all children reporting abuse.[1]

No matter how grievous the crime against children is, they always find a way to hide under various pretenses of the society and mostly go unnoticed or un-accounted for. Either the people are too scared to come forward and report such crimes or in the cases where they do, the criminals get away with it very easy. Considering the situation in India, a country where sexuality is a big taboo, coming forward to fight against sexual abuse of children seems like an impossible endeavor. Laws have been made by the legislature for the protection of children, namely, The Protection of Children from Sexual Offences (POCSO), 2012 and the Juvenile Justice Act. In keeping with the best international child protection standards, the POCSO Act,2012 provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months imprisonment and/ or a fine.[2] With the gradual increase in the sexual crimes against children, the provisions of these acts have been made stringent by making effective amendments.

The Protection of Children from Sexual Offences Act, 2012

The Protection of Children from Sexual Offences Act,2012, herein after referred as the POCSO Act, 2012, aims at protecting children from pornography, sexual harassment and sexual assault. It also aims at establishing Special courts to provide justice and for trial of such cases mentioned under the act. Article 15(3) of the Constitution of India, empowers the state to make special provisions for children and the Government of India has acceded on 11th December,1992 to the conventions on the Rights of the Child, adopted by the General Assembly of the United Nations[3]. The Act defines who shall be considered as “child” for the purpose of this act, and along with it, certain other terms as well, such as sexual assault, penetrative sexual assault, sexual harassment, aggravated sexual assault, etc.

Definitions according to the POCSO Act, 2012

S.2 (d)- “child” means any person below the age of eighteen years[4];
S.3 – A person is said to commit “penetrative sexual assault” if,
(a) He penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) He inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) He manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

S.7 - Sexual Assault
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 with involves physical contact without penetration is said to commit sexual assault.

Reporting under POCSO Act, 2012

It important to note that under POCSO Act, 2012 , the burden of proof lies on the prosecution and the act also provides different and severe punishment for the people committing offences under this act. The act not only envisages provisions for protection and punishment but also for the reporting of the crime to the concerned authority and adjudication by the special courts.

Section 21(1) of the POCSO Act, 2012 requires mandatory reporting of cases of child sexual abuse to the law enforcement authorities, and applies to everyone including parents, doctors and school personnel. Failure to report a suspicion of child abuse is an offence under the Act[5]. The children that have been sexually abused are prone to further crimes and disorders also. After the crime has been reported, procedures follow and the child has to go through a tremendous amount of psychological pain during the process. It is important to understand that the damage caused to them cannot be rectified simply by providing medication and treatments but also by giving them time and mental support and care. The children who have fallen prey to sexual abuse, might suffer from physical damages to certain body parts such as urethra,vagina, anus etc. Therefore it is imperative to identify them for rehabilitation and care, and for this purpose reporting is essential.

The POCSO Act, 2012 provides under Section 21(1) that any person, who fails to report the commission of an offence or who fails to record such offence shall be punished with imprisonment of either description which may extend to six months or with fine or with both[6]. Having said that, it is of utmost importance to note that such information should be reported only if it’s true and out of good faith. Reporting false information about a child with an intention to humiliate him/her, is a punishable offence under the Act with imprisonment upto six months or fine or both.

Recent Developments in the Act.
As per Section 9(m) of the POCSO Act,2012 , whoever commits a sexual assault with a child below twelve years of age, is aid to have committed aggravated sexual assault. In a recent case, Raju Prasad vs. State of Sikkim[7], the High Court of Sikkim, presided by Bhaskar Raj Pradhan J., held that an act of forcibly kissing a girl child of eleven years of age and hugging her can amount to “aggravated sexual assault” as mentioned u/s 9(m) of the POCSO Act,2012. The Special court awarded a sentence of five years of imprisonment to the accused.

In a recent case, Shri Akhil Shil Vs. The State, the Calcutta High Court upheld the conviction and sentence of the accused u/s 6 of the POCSO Act,2012, for sexually assaulting a minor girl of three years of age, despite there being contradictions in the statement of the minor and the witnesses. The court held that it is not possible for a child of such tender age to come and depose in the Court of such a heinous crime and a criminal as such, should not be released simply on the grounds of slight contradictions. The Court also explained the term aggravated penetrative sexual assault in detail and awarded a sentence of rigorous imprisonment for ten years and a fine of Rs. 10,000. The court also directed the state to pay a compensation of Rs. 5lacs to the minor victim to ensure her proper education and rehabilitation[8]. The Court reiterated the importance of creating awareness about the survival assault scheme/ the victim assistance scheme.

On 10th July,2019, the Union Cabinet approved certain amendments that shall be made in the POCSO Act,2012 to make the provisions even more stringent with respect to such child abuse. Amendments are also proposed in Section 9 to protect children from sexual offences in times of natural calamities and in other situations where children are administered, in any way, any hormone or any chemical substance, to attain early sexual maturity for the purpose of penetrative sexual assault[9]. The key part of this approval was to provide death penalty to child rapist, for committing aggravated penetrative assault and sexual assault against a child. Various sections have been proposed to be amended, namely, sec. 2,4,5,6,9,14 and 15.

Child abuse is one of the most heinous crimes could be committed against humanity. It not only disrupts the child who has been sexually assaulted but also hinders the quality of the society in the bigger picture, as the children who have felt such traumatic things in the early stage of their lives, grow up to become part of the society. It is imperative to control child sex abuse in order to sustain a healthy population and prosperous growth of the county at large.

[1] (Child Abuse Report, Women and Child Development India, 2007).
[7] Criminal appeal no.17 of 2018, decided on 04.03.2019

Written by: Priyamvada Nair

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