PROJECT
CONSTITUTIONAL GOVERNANCE-I
On
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES: A SOCIO-LEGAL
ANALYSIS WITH SPECIAL REFERENCE TO PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012
TABLE OF CONTENTS
S No. Particulars Page No.
1. Declaration of Originality i
2. Certificate ii
3. Acknowledgement iii
4. Introduction 1- 10
5. Research Methodology
Problem of the Study
Rationale of the Study
Objectives of the Study
Review of Literature
Concept and Variables
Hypothesis
Research Design- Nature of Study, Sources of
Study
Chapterization of the Study
Time Duration of the Study
Limitations of the Study
Contribution of the Study
6. Chapterization
Chapter - 1
Chapter - 2
Chapter - 3
Chapter - 4
7. Major Findings, Conclusion and Suggestions
8. Bibliography
INTRODUCTION
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
ACT NO. 32 OF 2012
Children are amongst one of the most vulnerable sections of society. Hence, it is essential to
safeguard the interest of children from every obstacle, whether it be violence, cruelty, atrocities
or sexual offences. The POCSO Act, 2012 was the need of the hour as India is the second most
populous country and also, according to the Census-2011, India has one of the largest population
of Children of 472 million below the age of Eighteen.
The Protection of Children from Sexual Offences (POCSO) Act, is a comprehensive law on
sexual offences against children, which came into force with effect from 14th November, 2012.
Before POCSO Act became a law, there was no specific law dealing with such offences.
Also, before POCSO Act, Child abuse/sexual offences were prosecuted under Indian Penal Code
(IPC).
The POCSO Act, has some stringent laws which was necessary, as children who are below
Eighteen sometimes does not even know or have the knowledge of the offences which are
committed against them. So maybe, making or incorporating stringent laws can frightened off
the predators.
Moreover, India is a signatory of United Nations Convention on the Rights of the child
(UNCRC), India ratified the UNCRC on 11 December 1992. Which makes it mandatory to
adhere to its International laws, principles, rules and regulations.
‘Child sexual abuse is a multidimensional problem having legal, social, medical and
psychological implications.’1 The 2012 POCSO Act, has some commendable aspects. Firstly, it
is gender neutral (child is referred as any person who is below the age of Eighteen). Secondly, it
involves/ provides child friendly procedures. Thirdly, as these offences greatly traumatizes the
children there are physiologist and mental health experts or counsellors provided to them and
their family. Fourthly, the Act, also talks about providing free legal aid to the victim.
1
Behere PB, Sathyanarayana Rao TS, Mulmule AN. Sexual abuse in women with special reference to children:
barriers, boundaries and beyond. Indian J p. 2013;55:316–9. [PMC free article] [PubMed].
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3890930/.
RESEARCH METHODOLOGY
The study has been carried out with the help of secondary data available in the internet. The
information regarding the topic has been taken from the internet while the information of the
bare act and other relevant legal points have been taken from the site of Ministry of Women and
Child Development and various other sites.
The data has been analyzed after collaborating various sources of data to come to a fruitful
conclusion with regard to the topic chosen.
a) PROBLEM OF THE STUDY: The present POCSO act has constrains and challenges. Upon
preliminary reading the POCSO Act may qualify as the ideal legislation to protect children from
sexual offences. However, there are certain conceptual problems and loopholes in it.
b) RATIONALE OF THE STUDY: Because of the increase in number of crimes against
children the POCSO Act was constituted. The rationale behind this research is to study about the
various provisions and aspects of the POCSO act and its socio-Legal impact in the society.
c) OBJECTIVES OF STUDY: This study seeks to achieve the following objectives:
1. To study and understand the provisions POCSO Act.
2. To see what changes have been made in the Act from the 2019 amendment.
3. To study about the p of practical functioning of the Act.
d) REVIEW OF LITERATURE:
1. Critical analysis of India’s protection of Children from sexual offences act 2012.
Author(s): Mayank Tiwari
In the present article, the author Mayank Tiwari has discussed in detail about the various aspects
of The Protection of Children from Sexual Offences Act, 2012. The author has tried to explain
the Pros and Cons of the said Act. He has also dealt various provisions of the Act in a layman’s
language, which is very easy to comprehend. The researcher found the present article very
helpful.
2. The 2019 amendment to POCSO: A socio-legal Analysis.
Author(s): Tanvi Rahim and Sannidhi Buch
In this article, the author Tanvi Rahim And Sannidhi Buch, has very efficiently explained what
changes have been made through the 2019 amendment Act, which helped the researcher in her
research.
3. Sexual abuse in women with special reference to children: Barriers, Boundaries and Beyond.
Author(s): P.B. Behere, T.S. Sathyanarayana Rao, Akshata N Mulmule.
Here, in this article, the authors have discussed about the concept of various laws related to
sexual offences and has also, focused on its impact on society. The authors have precisely
explained every point mentioned in the article which immensely helped the researcher in
understanding the topic in depth.
e) CONCEPT AND VARIABLES: The following concept and variable has been used in the
present research work:
1. POCSO- Protection of children from sexual offences.
2. CNCP- Children in Need of Care and Protection (CNCP)
3. CCLs- Children in Conflict with Law.
4. IPC- Indian penal code.
5. Sexual assault- Actions where a person touches the vagina, penis, anus or breast of a child
with sexual intent without penetration.
6. Child Pornography- Any visual depiction of sexually explicit conduct involving a child
including photograph, video, digital or computer-generated image indistinguishable from an
actual child.
f) HYPOTHESIS: With the increase in crimes against the children, the more stringent laws are
to be made to stop the growth rate of crimes against children.
g) RESEARCH DESIGN:
NATURE OF STUDY- The research project is descriptive and analytical in nature as it focuses on
various things in detail.
SOURCES OF THE STUDY- The research has been done taking the help of secondary sources.
Such as e-articles, websites, articles and journals available on the internet.
h) CHAPTERIZATION AT A GLANCE: The present research work is divided into Six
chapters.
CHAPTER 1- Features of the POCSO Act.
CHAPTER 2- Interpretation of important terms.
CHAPTER 3- Punishments for the offences covered in the Act.
CHAPTER 4- Provisions related to conduct of trail of reported offences.
CHAPTER 5- The 2019 amendment to the POCSO Act.
CHAPTER 6- Loopholes in the Act.
i) TIME DURATION OF THE STUDY: The present research study has been completed by
the researcher in total 10 days.
j) LIMITATION OF THE STUDY: Every research has its own set of limitations and the
present research work is no exception to this rule. The limitations of the study are:
1. The researcher faced problem due to the time constraints, as there were end term examinations
of the researcher before the deadlines.
2. The POCSO Act is a whole, comprehensive Act for children’s, hence, interconnecting POCSO
Act with other Child laws was a challenge.
k) CONTIBUTION OF THE STUDY: The present research work has contributed in the
following way.
The present research has enhanced and contributed to the knowledge of the researcher and will
also, enhance the knowledge of the society as well because before this research project, such a
compilation of the topic in vast yet, in precise manner was not easily accessible in the internet.
So, it can be said that this research has added some more knowledge to the existing knowledge of
the researcher on this particular topic.
CHAPTERZIATION
Chapter 1 -Feature of the POCSO Act.
1)Attributes of the Act.
The Protection of Children from Sexual Offences (POCSO) Act 2012 is established to strengthen
legal provisions for the protection of children below the age of 18 years from sexual abuse,
sexual harassment and pornography in India. The Act is gender neutral and regards the best
interests and welfare of the child as a matter of paramount importance at every stage so as to
ensure the healthy physical, emotional, intellectual and social development of the child. The
POCSO act defines different kinds of sexual abuses which includes penetrative and non-
penetrative assault, sexual abuse, and pornography. This Act sets a burden of proof of “guilty
until proven innocent” rather than the general rule of “innocent until proven guilty.”
2) Child friendly procedures and Speedy trail process.
It is mandatory for the police to register a First Information Report (FIR) in all cases of child
abuse. The Act additionally prescribes punishments for attempted crimes under this act as well as
aiding-and-abetting these crimes or failure to report these crimes. If there is any suspicion that an
offence should be reported, the Act advises reporting because failure to report alone may result
in up to 6 months of imprisonment and/or fines2.
The Act also prescribes for special courts to be created to handle these trials, each of which
should be completed within one year. The Act requires that the minor is not exposed in any way
to the accused during the recording of evidence and their identity is not disclosed at any time
during the investigation or trial. The minor is not made to repeat their testimony in court, and
they may give the testimony using a video stream instead. The defense asks all questions through
the judge and is not allowed to ask them in an aggressive manner. An interpreter, translator,
special educator or any other expert may be present in court for the minor’s assistance. There is
also defined criteria for awarding compensation by the Special Court which includes: loss of
2
Ministry of women and child development, Model Guidelines under section 39 of the Protection of Children from
sexual offences Act,2012. Sep,2013.
https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf
educational and employment opportunities along with disability, disease or pregnancy as the
consequence of the abuse.
Chapter 2- Interpretation of important terms.
1) Aggravated penetrative sexual assault
The Act defines certain actions as "aggravated penetrative sexual assault". These include cases
when a police officer, a member of the armed forces, or a public servant commits penetrative
sexual assault on a child. It also covers cases where the offender is a relative of the child, or if
the assault injures the sexual organs of the child or the child becomes pregnant, among others.
The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.
These include:
assault resulting in death of child, and
assault committed during a natural calamity, or in any similar situations of violence.
Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10
years to life, and a fine. The Bill increases the minimum punishment from ten years to 20 years,
and the maximum punishment to death penalty.
2) Aggravated Sexual Assault.
Under the Act, "sexual assault" includes actions where a person touches the vagina, penis, anus
or breast of a child with sexual intent without penetration. "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. The Bill adds two more offences to the definition of aggravated sexual
assault.
These include: (i) assault committed during a natural calamity, and (ii) administrating or help in
administering any hormone or any chemical substance, to a child for the purpose of attaining
early sexual maturity.
3) Pornographic purposes:
Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in
any form of media for the purpose of sexual gratification. The Act also penalizes persons who
use children for pornographic purposes resulting in sexual assault. The Bill defines child
pornography as any visual depiction of sexually explicit conduct involving a child including
photograph, video, digital or computer-generated image indistinguishable from an actual child.
4) Storage of pornographic material:
The Act penalizes storage of pornographic material for commercial purposes with a punishment
of up to three years, or a fine, or both. The Bill amends this to provide that the punishment can
be imprisonment between three to five years, or a fine, or both. In addition, the Bill adds two
other offences for storage of pornographic material involving children.
These include: (i) failing to destroy, or delete, or report pornographic material involving a child,
and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it3.
Chapter 3- Punishment for offences covered in the Act.
Penetrative Sexual Assault (Section 3) on a child - Not less than ten years which may extend to
imprisonment for life, and fine (Section 4). Whoever commits penetrative sexual assault on a
child below sixteen years of age shall be punished with imprisonment for a term which shall not
be less than twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of that person, and shall also be liable to fine.
Aggravated Penetrative Sexual Assault (Section 5) — Not less than twenty years which
may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7) i.e. sexual contact without penetration — Not less than three
years which may extend to five years, and fine (Section 8)
3
Moirangthem S, Kumar NC, Math SB. Child sexual abuse: Issues & concerns. Indian J Med Res. 2015;142(1):1-3.
doi:10.4103/0971-5916.162084.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/
Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five
years which may extend to seven years, and fine (Section 10)
Sexual Harassment of the Child (Section 11) — Three years and fine (Section 12)
Use of Child for Pornographic Purposes (Section 14) — Not less than Five years and fine
and in the event of subsequent conviction, seven years and fine Section 14 (1)
Use of child for pornographic purposes resulting in penetrative sexual assault: Not less
than 10 years (in case of child below 16 years, not less than 20 years)
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault:
Not less than 20 years and fine
Use of child for pornographic purposes resulting in sexual assault: Not less than three
years which may extend up to five years
Use of child for pornographic purposes resulting in aggravated sexual assault: Not less
than five years which may extend to seven years
Any person, who stores or possesses pornographic material in any form involving a child,
but fails to delete or destroy or report the same to the designated authority, as may be
prescribed, with an intention to share or transmit child pornography - Fine of not less than
Rs 5,000; in the event of second of subsequent offence, fine not less than Rs 10,000.
Any person, who stores or possesses pornographic material in any form involving a child
for transmitting or propagating or displaying or distributing in any manner at any time
except for the purpose of reporting, as may be prescribed, or for use as evidence in court,
shall be punished with imprisonment of either description: Up to three years of
imprisonment, or with fine, or both.
Any person, who stores or possesses pornographic material in any form involving a child
for commercial purpose shall be punished on the first conviction: Not less than three
years of imprisonment which may extend to five years; or with fine or with both. Second
or subsequent conviction: not less than five years and up to seven years and also fine4.
Chapter 4- Provisions related to conduct of trail of reported offences.
4
Protection of children from sexual offences act, Vikaspedia.
https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf
The Act provides for the establishment of Special Courts for trial of offences under the Act,
keeping the best interest of the child as of paramount importance at every stage of the judicial
process.
The Act incorporates child friendly procedures for reporting, recording of
evidence, investigation and trial of offences. These include:
Recording the statement of the child at the residence of the child or at the place of
his choice, preferably by a woman police officer not below the rank of sub-
inspector.
No child to be detained in the police station in the night for any reason.
Police officer to not be in uniform while recording the statement of the child.
The statement of the child to be recorded as spoken by the child.
Assistance of an interpreter or translator or an expert as per the need of the child.
Assistance of special educator or any person familiar with the manner of
communication of the child in case child is disabled
Medical examination of the child to be conducted in the presence of the parent of
the child or any other person in whom the child has trust or confidence.
In case the victim is a girl child, the medical examination shall be conducted by a
woman doctor. 13. Frequent breaks for the child during trial. Child not to be
called repeatedly to testify.
No aggressive questioning or character assassination of the child in-camera trial
of cases5.
The Act recognizes that the Intent to commit an offence, even when unsuccessful for
whatever reason, needs to be penalized.
The attempt to commit an offence under the Act has been made liable for punishment for
upto half the punishment prescribed for the commission of the offence.
The Act also provides for punishment for abetment of the offence, which is the same as
for the commission of the offence.
5
Tanvi Rahim and Sannidhi Buch, The 2019 Amendment to POCSO: A socio-legal analysis, THE CRIMINAL
LAW BLOG, NLU JODHPUR, CCLSNLUJ, Jun 6, 2020.
https://criminallawstudiesnluj.wordpress.com/2020/06/06/the-2019-amendment-to-pocso-a-socio-legal-analysis/.
The Act makes it mandatory to report commission of an offence and also the recording of
complaint and failure to do so would make a person liable for punishment of
imprisonment for six months or / and with fine. 18.1t is a Punishable action if Police /
Special Juvenile Police Unit fails to report a commission of the offence under this act
[Section- 2141)]
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative
Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is
shifted to the accused. This provision has been made keeping in view the greater
vulnerability and innocence of children.
To prevent misuse of the law, punishment has been provided for making false complaint
or proving false information with malicious intent. Such punishment has been kept
relatively light (six months) to encourage reporting. If false complaint is made against a
child, punishment is higher (one year) (Section 22).
The media has been barred from disclosing the identity of the child without the
permission of the Special Court. The punishment for breaching this provision by media
may be from six months to one year (Section 23).
For speedy trial, the Act provides for the evidence of the child to be recorded within a
period of 30 days. Also, the Special Court is to complete the trial within a period of one
year, as far as possible (Section 35).
To provide for relief and rehabilitation of the child, as soon as the complaint is made to
the Special Juvenile Police Unit (SJPU) or local police, these will make immediate
arrangements to give the child, care and protection such as admitting the child into shelter
home or to the nearest hospital within twenty-four hours of the report. The SJPU or the
local police are also required to report the matter to the Child Welfare Committee within
24 hours of recording the complaint, for long term rehabilitation of the child.
The Act casts a duty on the Central and State Governments to spread awareness through
media including the television, radio and the print media at regular intervals to make the
general public, children as well as their parents and guardians aware of the provisions of
this Act.
The Provisions of this Act is in addition to and not in derogation of any other provisions
of any other Law. In case of any consistency the provisions of this act will have an
overriding effect on any other provisions.
The POCSO Act is only applicable to child survivors and adult offenders. In case two
children have sexual relations with each other, or in case a child perpetrates a sexual
offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000, will
apply.
Chapter 5- The 2019 amendment to the POCSO Act.
On March 13, 2020, the center notified a new set of rules to effectively implement
the amendments made in 2019 to the POCSO Act. A few of the amendments include the
provision of ‘Death Penalty’ as a punishment. The government pronounced that 2019
amendments were introduced to discourage the trend of child sexual abuse and creating a
deterrent effect by incorporating stringent penal provisions. This came up by looking at the
tremendous rise in the child crime rates, especially after the Kathua gang rape and murder case.
Thus, it was followed by an objective to safeguard the interest of vulnerable children in times of
distress and protect their safety and dignity. As a consequence, the minimum punishment was
changed to 20 years and the death penalty was introduced among other changes aimed at
reducing the number of cases relating to child sexual abuse. Section 6 allows a death sentence for
all types of aggravated penetrative sexual assault by a person. The intention behind the bill is
creditable, however, it fails to consider the fact that the introduction of the death penalty in cases
of child sexual abuse is a drastic step and might not lead to a deterrent effect6.
Chapter 6- Loopholes in the Act.
6
Khushboo sharma, Inclusion of the death penalty in light of the POCSO (amendment) Bill, 2019, HNLU Student
Bar Journal, Jul 27,2020
http://sbj.hnlu.ac.in/inclusion-of-the-death-penalty-in-light-of-pocso-amendment-bill-2019/
Upon a preliminary reading the POCSO Act may qualify as the ideal legislation to protect
children from sexual offences. However, there are certain conceptual problems in it. The Act
does not leave any possibility of consent given by persons under 18. This would mean that if a
seventeen-year-old boy or girl had a nineteen-year-old sexual partner, the partner would be liable
to be booked under the provisions of the POCSO Act. The Act also does not provide any clarity
on what happens when two minors engage in any kind of sexual activity. Technically, they are
both Children in Need of Care and Protection (CNCP) and Children in Conflict with Law
(CCLs). In practice though, the police declare girls to be CNCPs and the boys to be CCLs.
Another problem faced by victims is proving the age of the child. Since the POCSO Act is silent
on what documents are to be considered for determining the age of the child victim, the
provisions of Rule 12 of the Juvenile Justice Rules have been read by Courts as applying to child
victims as well. This rule recognizes only the birth certificate, the school certificate of the child,
or the matriculation certificate. However, children who are only able to produce other documents
– even a legal document such as a passport – have to undergo a bone ossification test. This test
can give a rough estimate of the age of the child at best. There needs to be a clear provision in
the POCSO Act that lays down what documents should be considered for proving the age of the
child, and whether the benefit of the doubt should be given to the child if the ossification test
cannot provide an exact assessment7.
Similar to the law of rape under the IPC. The pronoun used for the accused is “he”, thus, again,
only a male can be booked for the offences under the relevant provisions of the POCSO Act.
Though, unlike rape, a victim under the POCSO Act can be any child irrespective of the gender,
the accused still can only be a male and females are again given a protective shield, for reasons
unknown. Saying that females do not subject children to forceful sexual assault is untrue. These
are clear examples of the unexplained gender bias in the laws relating to sexual intercourse in
India8.
MAJOR FINDINGS, CONCLUSION AND SUGGESTIONS.
8
Mayank Tiwari, critical analysis of India’s protection of children from sexual offences act, 2012, JURIST, Legal
News & Commentary, May 8, 2020.
https://www.jurist.org/commentary/2020/05/mayank-tiwari-posco-act/
Major findings:
The present legislation for criminalizing sexual offences against children was a much-needed
piece of legislation. The adjudication process for the same should be made more transparent and
the role of police in such offences much more prompt, so that people sense a feeling of
contention and credibility in the whole process from initiation to adjudication. The deterrent
effect which this act renders is also sufficient, but to overcome and eradicate this issue from the
grassroots level, the collective consciousness among the masses should be pure and must include
the feelings of love and care.
Conclusion:
Only making stringent laws is not sufficient, its proper execution is also vital.
Suggestions:
The researcher believes ‘sex’ has become a taboo subject. It needs to be normalized. Also,
providing sex educations classes in school as well as in home, might normalize the topic. Also, it
will help in decreasing of sexual crimes against any individual.
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