Overview of the POCSO Act

This article delves into POCSO Act in depth. It endeavours to focus on the benefits of the POCSO Act and in detail analyses the ill effects on the minds of innocent children when they face sexual harassment.

The author admires the legislative intent behind the enactment of the POCSO Act. The author has also cited various landmark case laws and the impact of judicial decisions in our society. The author has a heart-touching emotion for the children and desires to see children blooming like a flower in society without any fear in a safe environment. Even though it is true that our judiciary plays an important role in granting us justice but the trauma a child faces in such circumstances can never be verbally expressed. So, the author expresses the positive strength which has come up with the enforcement of the POCSO Act.

Introduction to the POCSO Act

We all know that gone are the days when children used to go all out in the sun hanging down the tree branches and running on the streets playing Rat-A-Tat, Nowadays, parents are more concerned about the child mingling with other kids as they feel they might be a bad influence. Parents are afraid that their child might get involved in the wrong circle and end up learning bad stuff, however, very few of them are concerned that some bad influence exists inside the four walls of their cosy abode.

According to the data by the National Crime Record Bureau, as many as 109 children were sexually abused every day in India in 2018 and as per the data from the National Crime Record Bureau, a 22 per cent jump in such cases has been seen every year.

Millions of youngsters suffer harassment and are victims of violence and exploitation. They become physically and emotionally weak. Due to this, they may be scarred forever by mental or emotional abuse. Child sexual abuse is an evil living in our prevalent society yet much of the discussion does not take place regarding this. It is the root cause of several health problems and an array of other consequences.

On top of that, the pandemic gave the parents another reason for not sending their children out and learning social skills, rather forcing them to stick to the screens for online classes. The Global Threat Assessment Report, 2021, by We, Protect Global Alliance, said COVID-19 had contributed to a significant spike in child sexual exploitation and abuse online. So, what is the solution? Who comes to rescue these little bloomers? All answer lies in the POCSO Act.

The reason behind the enactment of the Act

The Protection of Child from Sexual Offence Act was enacted on 14^th November 2012, to protect children from sexual offences and provide a child-friendly judicial system. When a child is left with the dark memories of the wrongful act committed against him/her and as such to protect the child from the hassle corridors of the courts as well as rigorous judicial proceedings which leave a bad impact on the child, it was very necessary to establish this Act for fast and safe trial in cases of sexual offences. The act is divided into 46 sections, 9 chapters and 1 schedule.

Need of the Act

The commencement of this law was very important as there was no such specific act that dealt with sexual offences in terms of children. Now, if you are thinking about the Indian Penal Code, then it is important to note that there are provisions related to sexual offences however those provisions do not specifically deal with children. Also, the procedures of those provisions were not child friendly that could provide justice to the child without affecting the mental health of the child. The need for this act was very authentic as there was an absence of any such special law which dealt with the protection of children from sexual offences and was not only limited to rape which was gender-neutral.

Aims to be achieved through this Act

As every Act that is codified has a purpose and objective, the POCSO Act also has the following aims:

• This act aimed at the formulation of comprehensive laws that cater to various sexual offences.
• To get stringent punishments ready for the sexual offences mentioned in the Act.
• To set up such an act that promotes child-friendly trials.
• This act also aimed to provide every child with the right to know about the case she/he is involved in.
• Lastly, to provide every child with the right to be heard.

Punishments provided under the Act

• For penetrative sexual assault with a child below the age of 16, the minimum punishment is 20 years of imprisonment and the maximum is life imprisonment with a fine.
• The punishment remains the same for aggravated penetrative sexual assault if done with a child below 18 years of age.
• For sexual assault below 18 years of age, the punishment is a minimum of 3 years and a maximum of 5 years of imprisonment with a fine.
• If a person uses a child below 18 years of age for pornographic purposes, he is liable for a punishment of 5 years of imprisonment plus a fine and if found doing the same thing again, i.e. in the second instance, the accused will be subject to imprisonment not less than 7 years with fine.
• A person is subject to imprisonment for up to 3 years along with a fine if found storing pornographic material in which a child below the age of 18 years has been used for creation.

Amendment in the Act

The POCSO Act came into force in the year 2012 and was amended again in the year 2019. Mentioned below are some of the changes that have been brought after the amendment.

• The punishment for ‘Penetrative Sexual Assault’ in the prior act was a minimum of 7 years whereas post amendment it turned into a minimum of 10 years and in the case of a child below the age of 16 years, the person will be punishable with the minimum imprisonment of 20 years to life, along with fine.
• The punishment for ‘Aggravated Penetrative Sexual Assault’ prior to the amendment was a minimum of 10 years of imprisonment and a maximum of lifetime imprisonment. On the other hand, post the amendment, it is a minimum of 20 years of imprisonment and the maximum punishment is Death Penalty.
• When it comes to ‘the use of children for pornographic purposes, prior to the amendment the punishment was maximum 5 years of imprisonment whereas after the amendment it turned out to be the minimum punishment.
• The punishment for ‘storage of pornographic material’ was up to 3 years prior to the amendment and post amendment it turned to be between 3 years and 5 years.

Important Case Laws

• Youth Bar Association of India v. Union of India And Ors.

In this case, the petitioner filed a writ in the nature of Mandamus directing the Union of India and all the states to upload each and every FIR registered in all police stations across the territory of India within 24 hours of registration. The Supreme Court issued the following notable guidelines in the case:

1. The accused is entitled to get a copy of the
   FIR as soon as possible.
2. The accused has the right to apply for the grant of a certified copy of FIR within 24 hours and the same will be provided by the Superintendent of Police as the case may be, the Magistrate.
3. Except for sensitive offences, FIRs are to be uploaded on the police website latest by 72 hours from the registration (A three-officer committee to handle grievances, where, in view of its sensitive nature, FIRs are not uploaded.)

• Sampurna Behrua v. Union of India

In this case, the petitioner applied for the writ in the nature of Mandamus directing the Union of India to ensure that the needs of the children are met and their basic human rights are not infringed. The Supreme Court in this case marked out a few important points like:

1. The Ministry of Development of Women and Children shall ensure optimal and effective performance of NCPCR and SCPCR so as to cater for the needs of the children, for their benefit.

2. For expeditious delivery of Juvenile Justice, the Juvenile Justice Board and Child Welfare Committees shall hold regular sessions.

3. The time-bound surveys must be conducted by NCPCR and SCPCR in accordance with the Juvenile Justice Act, 2015.

The State Government shall ensure the registration of all Child Care Institutions in order to provide a dignified life to every child.

• Satish Ragde v. State of Maharashtra

In this case, the accused i.e. Satish Ragde was convicted of 3 years imprisonment for sexual assault under sections 7 and 8 of the POCSO Act by the sessions court. The accused challenged the decision in the High Court and subsequently, the Bombay High Court held the following:

1. If there is no skin-to-skin contact, then it would not be considered Sexual Assault as provided under Sections 7 and 8 of the POCSO Act
   .
2. The act of pressing a breast can be a criminal force on a woman/girl with the intention to outrage her modesty. The minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to a fine.

• Attorney General of India v. Satish

1. The judgement of the Bombay High Court in Satish Ragde v. The state of Maharashtra was challenged and heavily criticized.
2. The Supreme Court quashed the impugned skin-to-skin judgement of the Bombay High Court and held that:

• • The most important ingredient of the offence of Sexual Assault under Sections 7 and 8 of the POCSO Act is Sexual Intent and not skin-to-skin contact.
  • The Court also said that it has held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that the courts cannot be overzealous in searching for ambiguity.

Conclusion

We all have heard the name of the famous poet, Willam Wordsworth. In his poem “My Heart Leaps Up” which he wrote in the year 1802, he wrote a line ‘child is the father of man’. This means that the behaviour and activities of a person’s childhood go a long way in building his personality. Now imagine scarring a child in his childhood, what s going to happen? That scarred memory is going to stay with him till the last breath and there is very less or no chance that a kid is able to recover from childhood trauma.

A child too has human rights and so has a right to justice. It is the responsibility of the legislative and the judicial system that the justice giving process does not become another trauma for the child. That is why it was very important for the POCSO Act to come into force. The situation of no law to special law was the need of the hour. The POCSO Act has had a tremendous success rate and continues to rescue a lot of children in need of justice.

I would like to quote the words of Dave Pelzer, “Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul”.

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References:

[1] Ramya Kannan, Covid-19 Pandemic fuelled the rise in child sexual abuse, Available Here

[2] Parinaz Madan, Five things to know about the POCSO Act, Available Here

[3] Status of POCSO cases in India, Available Here

[4] Shriniwas Joshi, the Child is the father of the man,

Available Here

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