POCSO (Amendment) Act, 2019: Synopsis

Synopsis on -POCSO (AMENDMENT) ACT, 2019

Author: Ms. Mahima Sharma, K. R. Mangalam University

INTRODUCTION:

“ If we wish to create a lasting peace we must begin with the children.”

These words of Mahatma Gandhi, who is known as the Father of our Nation, tried to make us realize the importance of the children in our society. Every Child is considered as a gift of God. They are happy, innocent, curios & active. They teach us how to find happiness in our surroundings. When these children get sexually abused, they lose their happiness & faith in our society. Each of us as citizens has a role to play in creating a better world for our children as said by Nelson Mandela.

India has the second-largest child population in the world,42% of India’s total population is below eighteen years. In an awful revelation, a Government-commissioned survey has found that more than 53% of Indian children are subjected to sexual abuse or assault. Child Sexual Abuse, Assault, Harassment  & Pornography is a serious and pervasive social as well national issue. Pain and tissue injury from child sexual abuse can completely heal in time, but psychological and medical consequences can persist through an individual’s entire life.

Child sexual abuse or child molestation is a form of abuse in which an adult or older adolescent uses a child for sexual stimulation. It is a kind of physical or mental violation of a child with sexual intent usually by a person.[1]Therefore, to protect children & their rights, the Protection of Children from Sexual Abuse (POCSO) Act, 2012 was drafted. The objective of the Act is to save the children from being sexually abused and to punish the offenders. Recently, this act was amended by the Minister of Women and Child Development, Ms. Smriti Zubin Irani on July 18, 2019.

POCSO ACT :

The Act seeks to protect children from offences such as sexual assault, sexual harassment, and pornography. Protection of Children from Sexual Offences (POCSO) Act,  has been legislated keeping in view the fundamental concept under Article 15 of the Indian Constitution that empowers the state to make special provisions for children. Also, Article 39(f) of the constitution provides that state shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and the childhood and youth are protected against exploitation and against moral and material abandonment. The present POCSO (Amendment) Act,2019 specifically defines what ‘child pornography’ is; ‘using a child for pornographic purposes’ and for ‘possessing or storing pornography involving a child’ is punishable. It has also widened the ambit of ‘Aggravated sexual assault’ and some of the punishments for the offence were enhanced with a provision of the death penalty. The government amended Section-2, 4, 5, 6, 9, 14, 15, 34,42 and 45 of the POCSO Act, 2012 are being made to address the aspects of child sexual abuse in an appropriate manner.

IMPORTANT TERMS OF THE ACT:

Penetrative sexual assault:

Under the Act, a person commits “penetrative sexual assault” if he –

  • penetrates his penis into the vagina, mouth, urethra or anus of a child, or
  • makes a child do the same, or
  • inserts any other object into the child’s body, or
  • applies his mouth to a child’s body parts. 

The punishment for such offence is imprisonment between seven years to life, and a fine.  The Act increases the minimum punishment from seven years to ten years.  It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.

– 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.  It includes (i) assault resulting in the death of the child, and (ii) 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 the death penalty.

– 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.

– 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 photographs, video, digital or computer-generated images indistinguishable from an actual child.  In addition, the Bill enhances the punishments for certain offences with a provision of the death penalty.

Punishment for offences for using the child for pornographic purposes[2]

Offence Punishment under POCSO Act, 2012 Punishment under POCSO (Amendment) Act, 2019
Use of a child for pornographic purposes Maximum: 5 years Minimum: 5 years
Use of child for pornographic purposes resulting in penetrative sexual assault Minimum: 10 years Maximum: Life Imprisonment   Minimum: 10 years (in case of a child below 16 years: 20 years)  
Maximum: life imprisonment
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault Life imprisonment Minimum: 20 years Maximum:  life imprisonment, or death.
Use of a child for pornographic purposes resulting in sexual assault Minimum: Six years Maximum: Eight years Minimum: Three years Maximum: Five years
Use of child for pornographic purposes resulting in aggravated sexual assault Minimum: Eight years Maximum: 10 years Minimum: Five years   Maximum: Seven years

Note: Punishment for using a child for pornographic purposes resulting in any form of sexual assault is in addition to a minimum of five years for use of a child for pornographic purposes.

Issued directions for better implementation of the Act :

According to the National Crime Records Bureau data of 2016, the conviction rate in POCSO cases is 29.6% while pendency is as high as 89%. Due to the shocking high rate of pendency of child sexual assaults cases, the Supreme Court directed High Courts to set up panels of its judges to regulate and monitor trails under the  Protection of Children from Sexual Offences (POCSO) Act. The Supreme Court, which had ordered a review of the backlog under POCSO, found that states such as Uttar Pradesh have over 30,000 cases pending despite the child protection law coming into existence as early as 2012. Many states have not yet even set up Special Courts to try POCSO cases as mandated by the law. Therefore, the bench issued a series of directions which supplement the ordinance and includes the State police chiefs should constitute special task forces to investigate cases, High Courts should ensure that they are tried and disposed of by designated Special Courts under the act. The POCSO judges will give no adjournments and make every effort to fast-track trial, witnesses should be produced in court on the day of the hearing and high courts should make every effort to provide a child-friendly atmosphere in tune with the spirits of the act.

CONCLUSION:

As a crime against the children is increasing, the future of this nation is at stake. It is the responsibility of each and every one concern to take the necessary preventative steps towards ensuring child protection and safety. The offence of rape is grave in itself when it comes to child rape. It is one of the shameful treatment, that could ever be met to every kid, the age when the kids are supposed to grow to develop, learn to perceive the world in a completely different way at that vary age they learn, very aspect of betrayed, distrust and all emotion of hatred. The POCSO (amendment) act,2019 does away with such a discrepancy. It is gender-neutral and provides for the death penalty for “aggravated penetrative sexual assault of a child”, thus bringing both these pieces of legislation on a par with each other in this respect. With these amendments and with the Supreme Court considering child abuse “intolerable”, there seems to be reasonable hope now those vulnerable children could be safer. The act is a step forward in preventing child abuse but the consequences of providing for the death penalty need to be closely observed.

REFERENCE :

Links & websites referred in this article are:-


[1]Kumar-pal SA, Study of Sexual Assaults in Northern Range of Himachal Pradesh Inter. J. of Medical Toxicology and Forensic Medicine. 2015; 5(2): 64-72

[2]Protection of Children from Sexual Offences (Amendment) Bill, 2019; Protection of Children from Sexual Offences Act, 2012; PRS.

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