POCSO Act

Legal Framework of the POCSO Act in India

• The POCSO Act: Officially known as the Protection of Children from Sexual Offences Act, 2012, is an Indian Law that focuses on protecting children from sexual abuse, exploitation, and pornography. This legislation was made to establish to get through with the increasing cases of child sexual abuse and to impose severe penalties on offenders, This act also makes it easier for a judicial process that is sensitive to children.
• Historical Context: The POSCO Act, 2012 was implemented in the Country as a reply to the increasing awareness of the previous masters of child sexual abuse, which had frequently not been reported and not even properly addressed by the previous legal structure. Before the POCSO Act, the matters of child sexual abuse were dealt with by more general provisions of the IPC (now BNS), which were not specifically designated to the necessities of child victims. This led to the demands of child rights organisations, activists, and a stronger judiciary for lawful protection. 
• Applicability: The POCSO Act, 2012 applies to everyone who is under the age of 18 years in India, irrespective of background and gender, furnishing safeguards from numerous kinds of sexual abuse, exploitation, and trafficking. It encircles offences like penetrative and non-penetrative sexual assault, sexual harassment, and the use of children for pornography. This act is enforceable in the whole of India and its territories, demanding the establishment of special courts that are fully designated for handling cases of child sexual abuse.
• Key Features of the Act: The POCSO Act, 2012 has many key elements that intend to safeguard children from sexual crimes and to provide a lawful process that is generous for them. Given below are the major features:
  • Definition of a Child: The Act distinguishes a child as any individual who is below the age of 18 years, guaranteeing safeguarding from sexual abuse for every child, irrespective of gender or background.
  • Types of Sexual Offences: This Act addresses numerous forms of sexual offences, which include: section 3 penetrative sexual assault, section 7 non-penetrative sexual assault, section 12 sexual harassment, section 13 for exploitation of a child for pornographic purposes, section 14 child trafficking, and many others.
  • Aggravated Offences: The Act outlines stricter penalties for offences that involve aggravating aspects, like when the offender is a close friend or relative of a child (section 5).
• Child-Friendly Judicial Procedures
  • Special Court: The Act mandates the establishment of special courts to manage issues covered by the POSCO Act, ensuring faster trials and child-sensitive hearings (section 28).
  • In-Camera Trials: Trials are being held in private settings to protect the privacy of children (section 37).
  • Statements Recording: The statement of the witness is recorded in a way that decreases trauma, making use of child-friendly techniques (section 24).
  • Reporting is Mandatory: The Act enforces compulsory reporting of child sexual abuse by any of the people who come to know or who is aware of it, inclusive of parents, doctors, teachers, and others. Not reporting will be subject to the penalties stated (section 19).
• Time-bound Investigation and Trial
  • Span of Trial: Investigations should be concluded within one month of the offence being registered. The trial should be completed within a year from the date of the offence stated (section 35). 
  • Identity Safeguarding: The identity of the victim child is strictly safeguarded through the entire legal procedure to prevent excess trauma (section 23).
  • Compensation and Rehabilitation: The Act makes sure that the victim child gets rehabilitation and appropriate compensation, inclusive of medical guidance, lawful representation, and counselling (section 396 BNSS).
  • Punishment for Offenders: The Act provides harsh penalties for offenders, which might also include life imprisonment and even death sentences for heinous sexual offences. (Section 4-14).
  • National and State Commissions Roles: The Act prescribes that the National Commission for Protection of Child Rights (NCPCR), accompanied by State Commissions for Protection of Child Rights to supervise the implementation of the law and assess its effectiveness. 

International Framework

• The POCSO Act of 2012, along with Numerous International Frameworks designed to protect children from sexual abuse and exploitation. As a member of the United Nations Convention on the Rights of the Child (CRC), India is committed to safeguarding children from all kinds of violence, abuse, and exploitation.
• The POCSO Act describes the responsibilities of India under the CRC by designing a legal structure for safeguarding and prosecuting sexual offences against children. Along with that, the Act incorporates principles from The Hague Convention on the Civil Aspects of Global Child Abduction, which focuses on the protection of children from exploitation, and helps India’s pledge to the World Congress against child sexual exploitation, which was held in the year 1996.
• By including the global standard, the POCSO Act aims to provide complete safeguards for children, reconciling with global initiatives to uphold children’s rights and encourage their well-being.

Major Amendments

• Amendment in Section 2: As it is a definition clause, in subsection (1), after clause (d) following clause has been inserted, namely (da), which defines child pornography, and states any kind of depiction of sexual conduct, including childlike video, photograph.
• Amendment in Section 4: In section 4(1), the punishment for penetrative sexual assault has been increased from 7 years to 10 years. After clause (1) and clause (2) have been inserted, committing sexual assault on a child below 16 years of age shall be liable for not less than 20 years, which might extend up to life imprisonment, meaning remaining of the natural life, including a fine.
• Amendment in Section 5: In clause (j), after sub-clause (iii), a new sub-clause (iv) has been inserted, which states that for the causes of death of a child, this adds one more condition for whoever commits penetrative sexual assault on a child.
• Amendment in Section 6: After Section 5 of the Act, a new section has been inserted (Section 6) which states the punishment for aggravated penetrative sexual assault, that is, Rigorous imprisonment not less than 20 years, which might extend to life imprisonment, and a fine, or death.
• Amendment in Section 9: This states that for aggravated sexual assault after clause(u), a new clause, an addition to a description of aggravated sexual assault, has been inserted, namely (v), which defines whoever induces, persuades, entices, or coerces a child to administer directly or indirectly.
• Amendment in Section 14: A new section has been inserted, namely, punishment for using a child for pornographic purposes. The punishment is for a first conviction not less than 5 years, including a fine, and a second conviction not less than 7 years, including a fine.
• Amendment in Section 15: A new section has been inserted, namely, punishment for storage of pornographic material involving children.
  • In sub-section (1): The person storing pornographic materials to share or transmit will be held liable for, on first conviction, ₹ 5 thousand and on subsequent conviction, ₹ 10 thousand.
  • In sub-section (2): A person who stores or possesses any materials related to pornography, by propagating or displaying, or distributing. Will be held liable for up to 3 years of imprisonment, a fine, or both.
  • In sub-section (3): A person who stores pornographic materials for the purpose of commercial use will be held liable for, on first conviction, imprisonment not less than 3 years might extend to 5 years, fine or both. On subsequent conviction,n imprisonment not less than 5 years might extend up to 7 years and a fine.
• Amendment in Section 45: In this section, in sub-section (2), clause (a) has been inserted, which states the manner of deleting or destroying or reporting pornographic materials to the designated authority under section 15, sub-section(1).

Violations of the Laws

• Penetrative Sexual Assault (Section 3): Engaging in any kind of sexual intercourse, including forceful penetration. Punishment for this will be 10 years of imprisonment might extend to life imprisonment with a fine, and whoever commits this crime below the age of 16 years will be liable for 20 years imprisonment, extended to life imprisonment and a fine. (Section 4).
• Sexual Assault (Section 7): Any act of sexual assault that doesn’t involve penetration, like touching or making the child touch the private parts with sexual intent, will be liable for imprisonment not less than 3 years and might extend to 5 years with a fine. (Section 8).
• Sexual Harassment (Section 11): Doing any act or behaviour with sexual intent, like uttering any word or doing gestures, making an exhibition of his body, showing any object like pornographic material, following a child, etc, the person will be held liable for up to 3 years of imprisonment and a fine. (Section 12).
• Use of a Child for Pornographic (Section 13): Whoever uses a child for personal use or distribution for sexual gratification by including a childlike representation of sexual organs of a child, indecent or obscene representation, etc. As per (section 14) of the Act, whoever does this will be liable for the first conviction, imprisonment shall not be less than 5 years along with a fine, and on subsequent conviction, imprisonment not less than 7 years along with a fine.
• Aggravated Penetrative Sexual Assault (Section 5): Sexual offences executed by any person in. A position of trust or authority, an official like a family member, tutor, police officer in charge, employer, etc. Punishment for this offence will be Rigorous Imprisonment of not less than 20 years, extended up to life imprisonment, along with a fine (section 6).
• Child Trafficking: The Act of trafficking minors for sexual exploitation, prostitution, or forced labour is also an offence, and whomsoever doing this shall be held liable.
• Failure to Report Child Abuse: Punishment for the offence committed under Section 19 and Section 20 will be imprisonment of either description or may extend up to 6 months, a fine, or both (Section 21). Also, it states that the person who is head, in charge of any company or educational institution, and fails to report cases shall be held liable for imprisonment of up to one year and a fine (Section 21 (2)).
• Protection of Identity (Section 23): Exposing or revealing the identity of a child victim of sexual abuse is prohibited by the act. Any media that does this shall be held liable for imprisonment not less than 6 months might extend to 1 year, or a fine, or both. A proviso has been provided that one can reveal the identity if it is in the interests of the child.
• Non-Compliance with the Special Court Procedures (Section 28): Any conduct that hinders the formation of a special court or fails to comply with the child-sensitive trial procedures highlighted in the act, consequences this will vary from fines to imprisonment, depending on the severity of the violation. 

Procedure for Filing a Case

• Reporting of Offence (Section 19): Any person, inclusive of the child, who is known or likely to be known or has any kind of apprehension shall report an offense to Section 19(a) Special Juvenile police unit, Section 19(b) the local police. Also, as per Section 20, there is an obligation for media, studios, or any pornographic facilities to report such cases to the same.
• Filing the First Information Report (FIR): After the reporting of an offence, the police are mandated to document an FIR. It should be registered correctly, and in cases regarding children, the police must make the case a priority. As it is a child-sensitive procedure, the police are required to investigate child-friendly behaviour, and a female officer is preferred to conduct the interviews with child victims.
• Medical Examination: As per Section 27 of the Act, the child must undergo a medical examination by a doctor at a government hospital, with consent. This will be conducted within 24 hours of the offence committed. The medical examination should be a child-friendly process so that it doesn’t cause any trauma for the child.
• Investigation: The Investigation is time-bound; it should be concluded within 2 months from the reporting of the case. Protection of the victim is mandatory, and the identity should remain confidential.
• Filing of  Charge-sheet: The police gather everything and file a charge sheet in court detailing the offense and the evidence collected. The court process for this involves a charge sheet that should be presented in the special court under section 28.
• Trials in Special Court: Every Trial that is conducted should be child-friendly, there will be in-camera proceedings conducted privately, also requires a supporting person is required during the trial proceedings, like a relative or social worker.
• Safeguarding of the Child Victim: Confidentiality is mandatory throughout the case; any violation will be subject to penalties. If necessary, the court provides counselling and rehabilitation for the child’s well-being.
• Judgment and Sentencing: After evaluating every aspect of the case and the presentation of testimonies, the Special Court pronounces a judgment. If the accused is found guilty, the court will pronounce punishment per the POCSO Act.
• Appeals: If any of the parties is not satisfied with the judgment have the right to file an appeal challenging the verdict in the higher court.

How Can Seasoned Advocates Help You?

• Assisting the Family and Victim: Legal advice to a child’s family in planning a route through a difficult legal system, by helping them ease the mandatory steps, the rights of a child, and safeguards under the act. Ensure that victims’ rights are always protected, like confidentiality at all times.
• Protecting the Interests of the Child: Ensure all the trials related to child sexual abuse shall be held in a closed courtroom, by assisting with compensation for the child victim, covering necessary medical treatment, etc.
• Delivering Skilled Legal Representation: Possess a deep understanding of the law, legal judgments, and court protocols, ensuring that the case is effectively presented in the special court. They are so good at countering defences to protect the child’s interests.
• Advocacy for Justice and Fair Compensation: Ensure justice for the victim by recognising the seriousness of the case and the circumstances. Provide post-conviction assistance, like as appeals if not satisfied with the judgment of the court.
• Educating the Layman and Raising Awareness: Engage in public awareness initiatives, workshops, and seminars focusing on educating the community about the POCSO Act.  

Conclusion

The POSCO Act of 2012 establishes a mandatory legal framework focusing on protecting children from sexual offences, holding offenders guilty, and giving mandatory support and care to child victims. It highlights several types of sexual abuse, as mentioned above, with severe penalties, including felony penalties for offenders. The Act emphasizes the essentials of the dignity of a child, ensuring investigations are conducted in a child-friendly manner. To know more, contact us.