The Leading Provider of Online Consultation, Legal Services, Education and Training

POCSO Act

Legal Framework of POCSO Act in India

  • The POCSO Act, officially known as Protection of Children from Sexual Offences Act, 2012, is an Indian Law focuses at 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 easy for a judicial process that is sensitive for children.
  • Historical Context: The POSCO Act, 2012 was implemented in the Country as a reply for the increasing awareness adjoining the previous masters of child sexual abuse, which had frequently not reported and not even properly addressed by the previous legal structure. Before POCSO Act the matters of child sexual abuse was dealt by more general provisions of the IPC (now it is BNS) which were not specifically designated to the necessities of child victims. This lead to the demands of child rights organisations, activists and the stronger judiciary for lawful protections. 
  • Applicability: The POCSO Act, 2012 is applicable to everyone who is under the age of 18 years in India, irrespective of background, 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 use of children for the purpose of pornography. This act is enforceable in whole India and its territories, demanding the establishment of special courts which 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 safeguard from sexual abuse for every children, irrespective of gender, background.
    • Types of Sexual Offences: This Act addresses numerous forms of sexual offences, which includes: 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 offender is close friend, relative of a child (section 5).
  • Child Friendly Judicial Procedures
    • Special Court: The Act mandates the establishment of special courts to manage with issue covered by the POSCO act, encircling faster trials and child sensitive hearings (section 28).
    • On-Camera Trials: Trials are being held in private settings to protect the privacy of child (section 37).
    • Statements Recording: The statement of 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 person who came to know or who is aware of it, inclusive of parents, doctors, teachers, and others. Not reporting will be subjected to the penalties stated in (section 19).
  • Time-bound Investigation and Trial
    • Span of Trial: Investigations should be concluded within two months of the offence being registered. The trial should be completed within a year from the date of offence stated (section 35). 
    • Identity Safeguarding: The identity of the victim child is strictly safeguarded through the entire legal procedures to prevent excess trauma (section 23).
    • Compensation and Rehabilitation: The Act makes sure that 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 imprisonments and even death sentences for heinous sexual offences. (Section 4-14).
    • National and State Commissions Roles: The Act prescribes for 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 access 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 nation member to the United Nations Convention on the Rights of the Child (CRC), India is committed to safeguard children from all kinds of violence, abuse and exam.
  • The POCSO Act describes responsibilities of India under the CRC by designing a legal structure for safeguarding and prosecution of sexual offences of child. Along with that, the Act incorporate principles from The Hague Convention on the Civil Aspects of global child Abduction, which focuses on protection of children from exploitation, and help India’s pledge to the world Congress against child sexual exploitation which was held in the year 1996.
  • By including the global standards 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

The Amendment act of 2019 made significant changes to the original act of 2012, give below the key changes made by the amendment:

  • Amendment in Section 2: As it is definition clause, In the subsection (1) after the clause (d) following clause  have been inserted namely (da), which defines for the child pornography, which states any kind of depiction of sexually visibility conducts inclusive of 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. And after clause (1), the clause (2) have been inserted committing sexual assault on child of below 16 years of age shall be liable for not less than 20 years which might extend up to life imprisonment means remaining of the natural life inclusive of fine.
  • Amendment in Section 5: In clause (j) after sub-clause (iii), an new sub-clause (iv) have been inserted which states for causes death of a child, this added one more condition for whoever commits penetrative sexual assault on a child.
  • Amendment in Section 6: After section 5 of the act the new section has been inserted (Section 6) which states for the punishment for aggravated penetrative sexual assault that is, Rigorous imprisonment not less than 20 years which might extend to life imprisonment and fine.
  • Amendment in Section 9: This states for aggravated sexual assault after clause(u) a new clause , an addition to description of aggravated sexual assault, have been inserted namely (v) which defines whoever induces , persuades, entices, or coerce a child for administering directly or indirectly.
  • Amendment in Section 14: A new section have been inserted namely, punishment for using child for pornographic purposes, the punishment is for first conviction not less than 5 years inclusive of fine. And for second conviction not less than 7 years inclusive of fine.
  • Amendment in Section 15: A new section has been inserted namely, punishment for storage of pornographic material involving child.
    • In sub-section (1): The person storing pornographic materials with intention to share or transmit will be held liable for, on first conviction 5 thousand rupees and on subsequent conviction 10 thousand rupees.
    • In sub-section (2): A person who stores or possess any materials related to pornographic, by propagating or displaying or distributing. Will be held liable for up to 3 years of Imprisonment and fine.
    • 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 imprisonment not less than 5 years might extend up to 7 years, fine or both.
  • Amendment in Section 45: In this section in sub-section (2) clause (a) has been inserted which states for the manner of deleting or destroying or reporting about pornographic materials to the designated authority under section 15 sub-section(1).

Violations of the Laws

Violations highlighted in the POCSO Act, 2012 cover a wide range of offences concerning to the sexual abuse, exploitation and minors trafficking. These offences are termed as heinous crimes, and the law authorize severe penalties for those found guilty. Given below are few violations specified in the Act:

  • Penetrative Sexual Assault (Section 3): Engaging in any kind of sexual intercourse, inclusive of forcefully penetration. Punishment for this will be 10 years of imprisonment might extend to life imprisonment with fine l, and whoever does this crime with below the age of 16 years old will be liable for 20 years imprisonment extend to life imprisonment and fine. (Section 4).
  • Sexual Assault (Section 7): Any act of sexual assault that doesn’t involves penetration, like touching or make 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 wilt fine. (Section 8).
  • Sexual Harassment (Section 11): Doing any act or behaviour with sexual intent like utters any word or doing gestures, making an exhibit his body, showing any object like pornographic, following of a child etc. the person will be held liable for up to 3 years of imprisonment and fine. (Section 12).
  • Use of a Child for the Purpose of Pornographic (Section 13): Whoever uses child for personal use or for distribution for the purpose of 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 first conviction imprisonment shall not be less than 5 years along with fine. And on subsequent conviction imprisonment not less than 7 years along with fine.
  • Aggravated Penetrative Sexual Assault (Section 5): Sexual offences executed by any person in. A position of trust or authority, an officials like family member, tutor, and police officer in charge, and employer etc. punishment for this offence will be Rigorous Imprisonment not less than 20 years extend up to life imprisonment along with fine (section 6).
  • Child Trafficking: The act of trafficking minors for the purpose of 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, fine or both (section 21). Also it states for the person who is head, in charge of any company or educational institution and fails to report cases shall be held liable for imprisonment up to one year and fine (Section 21 (2)).
  • Protection of Identity (Section 23): Exposing or revealing the identity of a child victim of sexual abuse, which is absolutely prohibited by the act. Any media who does this shall be held liable for imprisonment not less than 6 months might extend to 1 year or fine or both. Proviso have been provided one can reveal the identity if it is in the interests of child.
  • Non-Compliance with the Special Court Procedures (Section 28): Any conduct that hinders the formation of special court or fails to comply with the child sensitive trial procedures highlights in the act, consequences for this will be vary from fines to imprisonment all depends on the severity of the violation. 

Procedure for Filing a Case

The process for submission of a case under the POCSO Act includes many difficult steps focused at making sure a child sensitive approach. The prior objective is to make sure the child victim is given with appropriate protection, guidance and justice. Given below are the essential steps that are involved in a case:

  • Reporting of Offence (Section 19): Any person inclusive of child who is known or likely to be known or has any kind of apprehension shall report an offense to the Section 19(a) Special Juvenile police unit Section 19(b) the local police. Also as per Section 20 there is an obligation to media, studio 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 is 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 a child sensitive procedure the police is required to investigate in a child friendly behaviour, women 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 government hospital, with the consent. This will be conducted within 24 hours of the offence committed. The medical examination should be in a child friendly process so that it doesn’t cause any trauma for the child.
  • Investigation: The Investigation is a time bound it should be concluded within 2 months from the reporting of case, protection of 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 charge sheet should be presented in the special court under section 28.
  • Trials in Special Court: Every Trail that is conducted should be child friendly, there will be in-camera proceedings conducted privately, also require a supporting person during the trial proceedings like relative, or social worker.
  • Safeguarding of the Child Victim: Confidentiality is mandatory throughout the case, any violation will be subjected to penalties. If necessary the court provides counselling and rehabilitation to the child’s well-being.
  • Judgement and Sentencing: After evaluating every aspect of the case and the presentation of testimonies, the Special Court pronounce a judgement, if the accused found guilty the court will pronounce punishment in accordance with the POCSO Act.
  • Appeals: If any of the party is not satisfied with the judgment have the right to file an appeal challenging the verdict in the higher court.

How Seasoned Advocates Will Help

Knowledgeable legal professionals plays a vital role in making sure that cases under POSCO Act, 2012 are handled efficiently and with the greatest level of sensitivity, swing the delicate nature of child sexual abuse cases. Their experience can effectively help both the child victim and entire legal proceedings in different ways:

  • Assisting the Family and Victim: Seasoned Lawyers are expert giving legal advices to child’s family in planning a route through difficult legal system, by helping them easing the mandatory steps, the rights of a child and safeguards under the act. They ensure that victim’s rights are always protected like confidentiality at all times. They also provide emotional assistance to alleviate the emotional strain on the family.
  • Handling Sensitive Testimony: They often take child centred approach at managing testimonies, they make sure that child does not goes through any stressful or intimidating questioning, they are expert in professional evaluation as they work with psychologists or counsellors if needed for the child’s well-being.
  • Protecting the Interests of Child: They make sure all the trials related to child sexual abuse shall be held in the closed courtroom, by assisting for compensation for the child victim covering necessary medical treatment etc.
  • Ensuring Correct Legal Proceedings: Seasoned advocates aid guarantee that investigation is carried out correctly and within the legal time designated, they also actively work for fast tracked trials as the cases should be resolved within a year.
  • Delivering Skilled Legal Representation: Knowledgeable advocates possess a deep understanding of the law, legal judgements, and court protocols, making sure that the case is effectively presented in the special court. They are so good in countering defences to protect the child’s interests.
  • Advocacy for Justice and Fair Compensation: They make sure the justice for the victim by recognising the seriousness of the case and circumstances. They also provide post-conviction assistance like in appeals if not satisfied with the judgment of the court.
  • Educating the Layman and Raising Awareness: They often engage in public awareness initiatives, workshops and seminars focusing at educating the community about the POCSO Act.  

Conclusion

The POSCO Act of 2012 establishes a mandatory legal framework focusing at 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 inclusive of fealty penalty on offenders. The Act emphasizes the essentials of a dignity of a child making sure investigations are conducted in a child friendly manner. To know more, contact us.

X

Share it