POCSO Act

Legal Framework of the POCSO Act in India

• The POCSO Act: The Protection of Children from Sexual Offences Act, 2012, is a legislation that focuses on protecting children from sexual abuse, sexual harassment, exploitation, pornography, and similar sexual offenses. This legislation was enacted to address the increasing cases of child sexual abuse and to impose severe penalties on offenders. This Act also facilitates a judicial process that is sensitive to the needs of children.
• Applicability: The POCSO Act, 2012, applies to minors who are under the age of 18 years in India, irrespective of background and gender, protecting various forms of sexual exploitation. It covers offenses like penetrative and non-penetrative sexual assault, sexual harassment, and the use of children for pornographic purposes. This Act is applicable throughout the nation and its territories, demanding the establishment of special courts that are fully designated for handling cases of child sexual abuse.
• Key Features
  • Types of Offences: This Act addresses numerous forms of sexual offenses, which include Section 3, penetrative sexual assault, Section 7, non-penetrative sexual assault, Section 11, sexual harassment, Section 13, exploitation of a child for pornographic purposes, and many others. The Act outlines stricter penalties for offenses involving aggravated aspects, such as when the offender is a close friend or relative of a child mentioned under Section 5 and 9.
  • Child-Friendly Judicial Procedures
    • Special Court: Section 28 of the Act provides for the establishment of special courts to manage issues covered by the POCSO Act, ensuring faster trials and child-sensitive hearings.
    • In-Camera Trials: Section 37 of the Act provides for in-camera trials, which are held in private settings to protect the privacy of children.
    • Recording of Statements: According to Section 24 and 25, the statements of the de facto complainant are recorded in a manner that minimizes trauma, utilizing child-friendly techniques.
    • Mandatory Reporting: Section 21 of the Act aims for compulsory reporting of child sexual offenses by any person who comes to know or is aware of it, including parents, doctors, teachers, and others. Failure to report such crimes may lead to a penalty.
  • Time-bound Investigation and Trial
    • Trial Timelines: The trial shall be completed within one year from the date of taking cognizance, as mentioned under Section 35. 
    • Identity Protection: Section 23 of the Act provides for the protection of a victim child's identity, which helps prevent further trauma.
    • Compensation and Rehabilitation: The 2019 Amendment ensures that the victim child receives rehabilitation and appropriate compensation, including medical guidance, legal representation, and counseling, as provided under Section 396 of the BNSS.
    • National and State Commissions' Roles: The Act stipulates that the National Commission for Protection of Child Rights (NCPCR), in conjunction with State Commissions for Protection of Child Rights, shall oversee the implementation of the law and ensure its effectiveness. 

International Framework

• India is a member of the United Nations Convention on the Rights of the Child (CRC) and 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.
• The POCSO Act incorporates principles from the Hague Convention on the Civil Aspects of Global Child Abduction, which focuses on the protection of children from exploitation. It aligns with India's pledge to the World Congress against child sexual exploitation, which was held in 1996.
• By incorporating the global standard, the POCSO Act aims to provide comprehensive safeguards for children, aligning with international initiatives to uphold children's rights and promote their well-being.

Significant Amendments

• Section 2: Section 2(1)(da) is introduced, which defines child pornography.
• Section 4: Under Section 4(1), the punishment for penetrative sexual assault has been increased from 7 years to 10 years. Under Section 4(2), committing penetrating sexual assault on a child below 16 years of age shall be liable for a punishment which shall not be less than 20 years, and which might extend up to life imprisonment, including a fine.
• Section 5:  Section 5(j)(iv) has been inserted regarding the punishment for the death of a child caused by any such offenses as described in the Act.  
• Section 6: Section 6 states the punishment for aggravated penetrative sexual assault,  which is a rigorous imprisonment of not less than 20 years, which might extend to life imprisonment, with a fine, or death.
• Section 9: Section 9(v) states that anyone who induces, persuades, entices, or coerces a child to get administered or administers directly or indirectly any drug, hormone, or chemical for early sexual maturity will also be held guilty for aggravated sexual offense. 
• Section 14: According to Section 14, the punishment for using a child for pornographic purposes has been increased with the widened scope covered for such an offense. The sentence for a first conviction is not less than 5 years, with a fine, and for a second conviction, the sentence will not be less than 7 years, with a fine.
• Section 15: The punishment for the storage of pornographic material involving children has been increased. 
  • Section 15(1): If a person stores pornographic materials to share or transmit, they will be held liable for a penalty, which on a first conviction will be ₹5 thousand and, on a subsequent conviction, ₹10 thousand.
  • Section 15(2): If any person stores or possesses any materials related to pornography, by propagating or displaying, or distributing, they will be held liable for a penalty of up to 3 years of imprisonment, a fine, or both.
  • Section 15(3): If a person stores pornographic materials for the purpose of commercial use, they will be held liable for a penalty, which will be, on the first conviction, imprisonment for not less than 3 years, which might extend to 5 years, a fine, or both. Upon subsequent conviction, imprisonment for a term of not less than 5 years may be extended up to 7 years, along with a fine.

Violations of the Laws

• Penetrative Sexual Assault (Section 3): Section 3 of the Act defines penetrative sexual assault, which means any kind of sexual intercourse, including forceful penetration. According to Section 4, the punishment for this offense is 10 years of imprisonment, which may be extended to life imprisonment, along with a fine. Whoever commits this crime below the age of 16 years will be liable to imprisonment for 20 years, which may extend to life imprisonment, and a fine.
• Aggravated Penetrative Sexual Assault (Section 5): Section 5 of the Act defines aggravated penetrative sexual assault, executed by any person in a position of trust or authority, such as an official, a family member, tutor, police officer in charge, employer, etc. The punishment for the offense will be a rigorous Imprisonment of not less than 20 years, which may be extended up to life imprisonment, along with a fine, as mentioned under section 6.
• Sexual Assault (Section 7): Section 7 of the Act defines non-penetrative sexual assault, such as touching or making the child touch the private parts with sexual intent, as liable for imprisonment not less than 3 years and might extend to 5 years with a fine, as mentioned in Section 8.
• Sexual Harassment (Section 11): Section11 of the Act defines sexual harassment, any act or behavior with sexual intent, such as 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 as outlined under Section 12.
• Use of a Child for Pornographic (Section 13): Section 13 of the Act defines the use of a child for personal use or distribution for sexual gratification by including a childlike representation of the sexual organs of a child, indecent or obscene representation, etc, will be held liable for the first conviction, which shall be the imprisonment for not less than 5 years along with a fine, and on subsequent conviction, imprisonment not less than 7 years along with a fine.
• Failure to Report Child Abuse: The punishment for the offense committed under Section 19 and 20 for non-reporting the sexual offense committed against a child will be imprisonment of either description for up to 6 months, a fine, or both, as outlined under Section 21. Additionally, it states that the person in charge of any company or educational institution who fails to report cases shall be held liable for imprisonment of up to one year and a fine.
• Protection of Identity (Section 23): Exposing or revealing the identity of a child victim of sexual abuse is prohibited by the Act. Any media violating the rules mentioned under this section shall be held liable for imprisonment not less than 6 months, which 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.

Procedure for Filing a Case

• Reporting of Offence (Section 19): Any person who is known or likely to be known or has any apprehension for any offense against a child shall report an offense under Section 19(1)(a) to the Special Juvenile Police Unit or under Section 19(b) to the local police. Additionally, as per Section 20, there is an obligation for media, studios, or any pornographic facilities to report such cases to the relevant authorities.
• Filing the FIR: After an offense is reported, the police are required to document an FIR. In such cases regarding children, investigation should be a top priority. As it is a child-sensitive procedure, the police are required to investigate child-friendly behavior, and a female officer is preferred to conduct the interviews with the child victim.
• Medical Examination: As per Section 27 of the Act, the child must undergo a medical examination by a doctor at a government hospital, with the consent of the parents or guardians (if applicable). The medical examination should also be in a child-friendly manner so that it doesn't cause any trauma for the child.
• Filing of Charge Sheet: The police gather all the evidence 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.
• Judgment and Sentencing: After evaluating every aspect of the case and considering the testimonies presented, the Special Court pronounces its judgment. If the accused is found guilty, the court will pronounce the sentence as prescribed by law.

How Can Seasoned Advocates Help You?

• Legal Assistance: POCSO is a special legislation that contains technicalities and operates on the concept of 'presumption'; hence, the accused shall be considered innocent until they prove themselves guilty. Whether you are a victim or an accused, legal assistance is necessary to navigate your case effectively. 
• Legal Representation: Possess a deep understanding of the law, the courtroom procedure, legal precedents, and court protocols, ensuring that the case is effectively represented in the special court. Seasoned Advocates help protect the rights of their clients through effective representation, ensuring a fair trial. If representing the accused, it should be taken into consideration that the process of cross-examination of the de facto complainant is done differently, as direct cross-examination is not allowed, and trials are held on 'presumption of law', which requires a more diligent approach.      
• Education and 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 offenses, 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 importance of a child's dignity, ensuring that investigations are conducted in a manner that is child-friendly and respectful. To know more, contact us.