- The limits of POCSO
Editorial: The limits of POCSO
- A single bench of the Madras High Court recently allowed a petition seeking to quash a case of kidnap, aggravated penetrative sexual assault and aggravated sexual assault of a minor.
- GS Paper 2: Welfare Schemes (centre, states; performance, mechanisms, laws, institutions and bodies constituted for protection of vulnerable sections);
- A recent judgment highlights the need to reconsider POCSO’s absolutist approach to adolescent sexuality needs. Discuss. 15 Marks
Dimensions of the Article:
- What is POCSO Act?
- Salient features of the Act
- Key Provisions of the Protection of Children from Sexual Offences (POCSO) Rules, 2020
- Issues related to POSCO Act:
- Measures taken by the Government
- About POCSO Amendment Act 2019
- Way Forward
What is POCSO Act?
- The Act seeks to protect children from offences such as sexual assault, sexual harassment, and pornography.
Salient features of the Act
- Defines a child as any person below eighteen years of age
- Gender neutral Act: meaning the act deals with crimes of such nature done to both male or female child.
- Provides for mandatory reporting of sexual offences, keeping with the best international child protection standards.
- Police cast in the role of child protectors during the investigative process: The police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child.
- Provisions for the medical examination of the child in a manner designed to cause as little distress as possible
- Provision of Special Courts: that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner.
- Timely disposal of cases: A case of child sexual abuse must be disposed of within one year from the date the offence is reported.
- Recognition to a wide range of form of sexual abuse against children: as punishable offences,.
- People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
Key Provisions of the Protection of Children from Sexual Offences (POCSO) Rules, 2020
- Mandatory police verification of staff in any institution housing children or coming in regular contact with children like schools, care homes, sports academies etc.
- State Governments to formulate a child protection policy based on the principle of zero-tolerance to violence against children, which shall be adopted by all institutions, organizations, or any other agency working with, or coming in contact with children.
- Sensitization of official and Awareness: Central Government and State Governments shall
- Provide periodic training (like sensitization workshops etc.) to all persons, coming in contact with the children, to sensitize them about child safety and protection.
- Orientation programme and intensive courses for police personnel and forensic experts for building their capacities in their respective roles on a regular basis.
- Prepare age-appropriate educational material and curriculum for children, informing them about personal safety, emotional and mental wellbeing, reporting mechanisms including Childline helpline services (toll free number-1098) etc.
- Reporting of child pornography: Any person who has received any pornographic material involving a child or any information regarding such pornographic material shall report the contents.
Issues related to POSCO Act:
- High number of cases: According to National Crime Records Bureau data, Cases registered under POCSO rose by 4.4 percent in 2016 over 2015.
- In 93.6% cases of aggravated penetrative sexual assault on children, the perpetrator was known to the victim. The most common perpetrators were family members/friends/neighbours/other known persons.
- Low reporting of crimes against boys: As per NCRB data, only 2.8% of all the instances of sexual crimes against children in 2017 were reported to be committed against boys, indicating that most cases remain undisclosed.
- Elimination of Child pornography: There was a need felt to make rules for prescribing the manner in which pornographic material involving a child can be deleted, destroyed or reported.
- Lack of provisions to protect children from assault in times of natural calamities and disasters
Measures taken by the Government
- Child Protection Services (CPS): It is a centrally sponsored scheme (erstwhile Integrated Child Protection Scheme) for supporting the children in need of care and protection (CNCP).
- The Criminal Law (Amendment) Act, 2013: was enacted for effective deterrence against sexual offences. Further, the Criminal Law (Amendment) Act, 2018 was enacted to prescribe even more stringent penal provisions including death penalty for rape of a girl below age of 12 years.
- Investigation Tracking System for Sexual Offences: It is an online analytic tool for police called has been launched to monitor and track time-bound investigation on sexual assault cases in accordance with the Criminal Law (Amendment) Act, 2018.
- National Database on Sexual Offenders: It has been launched to facilitate investigation and tracking of sexual offenders across the country by law enforcement agencies.
About POCSO Amendment Act 2019
- Increases the minimum punishment (including death penalty) for penetrative sexual assault, aggravated penetrative sexual assault.
- The earlier amendment allowed the death penalty only in cases of sexual assault of girls below 12 years but now it will be applicable to boys also.
- Adds assault resulting in death of child, and assault committed during a natural calamity, or in any similar situations of violence into Aggravated penetrative sexual assault.
- Tightened the provisions to counter child pornography. While the earlier Act had punishment for storing child pornography for commercial purposes, the amendment includes punishment for possessing pornographic material in any form involving a child, even if the accused persons have failed to delete or destroy or report the same with an intention to share it.
- The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer-generated image indistinguishable from an actual child.
- The recent Supreme Court judgement highlighted the urgent need for a reconsideration of the absolutist approach of POCSO when it comes to the sexual interactions of adolescents with other young people.
- Courts need to be able to strike a balance between the limited but developing capacity of adolescents to consent to sexual interaction and their vulnerability to being groomed, abused, and exploited.
- For this to be possible, the legislature must provide clarity on the core wrongs that POCSO is meant to address, so that valid conclusions may be drawn about what is the intent of the law, and what is clearly outside its purpose.