A Comprehensive Analysis of the POCSO Act, 2012

Why this matters?

The material is an overview of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Rather than a case brief concerning a single judicial decision, it is significant for explaining the statutory framework governing sexual offences against children in India, including penetrative sexual assault, sexual assault, sexual harassment, and child pornography.

The POCSO Act is particularly important because it creates a specialized legal framework for offenses against children and provides for special courts under Section 28. Its provisions distinguish between ordinary and aggravated forms of sexual offenses and prescribe specific punishments for each category. The Act also adopts a broad approach to sexual harassment, covering conduct involving words, gestures, digital communication, following or contacting a child, and pornographic material.

The discussion of the 2019 amendments further demonstrates how the statutory framework was expanded to address additional forms of aggravated assault and offenses involving child abuse material. For legal students, researchers, and practitioners, the material is useful because it connects the statutory provisions with judicial interpretation, including the treatment of sexual assault in Satish Ragde versus State of Maharashtra and Libnus S/O Fransis Kujur versus State of Maharashtra.

Introduction

The Protection of Children from Sexual Offenses Act was passed in India in 2012. Before the respective legislation, there was no separate act safeguarding minors from sexual offenses. Though there were specific provisions dealing with the same in the Indian Penal Code of 1860, realizing the increasing crime rate against children, a need to bring a separate legislation was felt.

Enacted to safeguard children from rising cases of sexual offenses, the act plays a major constructive step towards ensuring speedy trials and effective judicial mechanisms.

The act penalizes various acts such as child pornography, sexual assault, sexual harassment, etc., not only against minor girls but also against boys, and imposes stringent punishments as well.

Since the enactment of the act, it has played an essential role in the reporting and prosecution of sexual offenses against children. It has also been crucial in spreading awareness amongst the general public and highlighting the need for reporting such cases.

The provision for the establishment of special courts in each district to deal with offenses falling under the act is one of the most commendable steps taken toward the safeguarding of children since its enactment.[1]

Classification of offenses under the act

Under the act, Chapter II deals with the offenses against children, and Chapter III deals with the offense of using children for pornography. The offenses under the act can be classified into four categories namely;

1.      Penetrative sexual assault

2.      Sexual assault

3.      Sexual harassment

4.      Child pornography

Penetrative Sexual assault: Penetrative Sexual assault is dealt with from section 3 to section 6 of the act. Section 3 defines penetrative sexual assault, and Section 4 prescribes a punishment of not less than seven years,** which may extend to life imprisonment, and shall also be liable to fine[2].

The definition of penetrative sexual assault under the act is somewhat similar to and identical to the definition of Rape under the Indian Penal Code.

Section 5 of the act deals with the aggravated form of the offense dealt in u/s 3 of the code. It deals with conditions such as penetrative assault committed by a person in authority or on a disabled child, or gang penetrative assault or assault committed with deadly weapons.

The offences committed under sections 3 and 5 are of the same genus, but section 5 deals with a more aggravated and serious kind. The punishment for offenses punishable under section 5 is prescribed under section 6, which is rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine[3].

Sexual assault: The offense of Sexual assault is dealt with in Sections 7 to 10. Section 7 defines sexual assault as the act of touching the vagina, penis, anus, or breast of the child or making the child touch the vagina, penis, anus, or breast of such person or any other person with sexual intent, or any other act with sexual intent which involves physical contact without penetration.[4] Punishment of which is prescribed under section 8 of the act, which is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

The punishment prescribed under POCSO for sexual assault, as compared to the punishment for sexual assault under the Indian Penal Code, is of more duration and is more stringent, which implies that the POCSO Act treats sexual assault as a more serious offense[5].

Section 9 of the act deals with the aggravated offense prescribed u/s 7, the punishment for which is prescribed under section 10, which is imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Sexual Harassment: Sections 11 and 12 of the act deal with the offense of sexual harassment. Section 11 classifies several acts as an act of sexual harassment, such as;

(i)                 act of uttering any word or making any sound, or making any gesture or exhibiting any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child; or

(ii)              making a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii)            showing any object to a child in any form or media for pornographic purposes; or

(iv)             repeatedly or constantly following, watching, or contacting a child either directly or through electronic, digital, or any other means; or

(v)               threatening to use, in any form of media, a real or fabricated depiction through electronic, film, digital, or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi)             enticing a child for pornographic purposes or giving gratification thereof[6].

Compared to the Indian Penal Code, the definition of sexual harassment given in section 354A of the Indian Penal Code is very different from the definition under the POCSO Act. The definition under the POCSO Act is much wider in scope and covers every such act that exposes the child sexually.

Section 12 of the act prescribes punishment for sexual harassment, which is imprisonment of either description for a term which may extend to three years, and shall also be liable to a fine.

Child Pornography: Chapter III of the act deals with the offense of using children for pornographic purposes and punishments thereof. Section 13 of the act makes the act of using a child in any form (whether printed or electronic) for sexual gratification a punishable offense, which is punishable as per the punishments prescribed under section 14 of the act.

Also, section 15 makes the storing for commercial purposes of any pornographic material in any form involving a child a punishable offense with a punishment of imprisonment of either description, which may extend to three years, or with a fine or with both.

Therefore, to conclude, the act strictly prohibits child pornography in any form. The section runs parallel to sections 3 and 4 of the Indecent Representation of Women Act, which prohibit the production and publication of materials containing indecent representation of women.

Highlighting the 2019 amendments

Witnessing the increased cases even after the enactment of the POCSO Act, more stringent provisions and strict punishments were the need of the hour. Therefore, the POCSO Act was amended in 2019 to increase the punishments for the offenses prescribed earlier.

The table gives a broader and better understanding of the 2019 amendment:

[table]

The 2019 amendment also widened the definition of aggravated sexual assault by adding two new sub-clauses.

(i)     assault committed during a natural calamity, and

(ii) administering or helping in administering any hormone or any chemical substance to a child for the purpose of attaining early sexual maturity.

In reference to child pornography, apart from the existing offenses, the act added two new offenses, which are as follows;

(i)     Failing to report, destroy, or delete pornographic material that involves a child.

(ii)  Displaying, distributing, or transmitting such material except to report it.

Challenges and criticism

Despite the act being very progressive in safeguarding minors from sexual offenses, its implementation has faced several issues, and the rate of sexual crimes against children continues to go up. Some of the problems are listed below;

1.      Underreporting: The first and foremost concern is that most of the cases involving children, especially girls, go unreported due to a variety of reasons, such as social stigma, fear, and lack of awareness of available legal remedies.

2.      Delay in proceedings: Even after the cases are reported, due to backlogs and judicial delays, the cases take too long to be decided, which adds to the trauma of the victim, making them more vulnerable. A famous saying, ‘justice delayed is justice denied,’ fits aptly in such situations.

3.      Restrictive interpretation: There have been numerous cases in which the courts have restricted their interpretation. For instance, in the case of Satish Ragde v. State of Maharashtra[7], the Nagpur Bench of the Bombay High Court remarked that pressing the breasts of a 12-year-old girl without removing her clothes is not an offense under section 7 of the act, but it shall be punishable under section 354 of the Indian Penal Code. This decision implies that skin-to-skin contact is an essential part of sexual assault. Hence, this decision was widely criticized.

In another case of Libnus S/O Fransis Kujur v. State of Maharashtra[8], the court held that the act of unzipping the pants and holding hands with the child does not amount to sexual assault under the POCSO Act.

Such pronouncements make the common man lose faith in the judicial system and discourage them from reporting cases.

4.      Lack of education and resources: Most of the rural population is illiterate. Hence, lack of awareness and education leads to ignorance. Apart from stringent provisions for the offenders, several steps should be taken to organize legal campaigns to educate people about their rights.

Conclusion

The challenging step is never the enactment of any act but its implementation. Thus, in the case of POCSO, 2012, too, the act no doubt has been a positive step towards safeguarding minors from sexual exploitation, yet its robust implementation is still a challenge in India. For its effective implementation, the general public needs to hold hands together with the Indian Judiciary and keep faith in it.

Author(s): Vaidehi Sharma, Mohanlal Sukhadia University

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[1] Section 28 of the Protection of Children from Sexual Offences Act, 2012

[2] Section 3 and 4 of the Protection of Children from Sexual Offences Act, 2012

[3] Section 5 and 6 of the Protection of Children from Sexual Offences Act, 2012

[4] Section 7 of the Protection of Children from Sexual Offences Act, 2012

[5] Section 354 of the Indian Penal Code, 1860

[6] Section 11 of the Protection of Children from Sexual Offences Act, 2012

[7] Criminal Appeal No. 161 of 2020

[8] Criminal Appeal No. 445 of 2020