The Protection of Children from Sexual Offences (POCSO) Act, 2012 was in the news recently due to the amendments made in the act. In the past few years different amendments have been suggested for the POCSO act in order to increase its efficiency. In 2018, the government started to work on modifying and improving the provisions of the act. The amendments to POCSO act were passed by the Parliament in 2019 which has enhanced the punishments for child sex abuse and has removed certain gender inequalities that were present in the act of 2012. The new rules have included equal laws for boy as well as girl child, it has given certain responsibilities to the state governments with respect to policy formulation for improving the law and it has also focused on need of proper education for success of the act. In March 2020, the Union government notified the Protection of Children from Sexual Offences Rules, 2020 which has enabled the implementation of the amendments that were passed in 2019. The new rules under POCSO act came into force from March 9, 2020.
POCSO Act is an explicit act dealing with offences related to sexual abuse of children that came into force in 2012. IPC provisions were followed to deal with cases related to sexual abuse of children prior to the introduction of POCSO. The main aim of POCSO act was to serve as a deterrent and to eradicate the evil of child sex abuse. In order to increase the efficiency of the act and to make the laws more stringent, the government recently passed amendments in the act that came into force in March, 2020 under the name “Protection of Children from Sexual Offences Rules, 2020.”
Why POCSO Act came to be?
Sexual abuse of children is a menace that has spread its root deep and wide in India. Besides being derogatory, child sexual abuse is an ethical issue which needs to be eradicated from the root. Sexual abuse on children leaves long lasting effects on their life. It leads to variety of other issues like relationship problems, suicidal tendencies, substance abuse, decline in academic performance, post traumatic stress disorder and poor physical as well as mental health. Apart from having the right to live a peaceful life, each child has the right to live a dignified life.
India has a population of about 135 crores and about 40% of the population are under the age of 18 years. In 2007, a government survey stated that about 53% of the children had experienced some form of sexual abuse and majority of them had been subject to sexual abuse at the hands of some related person. This massive number of child victims had become a social evil that Indian society was struggling to deal with. Till 2012, sexual offences against children used to be dealt under the provisions of IPC and no specific law existed to address sexual abuse on children. In the backdrop of the massive number of cases of sexual offences against children, government of India in May 2012 passed the Protection of Children from Sexual Offences Act, 2012 which came to be known as the POCSO act. The POCSO act came into force on November 14, 2012 and it was an explicit law to deal with sexual offences against children i.e. persons under the age of 18 years. India is a signatory to the United Nations Convention on the Rights of The Child since 1992 and as a signatory it was India responsibility and mandatory obligation to exclusively define the crime of sexual offences against children and provide measures to deal with it. The POCSO act fulfils this obligation of India as well.
Provisions under POCSO act of 2012
POCSO act deals with offences related to sexual abuse of children and issues related to child pornography. The 2012 act had 46 provisions which established a framework for reporting of offences against children that were not included under IPC provisions and punishment for such offences. The act of 2012, provides for punishment of maximum 5 years for use of child for pornographic purposes, punishment of minimum 10 years and maximum life imprisonment for cases in of penetrative sexual assault, punishment of life imprisonment for aggravated penetrative sexual assault, punishment of minimum 6 years and maximum of 8 years for sexual assault, punishment of minimum 8 years and maximum 10 years for aggravated sexual assault
POCSO defines different terminologies related to such offences like “penetrative sexual offence”, “sexual assault”, “sexual harassment” etc. As per the act, offence when committed by police personnel, public servants, members of remand homes, jail officials, hospital authorities, members of armed forces etc were to be treated as graver and punishments had been outlined to deal with such cases. It has been mentioned in the act that child friendly approach needs to be adopted while recording statement of a child by police and courts. It also mentions establishment of special courts to deal with sexual offences related to children. The act also considers the intent to commit such offence as a crime. In cases when such offences are reported to Special Juvenile Police Unit or the local police the act provides that adequate relief and rehabilitation arrangements have to be made for taking care of victims.
The act calls for speedy disposal of cases that are reported and it has laid guidelines for constituting the National Commission and State Commissions for protection of Child Rights that are to work under the supervision of Commissions of Protection of Child Rights Act of 2005. Besides these provisions the POCSO act also provides that it is the duty of central and state governments to adopt adequate measures for creating awareness among the people regarding the act and its provisions by means of television, radio and print media.
Success of POCSO
POCSO acts as a statute book for dealing with cases related to sexual abuses on children. Prior to 2012, the offences against any child were dealt under the provisions of IPC and hence these offences were not given urgent attention and were not treated as special cases which were needed for controlling the menace. POCSO act provides for increasing awareness regarding the issues and the provisions of the act which has served as a major advantage as majority of the victims or their guardians used to be unaware of the rights. The act also provides that the statements of victims being recorded and the procedure adopted thereafter are to be child friendly and it also states that victims are entitled to relief and rehabilitation. These provisions have acted as a motivation for number of victims or their guardians who used to fear reporting such offences due to the trauma that the victim has to go through during the procedure. Counselling the victims to deal with post traumatic stress is essential for children. The POCSO act addresses this need also as it stipulates that victims should be provided counselling.
Another issue that has grappled the society in the era of internet is child pornography and its spread. The POCSO act takes into account child pornography as a crime and as it has provisions for punishment for such crimes it has been able to control the rampant spread of child pornography in the society. The POCSO act also provides for medical expenses of victim along with other expenses. It has arrangements for arranging medical professionals who help in taking proper care of the victims. This in turn addresses another issue of expenses for poor families.
Failure of POCSO, what was the need for amendment in the act and what has been amended?
Even though POCSO came into force on 14 November 2012 but it failed to serve as an adequate deterrent to curb the spread of offences against children. POCSO act provides for wide spread awareness of the provisions but in number of instances it has been found that a significant section of the society still remain unaware of the rights and the remedies against sexual abuse of children. For example in the infamous Apna Ghar Rohtak shelter home case related to such offences that was reported in 2012, the provisions of POCSO were not invoked against the accused. In many other cases it has been seen that either the provisions of POCSO act are not taken into account while dealing with related cases or the officials or the victims are unaware of the privileges available to them. It has also been found that proper monitoring and audit with respect to cases and their resolution are not undertaken by the government leading to lapses on the part of officials. Further, different other worrisome issues have been reported like it has been found that conviction rate under POCSO is much less at around 20% and over it about 90% of cases under POCSO are pending in courts, it has also been noticed that about 70% of children remain silent and these cases go unreported and in about half of the cases under POCSO the molesters are found to be known acquaintances of the victim which leads to suppression of such offences and they go unreported.
POCSO act was brought into force to serve as a deterrent for sexual offences against children however it has failed to serve as an efficient one. In a report of National Crime Records Bureau from 2016 a massive surge in cases under the act were reported in 2014 compared to reports in 2013 and since then cases have been on the rise. In another report of National Law School of India University published in 2018, it was reported that 67% of victims in sexual abuse cases gave up on their trial or changed their statement. In many cases it has been seen that special courts have not been set up as per the provisions of the act to deal with such offences and due to this the victims are subjected to a great deal of trauma while reporting the case time and again. The delays in trials of reported cases have led to a pile up of such cases. Another major issue that needed amendment was that the punishments for same offences against boys were lighter in nature compared to punishments in cases of girls. The spark that ignited the process of amendment of the act and making it more stringent was the brutal rape case of Kathua in Jammu and Kashmir that occurred in January 2018. The brutality of the case expedited the process of making the provisions of the act more stringent and the government started working in that direction whose result was finally seen as the amendments to the act that was passed in 2019 and it was notified as the Protection of Children from Sexual Offences Rules, 2020 that came into force from March 9, 2020.
Amendments made in the POCSO Act of 2012
The amendments made have increased the punishments under POCSO act and they have also included the capital punishment for certain cases. The new rules have increased the minimum punishment for use of child for pornographic purpose to 5 years, minimum punishment of 10 years (and in case of child less than 16 years for 20 years) and maximum punishment of life imprisonment for penetrative sexual assault and minimum punishment of 20 years and maximum of life imprisonment or capital punishment for aggravated sexual assault. With the intent of making the law more stringent, the new rules have included the provision of mandatory police verification of staff in schools, care homes etc, it has also included the steps for reporting child pornographic materials, it has included proper education as per age for increasing awareness etc.
Besides these it has also been stated that any person who comes across any form of child pornographic material has to report such contents and the related details of device in which such content was displayed to the special juvenile police unit or police. Under the amended rules the states have to formulate Zero tolerance policies to deal with such cases and they must ensure that the policies are followed by institutions, organisations etc. The procedure to opt for regular orientation programmes, sensitisation workshops etc for people who deal with children has been mentioned in the amendment. Different courses and programmes have to be undertaken by both the central and state governments to increase the efficiency of police personnel and forensic experts. Lastly, the anomalies that existed in the punishments for sexual abuse of boy child and girl child has been removed and equal punishments have been provided for offences against both boy and girl child.
Sexual abuse of children is a bane for any society. In India with about 40% of population under the age of 18 years, adequate rules and regulations are essential to curb this menace. In this backdrop in 2012, the POCSO act was formulated. The POCSO act was brought into force to serve as a deterrent for persons who involve in offences related to sexual abuse of children. However, considering the increase in cases even with the act in force, the increasing pendency of cases and the failure of the act to serve as an adequate deterrent, amendments were made in the act. The amendment increased the punishments for sexual abuse of children, included stringent measures to deal with child pornography and also included capital punishment in certain cases. The amendment has been a step towards increasing the efficiency of the POCSO act and curbing the menace of child sexual abuse. Proper implementation of the act, increased awareness among people in the society and proper education to empower children to deal with such situations will help to eradicate the issue of child sexual abuse from the society.