A study on POCSO Act, 2012
Updated: Jan 6, 2021
Author: Ugesh Rajan
Introduction
Offenses against children have always been a reason for great distress. In India, the protection of child rights is regulated by the Protection Of Children from Sexual Offences Act, 2012. It is gender-neutral legislation that defines a toddler as a person below 18 years of age. The POCSO Act seeks to protect children from acts involving sexual assault, including penetrative sexual assault, sexual harassment, and use of children for pornographic purposes, and trafficking of children for sexual purposes.
The following actions are classified to be Child Sexual Harassment
• Fondling a child's genitalia
• Making a child fondle an adult’s private parts
• Rape, intercourse, incest, sexual exploitation
• Coercion or incentive of a child in an unlawful activity
• The use of a child in whoredom or other unlawful sexual practices
• The use of children in pornographic performances and materials
Characteristics of the Act and its amendment
• This Act is based on gender-neutral and regards the best scrutiny and prosperity of the child as a matter of paramount importance at every stage to ensure the healthy physical, emotional, intellectual, and social headway of the child.
• This Act defines different forms of sexual activity, including penetrative and non-penetrative assault, sexual harassment, and pornography, and deems a sexual assault to be aggravated under certain circumstances, like when the abused child is unsound or when the abuse is committed by an individual in the position of trust or authority for the child, like a family member, police officer, teacher, or doctor.
• People who traffic children for sexual cause should be punished, under the provisions relating to connivance in the POCSO Act. It also prescribes intense punishment graded as per the attraction of the offense, with a maximum term of rigorous imprisonment and fine.
• The Act tells child pornography as any visual delineation of sexually explicit behaviour involving a child, which includes photographs, digital, video, or computer images indistinguishable from an actual child, and also pictures created, modified, or adapted, appear to draw a child.
Punishments for Offences in the Act (2019)
• Section 4: Penetrative sexual assault on a child below sixteen years of age shall be punished, with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life.
• Aggravated Penetrative Sexual Assault (Section 6): Rigorous imprisonment for twenty years, which may extend to life
• Section-14: Uses of Child for Pornographic Purposes - Not less than five years and fine, and in the event of subsequent conviction, seven years and fine (1).
• Use of a child for pornographic purport resulting in penetrative sexual assault - 10 years (in case of a child below 16 years, not less than 20 years).
• Use of a child for pornographic purposes resulting in aggravated penetrative sexual assault - 20 years and fine.
Inclusion of the Death penalty
The Centre has notified On 13th March 2020, a new set of rules to make effective implementation of the amendments made in the POCSO Act. A few of the amendments include the provision of the Death Penalty as a punishment. The Union has justified the punishment by referring to the judgments of the Supreme Court.
The court held in Macchi Singh &Ors. vs. the State of Punjab (1983 AIR 957, 1983 SCR (3) 413)[1] and Devender Pal Singh Bhullar vs. State, NCT of Delhi & Anr[2] that the death penalty should be awarded only in the rarest of the rare cases.
THE REASONS WHY THE PROVISIONS OF DEATH PENALTY COULD BE COUNTER-PRODUCTIVE?
SOCIO-LEGAL ASPECTS
According to the NCRB report, 94.6% of all the cases of sexual harassment and rape of children are committed by people who are known to the victims. Advocate Shailabh Kumar propounds that the provisions of the death penalty raise the probability of the accused murdering the victim to avoid getting caught. Thus, turning the case from “rape and leave” to “rape and murder”.
PROCEDURAL ISSUES
Section 28(2) of Cr.P.C provides to grant the death penalty. It has been observed that in 28.9% of the cases to which the trial court awarded the death sentence, only 4.3% of those cases are qualified for the same when confirmed by the High Court. Also, courts look for stronger evidence when it comes to ordering the death penalty because the judges themselves do not agree to send someone to the gallows in the majority of the cases. This was reiterated in Raju v. State of Haryana[3], where the SC commuted the death penalty to life imprisonment stating that it does not fall under the ‘rarest of the rare’ case.
DETERRENT EFFECT
Certitude plays a remarkable role in deterrence than virulence. The Justice Verma Committee also combat the inclusion of the death penalty as a provision stating “death penalty to act as a deterrent is a myth”. Moreover, no studies have been done documenting the relationship between the death penalty and crime rate & have been able to show that the death penalty has proven to be more effective as a deterrent than any other punishment. This was restated in Triveniben v. State of Gujarat[4].
CONCLUSION
Although the parliament passed the POCSO Act, 2012, it came into force on 14th November 2012, and this notable law to prevent children from sexual offenses remains unknown to most. This law is beyond the knowledge or information of those who need to apply it. It is now in the hands of the Centre and State Governments, to improvise and implement this law by creating effective machinery to check abominable crimes of gross sexual assault against children by notifying all the concerned about it.
References:
Protection of children from sexual offenses Act, 2012,
Protection of children from sexual offenses (Amendment) Act, 2019 [1] https://indiankanoon.org/doc/545301/ [2] Devender Pal Singh Bhullar vs. State, NCT of Delhi & Anr (WRIT PETITION (CRIMINAL) No. 146 OF 2011)
[ https://indiankanoon.org/doc/108787168/] [3] Raju v. State of Haryana ( CRIMINAL APPEAL NO. 1175 OF 2014 )
[ https://indiankanoon.org/doc/59040475/ ] [4] Triveniben v. State of Gujarat (Special Criminal Application No. 1286 Of 1988) https://www.legitquest.com/case/triveniben-v-state-of-gujarat-and-ors/15C59F