Co-Author - Aditi Das
In arrange to viably address the intolerable violations of sexual mishandle and sexual abuse of children through less vague and more rigid legitimate arrangements, the Ministry of Women and Child Development championed the presentation of the Protection of Children from Sexual Offenses (POCSO) Act, 2012. The Act has been ordered to secure children from offences of sexual ambush, sexual badgering and erotica and give for the foundation of Special Courts for the trial of such offences and related things and incidents. The Act was corrected in 2019, to form arrangements for an upgrade of disciplines for different offences to discourage the culprits and guarantee security, security and stately childhood for a child.
SALIENT FEATURES OF THE ACT AND ITS AMENDMENT
The Act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child.
The Act defines a child as any person below eighteen years of age. It regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
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.
It defines "child pornography" as any visual depiction of sexually explicit conduct involving a child which include a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child.
PUNISHMENTS FOR OFFENCES COVERED IN THE ACT
Penetrative Sexual Assault (Section 3) on a child - Not less than ten years which may extend to imprisonment for life, and fine (Section 4). Whoever commits 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, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine.
Aggravated Penetrative Sexual Assault (Section 5) — Not less than twenty years which may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7), i.e. sexual contact without penetration — Not less than three years which may extend to five years, and fine (Section 8)
Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five years which may extend to seven years, and fine (Section 10)
Sexual Harassment of the Child (Section 11) — Three years and fine (Section 12)
Use of Child for Pornographic Purposes (Section 14) — Not less than five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)
Use of child for pornographic purposes resulting in penetrative sexual assault: Not less than 10 years (in case of the child below 16 years, not less than 20 years)
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault: Not less than 20 years and fine
Use of child for pornographic purposes resulting in sexual assault: Not less than three years which may extend up to five years
Use of child for pornographic purposes resulting in aggravated sexual assault: Not less than five years which may extend to seven years
Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, to share or transmit child pornography - Fine of not less than Rs 5,000; in the event of a second or subsequent offence, fine not less than Rs 10,000.
Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description: Up to three years of imprisonment, or with fine, or both.
Any person, who stores or possesses pornographic material in any form involving a child for the commercial purpose shall be punished on the first conviction: Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and up to seven years and also fine.
INTRODUCTION OF PASSING PENALTY
The charge looks for the passing punishment for disturbing sexual ambush on children to form a deterrent effect. It alludes to the judgments of the Supreme Court in Machhi Singh (1983) and Devender Buddy Singh (2002) in which the court had held that the passing punishment could be granted as it were in rarest of uncommon cases. Concerns over passing penalty Often, the culprits of manhandle are family individuals and having such punishment may dishearten the enrollment of the wrongdoing itself.
Too, it may debilitate the life of the minor as the maximum discipline for kill is additionally the passing sentence. The Justice J.S. Verma Committee, which was constituted in 2013 within the repercussions of the Nirbhaya case, after due considerations found itself against the inconvenience of passing punishment in assault cases. The 262nd Report of the Law Commission of India, 2015, too gives for annulment of the passing punishment but in fear cases. It to a great extent occupies consideration from the central issues of infrastructural unresponsiveness, procedural slips and trial delays. It helpfully sidesteps the truth that ‘it is the certainty of discipline instead of its seriousness which has discouragement in a genuine sense’. Research at the worldwide level has appeared that despite rigid disciplines, there's no drop within the rate of commission of violations, hence appearing the restriction of the obstacle theory.
According to the National Crime Records Bureau (NCRB) information of 2016, the conviction rate in POCSO cases is 29.6% whereas pendency is as tall as 89%. The endorsed time period of two months for trial in such cases is barely complied with. As per the NCRB information of 2016, less than three per cent of child assault cases that came up sometime recently the courts finished in feelings.
A WAY FORWARD
Issues related to the usage of POCSO Act such as the need of satisfactory extraordinary courts need of sensitization for agents and prosecutors in managing with child casualties, destitute rate of feelings etc. have to be settled urgently. The Supreme Court heading to set up extraordinary courts inside 60 days of the arrange in each locale having more than 100 pending cases beneath the act must be complied with urgently. The arrangement of passing punishment ought to be broadly examined and talked about and ought to be utilized as it were for the rarest of the uncommon cases. Awareness and sensitization of people are similarly vital to anticipate the wrongdoing itself. There ought to be an upgrade of the criminal equity framework within the nation instead of underscoring on the passing punishment.