Interpretation of the POCSO Act

In News

• Recently, the Supreme Court quashed a Bombay High Court decision stating that sexual intent of the offender forms assault, not skin-to-skin contact.

About Bombay High Court decision

• The accused was sentenced to the minimum three years’ imprisonment under Section 8 of the POCSO Act. 
• That was set aside by the HC and his sentence was reduced to one year under Section 354 (assault of a woman to outrage her modesty) of the Indian Penal Code.

Supreme Court’s Stand

• The act of touching a sexual part of the body with sexual intent will not be trivialised and not excluded under Section 7 of the POCSO Act.
• Limiting the ambit of “touch” to a narrow and pedantic” definition would lead to an “absurd interpretation.
• When the legislature had clarified its intent, the court should not introduce ambiguity.

Protection of Children from Sexual offences (POCSO) Act, 2012

• It is a special law to protect children from sexual abuse and exploitation.
• Section 7 mandates that:
  •  “whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.
  • Most important ingredient in Section 7 is the sexual intent of the offender and not skin-to-skin contact.

• Purpose of the law:
  • To provide protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.
• Definition of a child:
  • The Act defines a child as any person below 18 years of age and defines different forms of sexual abuse including penetrative and non-penetrative assault as well as sexual harassment and pornography.
• Sexual assault:
  • 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 Act.
• Punishment: 
  • POCSO prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. 
  • Section 44 (1) of POCSO Act, 2012 provides that the National Commission for Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCR) shall monitor the implementation of the provisions of the Act.
• Amendments made in 2019 to the POCSO Act, 2012
  • The POCSO Act was amended in order to make it more effective in dealing with cases of child sex abuse in the country. 
  • The Act was notified on 6 August, 2019, and went into effect from 16 August, 2019.
  • It addressed the need for stringent measures to deter the rising trend of child sex abuse in the country on one hand and the menace of relatively new kinds of crimes on the other hand.
  • The following amendments were brought under POCSO Act, 2012, through POCSO (Amendment) Act, 2019:
    • Section 2 (Definitions) amended to incorporate definition of child pornography;
    • Section 4 (Punishment for penetrative sexual assault) amended to increase the quantum of punishment from a minimum of seven years to minimum of 10 years, and a minimum of 20 years in case of a child below 16 years

Significance

• It safeguards the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts. 
• The responsibility of maintaining law and order, protecting the life and property of the citizens including children, rests primarily with the respective state governments and UT administration. 
• While the JJ Act, 2015 ensures the safety, security, dignity and well-being of children, the POCSO Act, 2012 is a comprehensive law that provides protection to children from the offences of sexual assault, sexual harassment and pornography.

Challenges

• Burning Issue:
  • According to a study Status of POCSO cases in India in March 2021 conducted by Kailash Satyarthi Children’s Foundation, “Child sexual abuse is one of the most pressing concerns of the day. 
• Rising cases: 
  • The rising number of cases of children who are reported to have suffered some form of sexual abuse is indicative of the failure of the State and society to provide children with an environment conducive to growth, in accordance with the United Nations Convention on the Rights of the Child. 
• Low conviction rates:
  • Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana and Delhi constitute 51 percent of the POCSO cases in the country but the rate of conviction in these states is between 30 percent and 64 percent. 
• More courts needed:
  • Of the 1,023 fast track courts to be set up, 612 are already functional but there is need to establish all the sanctioned courts quickly as 89 percent of child sexual abuse cases still await trial.
• Implementation of the Act:
  • Though, the Act mentions Special Children courts to be established to hear the cases. Many states did not establish such courts. This is highlighted by  Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors case.

 Way Ahead

• It is an opportunity to take cognizance of the problem and strive towards getting justice for victims, and aim to prevent future instances of child sexual abuse. 
• The rising public consciousness and media attention, along with the proactive measures taken by the judiciary in the last few years is proof that the right of children to live with dignity is finally getting the attention it requires.

Source: TH