Protection of Children from Sexual Offences Act, 2012

Cases before POCSO

Ghanashyam Misra vs The State , 1956

The Orissa High Court, enhanced the sentence of Ghanashyam Misra, a school teacher who raped a
10 year old girl in the school premises to seven years and also ordered the accused to pay a
compensation to the father and the child, recognizing that the offence was committed by offence is
committed by a person in a position of trust or authority for the child.

Gorakh Daji Ghadge v/s The State of Maharashtra, 1980

The father was accused of raping his 13 year old daughter at home. The Bombay High Court
prescribed stringent punishment because the victim was the daughter of the accused.

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , 1983

A middle aged man had confined and raped 2 friends of his daughter aged around 10, who had
come to his house to meet the daughter. The trial court convicted the accused for rape, violating
modesty and wrongful confinement .

State Vs. Freddy Peats and Others

In Colva, Goa Freddy Peats ran an orphanage called ‘Gurukul Orphamily’ . 27 shelter boys were
subjected to various perverse sexual activities between 1980 and 1991. The judgement stated: “
Quantum of sentence shall definitely be proportionate to the gravity of the crime.” In 2005, at the
age of 81, Freddy Peats passed away while still in custody.

Delhi Domestic Working Women’s Forum vs UOI and Others on 14 December, 1989

Six young domestic workers travelling on a train from Ranchi to Delhi were brutally harassed,
assaulted and raped by army personnel. This judgement gave several guidelines to be followed when
dealing with cases of sexual offences to lessen the hardships faced by the victims throughout the
judicial process.

Anchorage Case (Allan John Waters vs State Of Maharashtra, 2008 & Childline India Foundation &
Anr vs Alan John Waters & Ors , 2011)

British nationals and former officers of the navy, Allan Waters and Duncan Grant had started an
orphanage in Colaba, Mumbai which was center of child sexual abuse and sex tourism for many
foreign nationals.

Scenario before POCSO Act, 2012

• Crimes related to child sex abuse before the enactment of POCSO Act were dealt under Indian
Penal code under following sections

A) Sec 354 - Outraging the modesty of women

B) Sec 375- Rape

C) Sec 377 - Unnatural Offences

• The I.P.C. was not enough to protect the children and criminalize non- conventional sexual abuses
like child trafficking, pornography , sale of children.

LOOPHOLES IN IPC DUE TO WHICH EFFECTIVE PROTECTION COULD NOT BE PROVIDED TO CHILD

A) Sec 354 of IPC lacks a statutory definition of “modesty” and does not protect the “modesty” of a
male child. Outraging the modesty of women is a compoundable offence and carries a weak penalty.

B) Sec 375 of IPC doesn’t protect male victims or anyone from sexual acts of penetration other than
“traditional” peno-vaginal intercourse.

C) The term “unnatural offences” is not defined in sec 377 of IPC. It is not designed to criminalize
sexual abuse of children but only applies to victims penetrated by their attacker’s sex act.

Reasons for Enactment –

1. To protect the children from offences of sexual assault, sexual harassment and pornography .

2. To establish special courts for trial of offences connected with child sexual abuse crimes.

3. To comply with Article 15 of Constitution of India which mandates the states to protect the
children of this nation .

4.The State parties to the Convention on the Rights of the Child are required to undertake all
appropriate national, bilateral and multilateral measures to prevent—

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices;

(c) the exploitative use of children in pornographic performances and materials;

SALIENT FEATURES –

• The POCSO act is applicable to the whole of India and provides protection to children under the
age of 18 years against sexual offences.

• The Act is gender neutral but at the same time ensures to cover all the aspects that only specified
group of gender could face.

• The definitions include penetrative and non-penetrative assault, as well as sexual harassment and
pornography, and 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 .

• The age of consensual sex has been raised by this act from 16 years as per Indian Penal Code, 1860
to 18 years.

• The burden of proof lies on the accussed.

• Provision of punishment has been provided for false complaints or false information with malicious
intent.

• People who traffic children for sexual purposes are also punishable under this Act.
• As per this act, it is the legal duty of a person to report the offence if he has knowledge that a child
has been sexually abused and in case he fails he may be punished with six months’ imprisonment
and/ or a fine.

• This act also gives the police the role of child protectors and gives them responsibility of making
urgent arrangements such as emergency medical treatment , shelter home.

• It is required by the police to bring the case to the attention of the Child Welfare Committee within
24 hours of receiving the report, so the CWC may make further arrangements for the safety and
security of the child.

• The Act also makes provisions for the medical examination of the child to be carried out in the
presence of the parent or any person whom the child trusts, and in the case of a female child, by a
female doctor.

• It also deals with the matter of child pornography, the circulation and possession of digital content
of such activities as well.

• The Act provides for special courts that conduct child-friendly trial without revealing the identity of
the child and in-camera.

• The Special Court can determine the amount of compensation to be paid to a child who has been
sexually abused for the child’s medical treatment and rehabilitation.

• A case of sexual abuse of child must be disposed of within one year from the date of its reporting.

• The Act prescribes for a child-friendly reporting and investigating system in which the mental
condition of the abused child is given importance .

• Under this act, special juvenile police unit as well as the local police are authorized to take reports
of child sexual abuse . General Principles

• The Act mentions 12 key principles which are to be followed by anyone, including the the Child
Welfare Committee,the Police, the Special Courts, NGOs, State Governments, or any other
professional present during the trial and assisting the child during the trial.

• These include:

1. Right to life and survival

2. Right to be protected from discrimination

3. Right to be heard and to express views and concerns

4. Best interests of the child

5.Right to special preventive measures

6. Right to be informed

7. Right to be treated with dignity and compassion

8. Right to effective assistance

9. Right to safety

10. Right to be protected from hardship during the justice process

11. Right to Privacy

12. Right to compensation

REASON FOR AMENDMENTS-

• According to National Crime Records Bureau from 2016 ,there was an increase in the number of
cases registered under this Act “from 44.7 per cent in 2013 over 2012, and 178.6 per cent in 2014
over 2013, and no decline in the number of cases thereafter”.

• A need was felt to take strong measures to stop “rising trend of child sex abuse” and to make rules
to prescribe a manner in which pornographic material involving a child can be reported, deleted, or
destroyed .

POCSO (Amendment) Act, 2019:

• The Act has enhanced punishment under various sections. For exa. Punishment for aggravated
penetrative sexual assault to be increased to include death penalty. b. The minimum punishment for
penetrative sexual assault, which has been increased from seven years to 10 years — and, if the child
is below 16 years of age, the minimum punishment has been increased to 20 years. • The earlier Act
had punishment for storing child pornography for commercial purposes while the amendment now
even includes punishment for possessing pornographic material in any form involving a child, even if
the accused persons have failed to delete or destroy or report the same with an intention to share it.
• The Act has also removed the words “communal or sectarian violence”, replaced with “violence
during any natural calamity or in similar situations”. OVERVIEW- • It contains 9 chapters and 46
sections. • Act no. - 32 • Enactment date- June 19, 2012 • Enforcement date- November 14, 2012 •
Ministry- Ministry of Women and Child Development CHAPTER I Preliminary 1. Short title, extent and
commencement. - (1) This Act may be called the Protection of Children from Sexual Offences Act,
2012. (2) It extends to the whole of India, [***]. (3) It shall come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint. 2. Definitions. - (1) In this
Act, unless the context otherwise requires, (a) "aggravated penetrative sexual assault" has the same
meaning as assigned to it in section 5; (b) "aggravated sexual assault" has the same meaning as
assigned to it in section 9; (c) "armed forces or security forces" means armed forces of the Union or
security forces or police forces, as specified in the Schedule; (d) "child" means any person below the
age of eighteen years; (e) "domestic relationship" shall have the same meaning as assigned to it in
clause (f) of section 2 of the Protection of Women from Domestic Violence Act, 2005; (f) "penetrative
sexual assault" has the same meaning as assigned to it in section 3; (g) "prescribed" means
prescribed by rules made under this Act; (h) "religious institution" shall have the same meaning as
assigned to it in the Religious Institutions (Prevention of Misuse) Act, 1988; (i) "sexual assault" has
the same meaning as assigned to it in section 7; (j) "sexual harassment" has the same meaning as
assigned to it in section 11; (k) "shared household" means a household where the person charged
with the offence lives or has lived at any time in a domestic relationship with the child; (l) "Special
Court" means a court designated as such under section 28; (m) "Special Public Prosecutor" means a
Public Prosecutor appointed under section 32. (2) The words and expressions used herein and not
defined but defined in the Indian Penal Code, the Code of Criminal Procedure, 1973, [the Juvenile
Justice (Care and Protection of Children) Act, 2015 (2 of 2016)] and the Information Technology Act,
2000 shall have the meanings respectively assigned to them in the said Codes or the Acts. Sexual
Offences Against Children A. - Penetrative Sexual Assault and Punishment Therefor 3. Penetrative
sexual assault. - A person is said to commit "penetrative sexual assault" if (a) he penetrates his penis,
to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him
or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any
other person; or (c) he manipulates any part of the body of the child so as to cause penetration into
the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any
other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the
child to do so to such person or any other person. 4. Punishment for penetrative sexual assault. -
[(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either
description 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. [(2) 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 natural life of that person, and shall also be liable to fine. (3) The
fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.]