SPECIAL FEATURES OF POCSO ACT, 2012

Author: Thanushree P S, a student at JSS Law College

The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a comprehensive law in India to address the increasing incidents of sexual abuse and exploitation of children and to overcome the inadequacy of existing laws to deal effectively with such offences.

The following are the Statement of Objects or Reasons for the enactment of the Act.

Article 15 of the Indian Constitution, inter-alia, confers upon the State powers to make special provision for children. Further, Article 39, inter-alia, provides that the State shall in particular direct its policy towards securing that the tender age of children is not abused and their childhood and youth are protected against the exploitation and they are given facilities to develop in a healthy manner and in condition of freedom and dignity.
The United Nations Conventions on Rights of Children which was ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate National, By-lateral and Multi-lateral measures in order to prevent-

The inducement of coercion of a child to engage in any unlawful sexual activity;
The exploitative use of children in prostitution and other unlawful sexual practices; and
The exploitative use of children in pornographic performances and materials.

The data collected by the National Crime Records Bureau shows that there has been increase in the cases of sexual offences against children. This is corroborated by the study on child abuse: India 2007 conducted by the Ministry of Women and Child Department. Moreover, sexual offences against children were not adequately addressed by the extent laws. A large number of such offences were neither specifically provided for nor they adequately penalised. The interests of the child, both as victim as well as witness, need to be protected. It is felt that offences against children need to be defined as an effective deterrence.

Hence, the Protection of Children from Sexual Offences Act, 2012 was enacted as a self-contained comprehensive legislation to provide for protection of children from offences and pornography with due regard for safeguarding the interest and well-being of children at every stage of the Judicial process, incorporating child friendly procedures. This Act protects the children under the age of 18 years from sexual assault and harassment, and also protects them from being victims of pornography. The Act has also been amended in 2019 to include the provisions for increased penalties for certain offences which guarantees that the children are brought up in a safe, secure, and dignified environment.

The Salient features of the Act are:

Child Centric: POCSO regards Child Protection as a collective responsibility. The Act puts the needs and well-being of the child at the forefront. It ensures that the child is treated with compassion and sensitivity during the investigation and judicial proceedings. A child’s statement shall also be recorded at his or her residence or at a place of his/her choice to protect the child.

Nipun Saxena & Anr vs. Union of India & Ors (2019)

In this case, the Supreme Court of India emphasized the confidentiality aspect of the POCSO Act. It reiterated the importance of protecting the identity of the child victim and prohibited any form of media from disclosing the identity of a child who had been a victim of sexual offences, whether directly or indirectly.

Special Courts: The Act mandates the establishment of Special Courts to expediate the trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of judicial process. Chapter VII of the Act in Section 28 makes provision for special courts. It provides that for the purpose of speedy trial, the State Government by consulting the Chief Justice of the High Court, designate in each district, a Court of Sessions to act as Special Court to try offences under this Act.

Eera through Dr. Manjula Krippendorf vs. State of Delhi & Anr. (2017)

This Supreme Court case highlighted the importance of setting up special courts and providing child-friendly procedures for the trial of offences under the POCSO Act.

Stringent Punishments: The punishments under the POCSO Act range from simple to rigorous imprisonment of varying terms depending on the nature and gravity of the offence committed. These punishments aim at deterring the society from committing such heinous crime against children.

Aggravated Offences: The Act defines and distinguishes aggravated offences based on the severity and specifies harsher punishment for them. As per Section 5 of the POCSO Act, a sexual offence becomes Aggravated when such an act is committed by a person who is bound to and required to protect the child as per the morally and legally and under whom such a child will be presumed to be safe custody, such as Father, brother or any Guardian. Or a person who is in high position in the society, or if a person is below 12 years of age or is mentally or physically disabled. If he gets the child impregnate or assaults her by using deadly weapons and attempts to murder the child. In all such penetrative sexual assaults are considered as Aggravated penetrative Sexual Offences and the person who commits such offence will be punished with rigorous imprisonment for atleast 20 years which can extend upto Imprisonment for the remainder of natural life or with death.

In Pappu v. State of Uttar Pradesh. (2022), the accused raped and murdered a 7 year old girl and concealed her dead body. The postmortem report opined that the death had occurred due to haemorrhage and shock, as a result of ante-mortem injuries. The accused was charged and tried for offences under Sections 376, 302, 201 and Sections 5/6 of the POCSO Act and the case was held to be the rarest of the rare cases and the accused was sentenced to death.

Reporting of Offences: Section 19 of the Act makes provision for reporting of Offences. Any person who has apprehension that an offence under this act is likely to be committed or has knowledge that such an offence is committed, it is his obligation to report such acts and provide information to the local police or the Special Juvenile Police Unit. The Section also provides immunity to such person against Civil and Criminal liability if such information is given in good faith.

Child Friendly Procedures: The law provides for child-friendly mechanisms for reporting, recording of evidence, investigation, and trial of offences. Many provisions of the Act support the child friendly procedure.

Section 36 of the Act mandates that the child is not exposed or made to see the accused at any time of testifying and recording of evidence. It casts upon the Special Court a duty to ensure that the child is not exposed to the accused.
No child should be detained in the police station in the night for any reasons.
Police officer should not be in uniform while recording the offences.
Assistance of the interpreter or translator or an expert as per the need. (Section 38)

In Alak Alok Srivatsava v. Union of India. (2018), the court held that “the objection of POCSO Act is to protect the child from any aspect so that he/she does not tear a sense of discomfort or tear of is remained of the notified experience and further there has to be child friendly atmosphere”.

In Camera Trail: The trial of cases under POCSO is to be conducted in camera to ensure the privacy of the child is protected. Section 37 of the Act provides for trial to be conducted in cameras. It provides that the Special Court has to try cases in the presence of the parents of the child or any other person in whom the child has trust or confidence. If the Special Court feels that the examination has to be conducted in any other place, they can proceed as per Section 284 of the CPC, 1973.
Gender Neutral: The POCSO Act is a comprehensive legislation which is designed to protect children from crimes like Sexual assault, sexual harassment and Pornography. Section 2 (d) of the Act defines Child as any person below the age of 18 years, thereby not restricting its application only of sexual offences against girl child. The Act recognizes that sexual offences can be committed against any child, regardless of their gender, and thus provides protection to all children under the law. It is a gender neutral act and considers welfare of the child as a matter of importance to ensure the healthy physical, emotional, intellectual and social development of the child. The Delhi High Court in Rakesh v. State of NCT of Delhi & Anr, has held “that POCSO Act is not gender based and is neutral as far as victim children are concerned”.

CONCLUSION

Sexual offences leave a scar on a child’s psyche, which results in cognitive impairment, mental agony, and depression. POCSO Act is a pivotal legal framework that protects the child from being exploited sexually and it covers all major sexual offences related to child. The punishments under the Act are more stringent and the law is more severe than any other legislation. However, the Act sets aside the principle of ‘Innocent till proven guilty’ and a person is seen as culprit from the beginning. In various situations, the Indian Judiciary has illustrated its commitment in interpreting and enforcing the POCSO Act to safeguard the children from sexual abuse and exploitation. It is crucial for the society to be well informed about the nuances of the Act to effectively combat child sexual abuse and to ensure that the justice is served to the victims. Continued legal education and awareness campaigns are essential to further strengthen the implementation of the Act.