Author: Ishnoor Kaur, a student of Rajiv Gandhi National University of Law, Punjab
To the Point
Children’s developing years are considered the foundation of their future lives. Sexual abuse is the most heinous crime which can happen to a child during these years, and it has an impact on them throughout their lives. The Protection of Children from Sexual Offences (POCSO) Act was passed by the parliament in 2012. This legislation was brought with the intention of not only protecting sexual offences against children but also preventing such offences from occurring. The POCSO Act ensures a well-defined and broad spectrum of crimes against children and provides the corresponding punishments and penalties. The said act is gender-neutral and provides protection to all children below the age of 18 years. The POCSO Act was designed not only to protect children but also to make the entire criminal justice process less intimidating and more sensitive to their needs. It lays out clear guidelines for everything, from how a child’s statement should be taken, to how medical examinations are conducted, and even calls for the creation of special courts that are welcoming to children.
Abstract
This article aims to elaborate on the provisions of the Protection of Children from Sexual Offences Act, 2012. The POCSO Act has 47 sections, further several judicial pronouncements have directed guidelines to provide a smooth and just trial of cases under POCSO. The primary reason for the need for a special act to protect children from sexual abuse was, firstly, the Indian Penal Code, 1860 (now Bhartiya Nayaya Sanhita, 2023) had no specific provision for children. Secondly, the IPC did not provide any safeguard to the males below age of 18 years. Hence the legislation under Article 15(3) the power to make special laws brought the POCSO Act. The article delves into the necessary precautions to protect children from abuse and highlights a few shortcomings of the existing statute.
Use of Legal Jargon
POCSO Act, 2012- Act came into effect in 2012, to protect children from sexual offences
Child- The act defines a child- anyone who is less than 18 years of age.
Assault- The act defines several types of assaults- penetrative sexual assault:
Penetrative sexual assault- Section 3 defines penetrative sexual assault very specifically. It means causing or manipulating the body parts of the child to penetrate his penis or any foreign object into the child’s vagina, mouth, urethra or anus or applying his mouth to any of the said areas. Section 4 gives the punishment for such an act which is imprisonment of not less than 10 years and may extend to life imprisonment.
Aggravated penetrative sexual assault- Penetrative sexual assault committed by a police officer, armed or security forces, public servant, management or staff of a hospital, educational or religious institution. Besides assault causing grievous hurt or bodily injury.
Sexual Assault- A touch with a sexual intent to private parts of a child, without penetration.
Sexual Harassment- Section 11 defines sexual harassment, it covers a range of actions, including uttering words or making sounds with sexual intent, making a child exhibit his body, showing pornographic material, constant surveillance or stalking, threatening to use depictions of the child, and enticing a child for pornographic purposes.
Special Courts- Defined under Section 28 of the act, made specially for the trials of POCSO cases
Pornography- Section 13 provides the meaning of pornography that it is involving of a child in any form of media for sexual gratification
Proof
The latest report released by the National Crime Records Bureau (NCRB), titled “Crime in India 2022”, reveals that 1,49,404 cases of crime against children were registered in 2021 of which 53,874 (36.05 per cent) were under the Protection of Children from Sexual Offences Act (POCSO). The data by NCRB shows that there were 47,221 cases recorded in 2020 which further increased to 53,874 in 2021. It is certain that a good number of cases still exist which are left unreported because of the unawareness of many children. It has been thirteen years since the act was passed and the number of pending cases is not even constant but is increasing. This reflects the inadequacy of a few provisions or poor implementation by the authorities.
Landmark Judgements
Alakh Alok Srivastava v. Union of India and Others (2018)
Alakh Alok Srivastava filed a PIL before the apex Court because his eight-month-old daughter was brutally sexually assaulted and needed medical care. This raised the issue of the requirement for speedy trials and compensation for immediate treatment and medical facilities. The Supreme Court promptly directed that the child receive the best possible medical care. Besides this, the court addressed the insensitivity going on in the POCSO cases by laying down key guidelines to ensure timely, sensitive, and effective handling of POCSO cases.
High Courts should make sure that all cases under the POCSO Act are assigned to Special Courts. It’s important that the judges in these courts receive specialized training in child protection laws and child psychology, so they can approach these sensitive cases with the care and understanding they deserve.
Unless already done, the cases under the POCSO Act must be assigned to the special courts, without delay.
Special courts should be instructed to complete the trial in a time-bound manner that is within a year from taking the cognizance. Unnecessary adjournments should be avoided and the proceedings should be done in compliance with the procedure mentioned in the POCSO Act.
Chief Justices of the High Courts should be directed to set up a committee of three judges to oversee and monitor how POCSO Act cases are progressing. If it isn’t possible to have three judges, the Chief Justice will instead form a committee with the available judges from that court.
A special task force must be set up by the Director-General of Police or equivalent state authority to ensure that proceedings are done in a proper manner and the witnesses are presented on the scheduled dates.
High Courts are directed to take concrete steps to create a child-friendly atmosphere in Special Courts, in line with the POCSO Act’s spirit, to prevent further trauma to child victims and witnesses.
Bijoy v. The State of West Bengal (2017)
In this judgement, Calcutta High Court laid down some directives which are to be followed by the investigating agencies in the procedure of filing of the FIR, to protect the dignity of the child victim and maintain confidentiality. Besides state must give compensation to the victims to recover from the mental trauma hence ensuring sensitivity in handling such cases.
Vishnu Kumar v. State of Chhattisgarh (2017)
In this case, the Chhattisgarh High Court reviewed the conviction of Vishnu Kumar under the POCSO Act. The Court found that the trial process did not fully comply with Section 36 of the POCSO Act, some guidelines were issued by the Court to all the judicial officers of the state to make the proceedings more child-friendly.
The presiding officer can use toys, and sweets and have a friendly conversation. He must make the child witness comfortable.
There can be flexibility in the strict rules of evidence to make the child comfortable.
The statement of the child can be recorded according to his/her comfort. The prime importance should be given to the child’s safety.
Sunderlal v. The State of M.P. and Ors. (2017)
There was a petition filed by the father of a minor rape victim for termination of her pregnancy. The Madhya Pradesh High Court’s directives in this regard are:
In the case of minors the consent of the petitioner is considered sufficient and the minor’s own consent is not essential.
The termination of pregnancy will be in accordance with the Medical Termination of Pregnancy Act, of 1971 and the opinion will be formed by three registered medical practitioners. If this three-member committee gives assent to the termination of the pregnancy then all expenses of the victim will be taken by the state.
The DNA sample is to be kept in a sealed cover, in the case of termination of the pregnancy.
Shortcomings of the Act
Though the POCSO Act, in its entirety, is a very comprehensive and specifically defined act, there are a few shortcomings which need to be addressed in this rapidly developing country.
On average children above 15 years of age are aware of their sexual needs and are likely to get involved in some sexual activity. This raises the concept of consent in the provisions of POCSO. The act does not include the exception of consensual sexual intercourse between a minor whose partner is above 18 years of age.
It can be argued that if this exception is brought under the act, it can be misused to a vast extent. In order to avoid this issue, the age of minors can be changed to 16 years. The former Chief Justice of India D.Y. Chandrachud has also strongly encouraged both Parliament and the Law Commission of India to reconsider the sections of the POCSO Act that make consensual relationships between 16- to 18-year-olds a criminal offence.
Another shortcoming of the act is that it fails to address the virtual abuse children face. The Delhi High Court on 5 May 2025 said “Teaching minors about good touch and bad touch is not enough in today’s virtual world and the children must be educated in the emerging concept of “virtual touch”, and its potential dangers.” This highlights that immediate attention must be given to cybercrimes especially faced by children.
Lastly, there are no penalties or fines prescribed in case of any false accusations made by minors in case of sexual assault. There is a chance that this huge figure of pending cases can be considerably decreased if there are some provisions to avoid false complaints. This would further speed up the process for minors who are truly in distress.
Precautionary steps beyond the statute
Many schools have been teaching students at a very early age about the good and bad touches. Children are taught how to react to any encounter which makes them feel uncomfortable. They are being familiarised with the available facilities for them. These practices need to be implemented at the grassroots level as well. Open conversations about good and bad touch can help build trust between children and parents or caregivers and create an environment where children feel comfortable reporting any inappropriate behaviour.
Conclusion
The POCSO Act aims to protect children from sexual abuse and harassment by providing stringent provisions for the offenders. It also ensures that a child-friendly environment is maintained during the proceedings of the case. Besides the statute landmark cases have also laid down directives and guidelines to ensure justice. Though the act is well-defined and very comprehensive, a few shortcomings of the act have been pointed out, overcoming these drawbacks can reduce the number of cases piled up in the judiciary.
FAQS
What is the age of minors protected under the POCSO Act, 2012?
A child according to the POCSO Act, is anyone below the age of 18 years.
Does the POCSO Act have a retrospective application?
This issue arose in the case of Kanha v. State of Maharashtra (2017), it was held that offenders committing an offence after the act came into force that is November 14th 2012, would be punished under the POCSO Act. Hence it does not have a retrospective applicability.
What is the maximum punishment for offenders under the POCSO Act?
The punishment is according to the severity of the offence committed. It varies from fines and penalties, imprisonment up to 10 years or even life imprisonment, to death penalties.
Who can report the offence under the POCSO Act?
Anyone who knows that an offence has been committed.
Can a child be punished for false reporting under POCSO?
A child cannot be punished for giving false information or making a false complaint under the POCSO Act.
