The sexual offences were covered under Indian Penal Code (IPC). But the IPC did neither provide for all types of sexual offences against children, nor did it distinguish between adult and child victims. So a special law was enacted by Lok Sabha on 22nd May, 2012 called ‘The Protection of Children from Sexual Offences Act, 2012’ – in short POCSO Act.
The objective of the law is to prevent abuse of children and to bring in a healthy environment endowed with freedom and dignity for their development. Precisely, the law seeks to strengthen the protection of children from sexual offences of sexual assault, sexual harassment and pornography, against children and to establish special courts for trial of such offences. A child, as the act defines, is as a “person below the age of 18 years”. This is a self-contained comprehensive legislation.
Defines Key Concepts
The law defines sexual harassment, sexual assault, aggravated sexual assault, penetrative sexual assault etc. at length. Sexual harassment means making a gesture, exhibiting a part of his/her body, showing a pornographic material or watching his/her body through an electronic media etc. Sexual assault is the touch of a child’s body with sexual intent. Aggravated sexual assault means a sexual assault by an authority, such as a member of security forces, police officer, public servant, etc. in a position of trust or authority of child, who keeps a child under legal custody. Reporting a denigrating report on the child by the media is an offence. Abetting a child abuse is also punishable.
The law provides for stringent punishments ranging from simple imprisonment to rigorous imprisonment of varying periods, possibly with a fine to be fixed by the Court.
The punishments under the act are:
- Sexual Harassment: Three years and fine
- Sexual Assault: Not less than three years, but may extend up to five years, and fine
- Aggravated Sexual Assault: Not less than five years but may extend to seven years, and fine
- Penetrative Sexual Assault: Not less than seven years but may extend to imprisonment for life, and fine
- Aggravated Penetrative Sexual Assault: Not less than ten years but may extend to imprisonment for life, and fine
- Use of Child for Pornographic Purposes: Five years and fine and in the event of subsequent conviction, seven years and fine
Special Courts & Child Friendly Procedures
· The Act provides for the establishment of Special Courts of Sessions or for conversion of any other child court as special court at the district. The law prescribes child friendly procedures for reporting, recording of evidence, investigation and trial, of offences.
· The recording of the child’s statement should be at the residence of the child or at a place of its choice, preferably by a woman police officer not below the rank of Sub-Inspector.
· No child is to be detained in the police station during the night for any reason.
· The Police officer should not be in uniform while recording the child’s statement.
· The child’s statement is to be recorded as spoken by the child. Assistance of an interpreter or translator or an expert as needed is to be obtained.
· Assistance of special educator or any person familiar with the manner of communication of the child is to be obtained in case the child is disabled.
· Medical examination of the child is to be done in the presence of either the parent of the child or any other person in whom the child has trust or confidence.
· In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
· No child is to be called repeatedly to testify anything.
· No aggressive questioning or character assassination of the child is to be opted.
· In-camera trial of cases is to be done.
Unsuccessful Attempt and abetment
Any attempt to commit an offence under the Act, even when unsuccessful, has been made liable for punishment for up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused.
To prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. The punishment for misuse has been kept relatively light as six months to encourage reporting. On false complaint against a child, the punishment is for one year.
Media not to Disclose Victim’s Identity
The media is barred from disclosing the identity of the child without the permission of the Special Court. A breach of this provision will result in a punishment of six months to one year.
Evidence of the child is to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within one year. As soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, immediate arrangements are to be made simultaneously to admit the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
Central Rules Notified
The central government formulated and enforced the rules on 14th November 2012. The rules provide for qualifications and experience of interpreters, translators, special educators and experts. They, as well, lay down arrangements for the care, protection and emergency medical treatment of the child, compensation payable to the victim.
The rules rely on the structures, such as Child Welfare Committees and District Child Protection Units established under the Juvenile Justice Act, 2000, to make arrangements for the care and protection of the child. When a child is taken to emergency medical care facility, no magisterial requisition or other documentation is to be demanded by them prior to giving medical care.
The rules lay down criteria for award of compensation which may be awarded at the interim stage as well as upon completion of trial by the Special Court.
Sources of Reference