CRITICAL ANALYSIS

“THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019 NO. 25 OF 2019”

 

INTRODUCTION:

India is about to be the most populated country on earth and approximately shares around 18% of the world’s total population that amounts to roughly 1.3 billion people.  India has very young population and they are a contributing factor towards the country’s total census as eventually they will become an valuable asset that they will work and take the country forward this will only happen if they are cared for and nurtured correctly but, children in this country are subjected to a number of pains, hardships that can happen in any form physically emotionally, psychologically and sexually.

World institutions have tried to get a comprehensive meaning of “child sexual abuse”, the most definition is of UNICEF-” contacts or interactions between a child and an older or more knowledgeable child or adult (stranger, sibling, parent or caretaker) when the child is being used as an object of gratification for the older child’s or adult’s need. Such contacts or interactions are carried out against the child using force, trickery, bribes, and threats”[1]

Protection Of Children From Sexual Offences Act, 2012 was passed to protect the children from the offences  that work related to sexual abuse on harassment the main aim of this act was to provide a child friendly  procedure in the system so that  they would be punished.

Any child who is less than 18 years of age will be under the definition of child according to this act. It received the president’s assent on 19th June 2012 and was notified the next day that is 20 June 2012.

SALIENT FEATURES:

1. According to this act, any person who is below the 18 years of age are children
2. It is a gender neutral act, as it recognises any victim and the perpetrator can be of any gender be it male, female or third gender.
3. It has made all the sexual activity with a minor sexual offence and increased the age from 16 to 18 years for sexual consent.
4. Sexual abuse may or may not involve a bodily contact as these offences can be sexual assault or sexual harassment.
5. It is to make sure that the child identity is anonymous, provisions are made so that the media doesn’t disclose any data regarding the identity of the child.
6. According to this act, the children are authorised able to get a legal representative of their own choice or  free legal aid support
7. According to this act there are special courses of action that has to be followed by the “Investigation Agency” when they are taking the testimony of the child and by the “special courts” during the child’s ousting.
8. If there has been a sexual offence against a child it should be reported to the police commissioner as it is mandatory and there are penal provisions if it is not reported.
9. There are laws in this act for proper designated “special court” and special “Public Prosecutor” to understand and interpret the laws under these offences.

NEED FOR THIS ACT:

1. The main objective of this act is to provide the children with protection from various types of offences be it sexual or non-sexual and it has established various “special courts”, so the justice could be prevailed speedily.
2. Before this Act was enacted, any sexual offence that happened or committed by anyone, would have been covered under the statute of Indian penal code, 1860. But due to the loopholes in the law IPC does not have protection for particularly against, the child abusers as it doesn’t cover the offences that are against child, it does not make a difference between an adult or any person who is less than 18 years of age.
3. Because this act does not discriminate on the basis of gender, offences that are committed sexually against boy are also covered under test act.

FOLLOWING ARE THE SEXUAL OFFENSES THAT ARE RECOGNIZED UNDER THE ACT:

“Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using for child for pornographic purposes are the offences against children that are covered by this act”. This act also covers the punishment for attempting the offence or abetment to the crime. Even if the person is unsuccessful in its attempt to commit, it is recognised by the fact that it is intended to commit it and is punished accordingly. When there is a successful attempt to commit an offence the punishment is cut by half it is prescribed for doing the offence.

 

Type of Felony	Section of the Act[2]	Imprisonment Time That Can Be Extended To
Penetrative Sexual Assault	3&4	7 years to life
Aggravated Penetrative  Sexual Assault	5&6	10 years to life
Sexual Assault	7&8	3 years to 5 years
Aggravated Sexual Assault	9&10	5 years to 7 years
Sexual Harassment	11&12	3 years
Child Pornography	13, 14& 15	15-20 years and can be extended

 

ROLE OF SPECIAL COURTS

1. It is to create an environment  that is child friendly, it can be done by authorising the members of the family or guardian or a friend or close confidante, basically a person whom he or she can trust and have confidence to be in the presence of the court.
2. One of the most important role is to provide intervals to the child so that the psychological mind-set the child is not affected.
3. It should be the duty of the special courts that the child’s testimony is taken and the child is not being called again and again to the court.
4. It is the duty of the court to see that the question answering of any kind in an aggressive form shouldn’t be authorised.
5. It is one of the four most responsibility of the court to see that honourability of the child is maintained and identity of child in any case shouldn’t be out in open under sec 33 of the act.
6. This case is should be in presence of parents of the child or any other person who is in confidence under section 37 of the act.

CRITICAL ANALYSIS:

1. Enactment of this act was done on 14th November 2012 (Children’s Day), all over India except for the state of Jammu and Kashmir.
2. According to this act any person who hasn’t attained the age of 18 is a child.
3. The sexual offences against children under this act are categorised into five types penetrative sexual assault; aggravated penetrative sexual assault; sexual assault; aggravated sexual assault; and sexual harassment.
4. If there is an attempt to abet any offence under this act, it is also punishable under section 16 of this act.
5. Using a minor for purposes that represent an intimate organs of a child, for they are engaged in acts that are sexually stimulated, the offenders would be punished under his act under section 13.
6. To speed up the trial and to the change in atmosphere that is relatively friendly to the child where the trials are held, special courts are set up under the provision of section 28 of this act.
7. According to the section 35 of this act the case should be completed within a period of one year from the date, when the crime was committed.

CONCLUSION

To conclude POCSO has definitely been an effective tool by which there has been a considerable downfall in the rate of crime against children, but still there’s a long way to go to completely eliminate the grotesque crimes against children. There are still many loopholes which the act needs to address and the amendments introduced in 2019 POCSO Bill is a commendable step.

But looking at the ground the reality, all these laws would be futile if there is not proper dissemination of information and people are not aware of their rights. In rural areas the parents are unaware of the POCSO Act and there by meeting specific demands of the situation. Theirs is not dearth of laws but need to sensitize the stalk holder ranging from victims, parents and police officials towards the same. The state is as well obligated to understand the mental health of the child and thereby counselling be made available to these children. Ensuring child rights in India is a daunting task as it’s a country of diverse sects, cultures and beliefs and thereby there’s difficulty in legislation and execution of laws.

 

[1] Savitri Goonesekere, Children, Law and Justice- A South Asian Perspective, UNICEF, First Edi. Sage Publications India Pvt. Ltd. 2010, p. 10-88

[2] The Protection of Children From Sexual Offences (Amendment) Act, 2019 No. 25 Of 2019

Author: Kashish Goel,
Delhi Metropolitan Education, GGSIPU 4th Year