Introduction

The protection of children is one of the guarantees the State must abide by if  Article 21 is considered carefully. India is also a signatory of the UN Convention on the Rights of the Child. Hence, special laws need to be put into effect to safeguard children’s interests and their innocent childhood in the best possible way.

The constitution, before the POCSO Act came into effect, was grossly inadequate to deal with sexual offenses against children. The only act that mentioned a specific part about child abuse was the Goa Children’s act of 2003. All sexual offenses and misdoings against children were processed under these sections of the Indian Penal Code (IPC):

• I.P.C. (1860) 377- Unnatural offenses
• I.P.C. (1860) 375- Rape
• I.P.C. (1860) 354- Outraging the modesty of a woman

There was a lack of laws that especially catered to the best interest of the children, as this approach had its fair share of drawbacks. It had several loopholes that prevented the proper and effective care to protect the child, like;

IPC 375 does not protect male victims from sexual offenses involving penetration.

The word ‘modesty’ is vaguely ambiguous in terms of definition in the constitution. Hence, its violation carries little weight regarding a penalty as it does not qualify as a compoundable offense. It also doesn’t cover the modesty of a male child.

IPC 377, which was annulled in the landmark judgement in 2018, did not define ‘unnatural offenses’. It did not necessarily criminalize the act on children but was rather limited to the sexual act of the attacker.

These discrepancies and insufficient measures were the reason enough for wanting a reform that was driven by its objective to protect children against such crimes.

In September 2010, the Ministry of Women and Child Development prepared a draft Protection of Children from Sexual Offences Bill, 2010 which after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012. The Act was passed in the Indian Parliament in May 2012. The Act under its ambit defines child as a person below the age-group of 18 and is gender neutral and have a clear definition for all types of sexual abuses like sexual harassment, penetrative or non-penetrative sexual abuse, and pornography.

Is POCSO only for girls?

“It’s a misconception that only girls are sexually abused and that POCSO only covers girls. POCSO is actually a gender-neutral law which addresses the gender-neutrality of sexual offences

• In Vishaka v. State of Rajasthan (1997), the Supreme Court held that the offence relating to modesty of woman cannot be treated as trivial.
• In Pappu v. State of Chhattisgarh (2015), the High Court of Chhattisgarh, though it acquitted the accused under Section 354 of the IPC as the offence was found lacking in use of ‘criminal force or assault’, convicted him for sexual harassment under Section 354A which requires ‘physical contact’ and advances as a necessary element.
  • This case also pertained to squeezing the limbs and breasts of a 13-year-old girl but the High Court did not venture into the area of skin-to-skin contact.

What is difference between Posco and Pocso?

POSCO Act:The Protection of Children from Sexual Offences (POCSO) Act, 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children through legal provisions.

Salient features of the Act

• The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
• The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
• It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and 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 vis-à-vis the child, like a family member, police officer, teacher, or doctor.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• It defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child;’

POCSO Act Punishment

The following table contains the sections that come under the POCSO Act 2012 by which the accused is punished by the law:

IPC and POCSO: Differences

• The definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts or doing any other act which involves physical contact without penetration.
• ‘Sexual assault’ in POCSO specifically excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
• Whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
• Higher punishment is provided under POCSO not because more ‘serious allegations’ of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.
• Therefore, once the act of ‘outraging modesty with the use of assault or criminal force’, which is nothing but ‘sexual assault’, is proved, the requisite punishment must be slapped under POCSO if the victim is a child.
• It is overseen by NCPCR (National Commission for Protection of Child Rights), 2005.

The POCSO (Amendment) Act, 2019

• The act aims at making offences against children gender-neutral.
• The definition of ‘Sexual Assault’ has been extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for the purpose of penetrative sexual assault.
• The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.
• The amendments also penalize the transmitting of pornographic material to children and propose to synchronise it with the Information Technology Act.
• The Act seeks to enhance punishment for sexual offences against children, with a provision of death penalty.
• According to the amendment act, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.
• In case of aggravated penetrative sexual assault, the act increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
• To curb child pornography, the Act provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and fine.
• However, in the event of a second or subsequent conviction, the punishment would be up to seven years and fine.
• The government has also sanctioned over one thousand fast track courts for speedy disposal of pending cases under POCSO.