POCSO Act: Landmark Cases and amendment

As much as it is depressing to see the increase in the number of sexual assault cases against children in India, the stronger the need is felt to deliver justice to the victims at the earliest. In our country, the legislation governing sexual offenses with children is the POCSO Act which provides stringent punishment for the offenders. As per the government report, around 23% of girls in India are sexually abused or harassed before 18 years of age. In most cases, the parents do not complain because the abuser is known to them. 

Although the Convention on the Rights of the Child was adopted by the United Nations in 1989, the offenses against children were not redressed by any legislation in India until 2012. So, in 2012 the Protection of Children from Sexual Offences Act was passed to protect children from all forms of sexual abuse. It provided stringent punishments for committing offenses against children ranging from a minimum of 20 years of imprisonment to the death penalty in case of aggravated penetrative sexual assault. This article will discuss the POCSO Act, 2012, its scope, the 2019 amendment, and the landmark cases. Let’s get started.

Scope of the POCSO Act, 2012

In India, the POCSO Act 2012 is not the only legislation that deals with child sexual abuse cases. POCSO stands for the protection of children from sexual offences. The POCSO Act cannot be called a complete criminal code in itself; the provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, 2015, and Information Technology Act, 2000 encapsulate the procedure and specify the offenses. 

Essential features of the POCSO Act, 2012

Some of the salient features of the POCSO Act are herein mentioned:

• Victim’s identity to be kept confidential: Section 23 of the POCSO Act specifies the media procedure and imposes the duty to maintain the victim’s (child) identity unless the Special Court has allowed the disclosure. 

Clause (2) of this section states that “no reports in any media shall disclose the identity of a child including his name, address, photograph, family details, school, neighbourhoodS and any other particulars which may lead to the disclosure of the identity of the child.” 

In Bijoy @ Guddu Das v. The State of West Bengal (2017), the Calcutta High Court reiterated the law under Section 23. It declared that any person, including a police officer, shall be prosecuted if he/ she commits such a breach. 

• Gender-neutral provisions: Unlike IPC, the POCSO Act does not differentiate between victims and perpetrators based on gender. This no doubt overcomes one of the biggest problems of the Indian Penal Code. The definition of a child includes anyone below 18 years of age.

• Mandatory reporting of child abuse: Sexual abuse cases usually happen behind closed doors, and people try to hide these incidents. To implement the POCSO Act, reporting these incidents by third parties has been necessary under Sections 19 to 22 of the POCSO Act. 

What is the POCSO Amendment Act 2019?

To make punishments for sexual offenses against children more stringent, the amendment to the POCSO Act was made in the year 2019 to protect children from sexual assault and sexual harassment. The features of this amendment are:

• The act makes offenses against children gender-neutral.

• The definition of ‘Sexual Assault’ has been extended to incorporate the administration of hormones or chemical substances to children to attain early sexual maturity for penetrative sexual assault.

• The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child, including photographs, video, digital, or computer-generated images indistinguishable from an actual child. 

• The Act is critical as it clearly defines child pornography and makes it punishable.

• The amendments also penalize the transmitting of pornographic material to children and propose synchronizing it with the IT Act. 

• The Act enhances punishment for sexual offenses against children with a provision for the death penalty.

• One most important features is that those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, extending to life imprisonment and a fine.

• In aggravated penetrative sexual assault cases, the act increases the minimum punishment from 10 to 20 years and the maximum punishment to the death penalty.

• To curb child pornography, the Act specifies that those who use a child for pornographic purposes should be punished with imprisonment for up to five years and a fine.

• However, in case of a second or subsequent conviction, the punishment would be up to seven years and a fine.

• The government has also sanctioned more than a thousand fast-track courts for speedy disposal of pending cases under POCSO.

Child Pornography

To reduce the heinous offense of child pornography, the Ministry of Women and Child Development has clearly defined what constitutes the offense and included sexually explicit digital content involving children. The government has defined child pornography under the POCSO Act of 2012 and brought digital or computer-generated content under it. 

• The act defines child pornography as: “any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image (that is) indistinguishable from an actual child.”

• Also, “an image created, adapted, modified” to depict a child would be treated as child pornography. This would also include cartoons, animated pictures, etc.

• The Cabinet had also enhanced the fine for possessing child porn but not deleting or reporting it to 5,000 from the earlier proposal of Rs. 1,000. If a person stores such content for further distribution, except when presenting it in court as evidence, he could face a punishment of up to three years.

• Henceforth, there will be zero tolerance for child pornography. 

• Some of these provisions were also contained in the Protection of Children from Sexual Offences (POCSO) Amendment Act, 2019, but lapsed.

What are the loopholes in the POCSO Act?

Unlike rape, the victim under the POCSO Act can be any child, irrespective of gender. However, the accused can only be a male, and females are immune from being prosecuted as accused under the POCSO Act for some unknown reasons.

Landmark Cases under the POCSO Act

1. Jarnail Singh v. State of Haryana (2013)

The appellant was accused of kidnapping and raping the daughter of Savitri Devi while she was sleeping. The Supreme Court of India, in this case, observed that the procedure which is used to determine the age of a child who conflicts with the law as per the Juvenile Justice (Care and Protection of Children) Rules, 2007, can be followed in cases falling under the POCSO Act, 2012 as well. Applying this rule, the Court convicted the appellant, Jarnail Singh. 

2. State of Karnataka v. Shivanna (2014)

The POCSO Act 2012 does not require recording every statement made under Section 164 of the CrPC. The statement of a victim under Sections 354, 354-A, 354-B, 354-C, 354-D, 376(1), 376(2), 376-A, 376-B, 376-C, 376-D, 376-E, or 509 of the IPC should be recorded by a Judicial Magistrate, according to the Section 164(5-A)(a) of the Criminal Law (Amendment) Act, 2013. The statement should be recorded as soon as the commission is brought to the knowledge of the police. It was also held that the victim must be presented before the Judicial Magistrate (preferably to a Lady Magistrate) within 24 hours of the rape to record the statement under Section 164(5A)(a) CrPC.

3. Attorney General for India v. Satish and another (2021)

In the case of Satish Ragde v. the State of Maharashtra (2021), the Bombay High Court's Nagpur Bench ruled that grabbing a child’s breasts without making “skin-to-skin contact” constituted molestation under the POCSO Act, 2021. This judgment by Justice Pushpa Ganediwala received immense hatred. The Attorney General of India, the National Commission for Women, and the State of Maharashtra filed appeals against this High Court's decision, which were heard by a bench consisting of Justices Uday Umesh Lalit, S Ravindra Bhat, and Bela M Trivedi in the present case of Attorney General for India versus Satish and another (2021). 

Setting aside the Bombay High Court's judgment, the SC observed that the matter at hand would be appropriate for using the “mischief rule” of statutory interpretation. It emphasized that courts must constantly interpret the law to curb harm and promote the remedy. 

4. Nipun Saxena v. Union of India (2019)

When a violation is committed under Section 23 of the POCSO Act, the publisher or owner of the media, studio, or photography facility is held jointly and severally accountable for his employee’s act or omission, as observed by the Supreme Court in this case. The Apex Court released a set of guidelines about the provision, which are provided hereunder:

1. No one may broadcast the victim’s name in print, electronic, or social media, or even in a distant way, divulge any details that may lead to the victim’s identification among the public.

2. In cases where the victim is deceased or mentally ill, the victim’s name or identity should not be revealed, even with the consent of the next of kin, unless circumstances justifying the disclosure persist, which should be decided by the competent authority, the competent authority, in this case, was the Sessions Judge.

3. FIRs for offenses under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, or 376-E of the IPC, as well as violations under POCSO, are not to be made public.

4. If a victim files an appeal under Section 372 CrPC, the victim does not need to reveal his or her identity, and the appeal will be handled as per the law.

5. All papers in which the victim’s identity is exposed must be kept under a sealed cover as much as possible. These documents should be replaced with similar documents in which the victim’s name will be deleted from all records that may be scrutinized in the public domain.

6. All authorities to whom the victim’s name is provided by the investigating agency or the Court are likewise obligated to keep the victim’s name and identity secret and not to reveal it in any way except in the report, which must be delivered to the investigating agency or the Court in a sealed envelope.

7. An application by the next of kin to authorize the disclosure of the identity of a dead victim or a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) an lays down criteria as per our directions.

8. In the case of juvenile victims under the POCSO Act 2012, the Special Court can only permit their identity to be revealed if it is for the child’s benefit.

9. All the States & Union Territories were requested to set up at least one ‘One-Stop Centre’ in every district within one year from the present case's judgment date. 

5. Libnus v. the State of Maharashtra (2021)

In this case, the primary issue dealt with by the High Court was “whether holding hands with a child and taking penis out in front of her would fall within the definition of sexual assault under Section 7 of the POCSO Act?” The Nagpur bench adjudged that holding a minor’s hand and opening the zip of pants will not come under the purview of sexual assault under the POCSO Act, 2012 & would rather be considered sexual harassment. The appellant was not convicted for aggravated sexual assault under Section 10, 12 of the POCSO Act, with other provisions under IPC. Therefore, this decision turned out to be a controversial one, like the skin-to-skin judgment.  

Conclusion

Sexual offense scars a child's psyche, resulting in cognitive impairment, mental agony, and depression. Undoubtedly, the POCSO Act encapsulates the provisions for protecting children from sexual assault and child pornography. After the amendment in the year 2019, the punishment for sexual offenses against children has become more stringent. Still, India has a long way to go to curb sexual offenses against children.