October 5, 2022

Akanksha Presi

Edited by: Ms Ragini Sehgal

pocso
The Sex Crimes Unit office of the Minneapolis Police Department inside Minneapolis City Hall in downtown Minneapolis, Minnesota.

“Survivors of abuse show us the strength of their spirit every time they smile.” – Jeanne McElvaney.

Abstract

While society adapts to new changes, the law cannot stay stagnant and rigid. For protecting children or minors from sexual assault the government of India enacted a law in 2012 named Protection of Children from Sexual Offences (POCSO) and later it was amended in 2019. Similar to the rape statute under the IPC, the foregoing set of provisions under the POCSO Act is a strong sign of gender bias. Because the accused’s pronoun is “he”, only a man can be charged with the offences under the applicable provisions of the POCSO Act.

Even though unlike rape, the victim of the POCSO Act can be any child of any gender, the accused can only be a male, and females are once again provided a protective shield for inexplicable reasons. 53.2% of children reported having faced one or more forms of sexual harassment states such as Andhra Pradesh, Assam, Bihar, and Delhi reported the highest percentage of sexual harassment among the boys and girls. Child abuse includes sexual activity with minors without the child’s consent, such as oral-genital contact, intercourse, and exposure to pornography. Article 15 of the Indian Constitution mandates that states protect the children of this nation.

Introduction

While society adapts to new changes, the law cannot stay stagnant and rigid. For protecting children or minors from sexual assault the government of India enacted a law in 2012 named Protection of Children from Sexual Offences (POCSO) and later it was amended in 2019. Similar to the rape statute under the IPC, the foregoing set of provisions under the POCSO Act is a strong sign of gender bias. Because the accused’s pronoun is “he”, only a man can be charged with the offences under the applicable provisions of the POCSO Act.

Even though, unlike rape, the victim of the POCSO Act can be any child of any gender, the accused can only be a male, and females are once again provided a protective shield for inexplicable reasons. 53.2% of children reported having faced one or more forms of sexual harassment states such as Andhra Pradesh, Assam, Bihar, and Delhi reported the highest percentage of sexual harassment among the boys and girls. Child abuse includes sexual activity with minors without the child’s consent, such as oral-genital contact, intercourse, and exposure to pornography. Article 15 of the Indian Constitution mandates that states protect the children of this nation.

The POCSO Amendment Act of 2019 was passed to increase the penalties for child sexual abuse, but the amendment, is arbitrary and unclear, and several clauses of the Amendment Act, 2019, are ambiguous. Sexual assault is defined by the act as touching a child’s vagina, urethra, or anus of a child and forces the child to do the same or other objects are inserted into the child’s body or his mouth is applied to various sections of the child’s body. Provisions of sections 11 and 12 of the POCSO Act deal with sexual harassment and intent is compulsory to commit child sexual harassment.

There are two types of sexual assault is defined by the act first one is Penetrative sexual assault and the second one is Aggravated penetrative sexual assault. Under the Act, a person commits penetrative sexual assault if a person inserts his penis into the vagina, urethra, or anus of a child and forces the youngster to do the same or other objects are inserted into the child’s body, and his mouth is applied to various sections of the child’s body. And Aggravated penetrative sexual assault is defined in an act that crime committed by a police officer, armed force or by a public employee or servant or by a relative of the child and if the assault resulted in the death of the child or child becomes pregnant or assault is committed during a natural calamity. Sections 29 and 30 of the POCSO Act 2012 violate Article 21 of the constitution which is the right to a free and fair trial by the constitution. Section 34 states that if the accused is minor then he will be treated under the Juvenile Justice Act, 2015.

The POCSO Amendment Act of 2019

The POCSO Amendment Act of 2019 added section 4(2) which allows for an unjustified classification in violation of article 14 of the constitution. Before the amendment of the Act penalty for penetrative sexual assault under the POCSO Act, 2012 ranged from seven years to life imprisonment but after amendment, the minimum punishment increased from seven to ten years by inserting Section 4(1)3 and two sub-clauses Section 4(2) and Section 4(3). Offenders who commit penetrative sexual assault on a child under the age of sixteen will henceforth be punished under the Act’s new sub-clause (2) and the minimum sentence has also been increased to twenty years. And the word life imprisonment refers to incarceration for the rest of one’s natural life, including provisions like sections 4(2) 6 and 6(1) 7 also added in the POCSO ACT 2019.  The penalty is added in Section 6(1) in the case of  Aggravated penetrative sexual assault and penetrative sexual assault.  The death penalty is also mentioned in the act in case of heinous child sexual assault.

Major Loopholes in POCSO Act

The legislature defined a child as an individual under the age of eighteen years but in this act, classification is creating confusion and sounds vague because for example raping a kid under the age of sixteen is a more serious offence, however, raping a kid between the age of sixteen to eighteen is not, who may have the same maturity level and thus this classification is leading to violation of Article 14. The intent is compulsory to commit child sexual abuse it is extremely difficult to establish intent in a court, if any accused commits child sexual abuse without intending to cause sexual abuse, does this not constitute child sexual harassment? A word like life imprisonment refers to incarceration for the rest of one’s natural due to this offender are subject to use section 14(2) 8 and 14(3) 9 to avoid serving their initial life sentence. The death penalty is problematic because many predators are from the victim’s family in 2016 National Crime Records in India reports that 94.6 percent of rape with penetrative sexual assault were committed by people known to the victim. If the victim’s family will come forward and file a complaint, knowing that allegation will result in the death of the accused so there’s a good chance that few cases will be reported. Section 34 of the Act gives powers to the accused that if he is minor then he will be treated under the juvenile justice act in this way half justice is given to the deceased family. The recent controversial verdict by the Indian judiciary honourable justice Pushpa Ganediwala of the Nagpur bench of the Bombay high court acquitted a man under IPC instead of POCSO because there is no skin-to-skin contact between the victim and accused is struck down by the supreme court because having sexual intent itself is to acquit the accused and the Allahabad high court in its recent judgment said that oral sex with minors is not an aggravated penetrative sexual assault, the main reason behind that judges refrain them to book them under POCSO because of minimum mandatory sentencing the legal fraternity view that minimum sentences under POCSO are very high.

Suggestions

To conclude, the constitution of India provides the parliament with the power of amending its provisions without any alteration in the basic structure by the use of  Article 368. Children are a vulnerable group that is frequently subjected to many forms of exploitation the aim of the POCSO Act is established to protect children from sexual abuse in our country the arbitrary and vague provisions in the section of the Act are creating points in favouring the offenders. One can open a serious conversation about child abuse and may bring long-term structural change for our children.

Conclusion

The Act was enacted to protect children from sexual abuses across the country but provisions in the Act somehow always favour the offenders. The government of India has to make provisions that if the victim is under the age of 18 and committing a heinous crime like the Kathua rape case and Nirbhaya rape case then he must be punished under the POCSO Act. And regarding the punishment to offenders, the Act must have given powers to the victim’s family to decide the nature of the punishments.

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