POCSO Act

Every year, millions of girls and boys all over the world are sexually abused or exploited. Sexual violence occurs in every country and in every segment of society. A child may be sexually abused or exploited at home, school, or in their community. The widespread use of digital technologies can also endanger children. The Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act in 2012 in order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions. The Act, as well as the Rules enacted under it, went into effect on November 14, 2012.

A comprehensive law to protect children from sexual assault, sexual harassment, and pornography, the POCSO Act, 2012 incorporates child-friendly mechanisms for reporting, recording evidence, investigation, and speedy trial of offences through designated Special Courts, while also safeguarding the interests of the child at every stage of the judicial process.

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A Representative Image of the POCSO Act

How Does POCSO Protect Children from Sexual Abuse?

Let us Understand in Detail How Does POCSO Protect Children From Sexual Abuse:

• In order to ensure a child's healthy physical, emotional, intellectual and social development, the Act is gender-neutral.

• The Act defines a child as any person under the age of eighteen and considers the child's best interests and well-being to be of paramount importance at all stages in order to ensure the child's healthy physical, emotional, intellectual, and social development.

• It distinguishes between different types of sexual abuse, such as penetrative and non-penetrative assault, as well as sexual harassment and pornography, and considers sexual assault to be “aggravated” in certain circumstances, such as when the abused child is mentally ill or when the abuse is perpetrated by someone in a position of trust or authority over the child, such as a family member, police officer, or teacher.

• Individuals who traffic children for sexual purposes are also subject to the Act's abatement provisions. The Act stipulates harsh punishments that are tiered according to the severity of the offence, with a maximum sentence of life imprisonment and a fine.

• It defines "child pornography" as any visual depiction of sexually explicit activities involving a child, including photographs, videos, digital or computer-generated images indistinguishable from real children, and images developed, adapted, or changed to look like children.

What Are the Provisions of the POCSO Act, 2012?

• The Act establishes Special Courts for the trial of offences under the Act, with the best interests of the child paramount at all stages of the judicial process.

• The Act includes child-friendly procedures for reporting, recording evidence, investigating, and prosecuting offenders. These include: 

• recording the child's statement at his or her residence or a location of his choice, preferably by a female police officer not lower than the rank of sub-inspector.

• No child should be detained in a police station in the middle of the night for any reason.

• While recording the child's statement, the police officer should not be wearing his or her uniform.

• The child's statement is to be recorded as spoken by the child.

• As needed, the child may benefit from the services of an interpreter, translator, or expert.

• In the event that the child is disabled, the assistance of a special educator or another person who is familiar with the child's communication style is recommended.

• A medical examination of the child will be performed in the presence of the child's parent or any other person in whom the child has trust or confidence.

• If the victim is a girl child, the medical examination must be performed by a female doctor. During the trial, the child was given frequent breaks. The child will not be called to testify more than once.

• There will be no aggressive questioning or character assassination of the child during the in-camera trial of cases.

• The Act recognises that the intention to commit an offence, even if unsuccessful for whatever reason, must be punished.

• The attempted commission of an offence under the Act is punishable by up to half the punishment prescribed for the commission of the offence.

• The Act also provides for punishment for aiding and abetting the commission of the offence, which is the same as for the commission of the offence.

• According to the law, it is mandatory to notify the commission of an offence and to file a complaint, and failing to do so could result in a six-month jail sentence or fine. If the police or Special Juvenile Police Unit fails to report a crime under this act [Section-2141], it is a punishable act.

• Making false complaints or providing false information with malicious intent is punishable in order to prevent the misuse of the legislation. In order to encourage reporting, the punishment has been maintained relatively modestly (six months). There is a greater penalty (one year) for falsely accusing a youngster (Section 22).

• With regard to more serious crimes such as Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is transferred to the accuser in order to ensure that the accused is guilty. As a result of children's vulnerability and innocence, this provision was made.

• Without the consent of the Special Court, the media is prohibited from revealing the identity of the child. A violation of this rule by the media might result in a prison sentence of six months (Section 23).

• According to the law, a child's testimony must be documented within 30 days in order to ensure a timely trial. A last requirement of the Special Court is that it must complete the trial within a year, if possible (Section 35).

• The Central and State Governments are required by the Act to make the general public, children, and their parents and guardians aware of the provisions of the Act through the media, including television, radio, and print media, at regular intervals.

• Special Juvenile Police Unit (SJPU) or local police, upon receiving a complaint, will take prompt action to provide the kid with care and safety by admitting the child to the nearest shelter or hospital within 24 hours. As a result of this, the SJPU or local police must additionally notify the Child Welfare Committee within 24 hours of receiving a complaint, in order to ensure long-term rehabilitation.

• Child survivors and adult perpetrators are the only ones covered by the POCSO Act. The Juvenile Justice (Care and Protection of Children) Act, 2000, will apply if two children have sexual contact with each other or if a child commits a sexual offence against an adult.

• Where an act or omission constitutes an offence punishable under this Act as well as sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E, or section 509 of the Indian Penal Code (45 of 1860), the offender found guilty of such offence shall be liable to punishment under this Act or undeclared.

• This Act's provisions are in addition to, and not in derogation of, any other law's provisions. In the event of a conflict, the provisions of this act will take precedence over any other provisions.

Penalties For Act-related Infractions

Now that we have understood what the POCSO Act is and what its provisions are, let us understand the penalties and punishments for violating the act.

• Penetrative Sexual Assault (Section 3) against a minor has a minimum sentence of 10 years in jail, with the possibility of life imprisonment and a fine (Section 4). Whoever performs penetrative sexual assault on a child under the age of sixteen must be punished by imprisonment for a term of not less than twenty years, but which may extend to life imprisonment, which means imprisonment for the rest of that person's natural life, as well as a fine.

• Section 5: Aggravated Penetrative Sexual Assault — Not less than twenty years in jail, with the possibility of life imprisonment and a monetary fine (Section 6).

• Sexual Assault (Section 7) — Not less than three years jail (with the possibility of a five-year sentence) and a fine (Section 8).

• Aggravated Sexual Assault (Section 9) by a person in authority — Minimum sentence of five years, with the possibility of a maximum sentence of seven years, plus a fine (Section 10). 

• Child Sexual Harassment (Section 11) – Three years in prison and a fine (Section 12).

• Child Use for Pornographic Purposes (Section 14) — Section 14(1)  imposes a minimum of five years in prison and a fine, and a maximum of seven years in prison and a fine if convicted again.

• Child pornographic use resulting in penetrative sexual assault: No less than ten years (in case of a child below 16 years, not less than 20 years).

• Child pornographic use resulting in aggravated penetrative sexual assault: 20 years in prison and a fine.

• Use of a child for pornographic purposes resulting in sexual assault: A minimum of three years, with a maximum of five years.

• Any person who stores or possesses pornographic material in any form involving a child but fails to delete, destroy, or report the same to the designated authority, as prescribed, with the intent to share or transmit child pornography - Fine of not less than Rs 5,000; fine of not less than Rs 10,000 in the case of a second or subsequent offence.

• Use of a child for pornographic purposes resulting in aggravated sexual assault: A minimum of five years, with a maximum of seven years.

• On the first conviction, any person who stores or possesses pornographic material in any form involving a child for commercial purposes faces the following penalties: Not less than three years in prison, with the possibility of extension to five years, or a fine, or both. Second or subsequent conviction: not less than five years in prison and up to seven years in prison, as well as a fine.

• Any person who stores or possesses pornographic material in any form involving a child for the purpose of transmitting, propagating, displaying, or distributing in any manner at any time other than for the purpose of reporting, as prescribed, or for use as evidence in court, shall be punished with imprisonment of either type: Up to three years in prison, a fine, or both.