1

JAMIA MILLIA ISLAMIA

SUBJECT: WOMEN AND CHILD LAW

LEGISLATIVE FRAMEWORK OF POCSO ACT, 2012

Submitted by:

Sameeksha Kashyap
B.A.-LLB (Hons.)
Sem. VII, Self-Finance
Roll No.: 16BLW021
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ACKNOWLEGENMENT

Though this project has been presented by me but there are many people who remained in veil,
who gave their all support and helped me to complete this project. First of all I am very grateful
to my subject teacher Dr. Faizanur Rahman for giving me this topic to research on.
I am very thankful to the librarian who provided me several research materials on this topic
which proved beneficial in completing this project. I acknowledge my friends who gave their
valuable and meticulous advice which was very useful and could not be ignored in writing the
project
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CONTENTS

TOPIC PAGE NO.

1) Introduction……………………………………………………..…………….………….04
2) Legal provisions pre-POCSO, 2012 era………………………………..………..……….06
 Constitutional mandate………………………………………………….……….…..07
3) Legal mechanism under the POCSO Act, 2012……………….………….………….….10
 Medical examination of the child………………………………………….……10
 Mechanism for reporting cases…………………………………………….……10
 Steps to be taken by the authorities after the case has been reported…….….....10
 Role of CWC………………………………………………………..…………..12
 Vital information that must be provided to the child……………………………13
 Recording of statements of the child by the police…………………………..….13
 Recording of statements by the magistrate………………………………………14
 Trail before the Special Court…………………………………………….……..15
 Responsibilities of the Special Court...………………………………………….15
 Role of Commissions for the protection of child rights…………………………16
4) Legislative Changes: The POCSO (Amendment) Bill, 2019……………………………19
 Penetrative Sexual Assault………………………………………………………19
 Aggravated Penetrative Sexual Assualt….…………………………………...…19
 Aggravated Sexual Assault………………………………………………………20
 Pornographic Purposes……………………………………………………..……20
 Storage of Pornographic Material……………………………………………….22
5) Conclusion……………………………………………………………………………….23

Bibliography……………………………………………………………………………..24
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INTRODUCTION

Child Sex Abuse is considered as the most heinous crime which can be done to a child as the
offender of these crimes knows that the forced sex which they are doing with the child is by
leashing child’s vulnerability and trust and is exposing to child under grave trauma which is not
just a physical attack on its body and private parts but also disturbing a child’s mind so blatantly
that it can take a lifetime for the child to feel normal ever after that abuse.

The Census Data of 2011 revealed that India has a population of 472 million children below the
age of eighteen, of which 225 million are girls. In the backdrop of rampant sexual exploitation
and abuse of children, who became ever more vulnerable because of the ineffectiveness of the
prevalent penal laws that were mandated to protect them, the Parliament of India passed the
Protection of Children Against Sexual Offences Bill, 2011 which came into force on 20th June,
2012. The intention of the Parliament in enacting the law was to protect the children from
offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal
machinery by establishing special courts for trial of such offences and matters incidental
connected with child sexual abuse crimes. This was in due compliance of Article 15 of
Constitution of India1 which mandates the states to protect the children of this nation and in lieu
of United Nations Conventions on the Rights of the Child which prescribes the set of standards
to be followed by state parties in securing the best interest of the child.

POCSO ACT defines a child as a person under the age of 18 year. It encompasses the biological
age of the child and remains silent on the mental age considerations.

It recognizes all forms of penetration other than penile-vaginal penetration and criminalizes acts
of immodesty against children too. With respect to pornography, this act criminalizes even
watching or collecting pornographic content involving children under Sec 15 of the Act and shall
be punished with imprisonment of either description which may extend to three years or with
fine or both.

1
Nothing in this article shall prevent the State from making any special provision for women and children.
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This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and is
punishable under Section 18 of the act with imprisonment of any description provided for the
offence, for a term which may extend to one half of the imprisonment for life or, as the case may
be, one-half of the longest term of imprisonment provided for that offence or with fine or with
both.

It also provides for various procedural reforms under Sec 19-22 of the Chapter V under the Act
making the tiring process of trial in India considerably easier for children. The procedural
formalities of reporting the case to Special Juvenile Police has made it easier to report child
sexual abuse cases in a prompt and hassle free manner. Under Sec 20 of the act under chapter V
makes it obligatory for media personnel’s and personnel employed by hotel or lodge or hospital
or club or studio or photographic facilities, by whatever name called, irrespective of the number
of persons employed therein, shall, on coming across any material or object which is sexually
exploitative of the child including pornographic, sexually-related or making obscene
representation of a child or children) through the use of any medium, shall provide such
information to the Special Juvenile Police Unit, or to the local police so that such sex abuse
offenders’ can be tracked down by police immediately.

However, this Act also has been criticized as its provisions seem to criminalize consensual
sexual intercourse between two people below the age of 18 and takes the personal liberty of
adolescents to indulge in consensual sex and youngsters who indulge in sexual activities will be
prone to further harassment from family members, police and society. This new legislation has
reignited the debate over the validity of rationale behind age consent laws and the harmfulness of
adolescent.
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LEGAL PROVISIONS PRE- POCSO,2012 ERA

Before the enactment of POCSO Act, Child sex abuse crimes were dealt under Indian Penal
code. Child Sexual abuses were prosecuted under Indian Penal Code,1860 under following
sections:

❏ Sec 375: Rape

❏ Sec 354: Outraging the modesty of women

❏ Sec 377: Unnatural Offences

However, the I.P.C. was not adequate enough to protect the children and criminalize non-
conventional sexual abuses which are different from above mentioned conventional crimes in
form of child trafficking, pornography, sale of children.

Several loopholes in the IPC prevented the law from effectively protecting the child, such as:

❏ IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a

compoundable offence. Further, it does not protect the “modesty” of a male child.
❏ IPC 375 did not protect male victims or anyone from sexual acts of penetration other

than “traditional” peno-vaginal intercourse.

❏ In IPC 377, the term “unnatural offences” is not defined. It only applies to victims

penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse
of children.

Legal action began to become more prevalent in the 1970s with the enactment of the Child
Abuse Prevention and Treatment in 1974 in conjunction with the creation of the National Centre
for Child Abuse and Neglect. Since the creation of the Child Abuse and Treatment Act, reported
child abuse cases have increased dramatically. Finally, the National Abuse Coalition was created
in 1979 to create pressure in congress to create more sexual abuse laws. In 1986, Congress
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passed the Child Abuse Victim’s Rights Act, giving children a civil claim in sexual abuse cases.
The number of laws created in the 1980s and 1990s began to create greater prosecution and
detention of child sexual abusers. During the 1970s, a large transition began in the legislature,
relating to child sexual abuse. Megan’s Law which was enacted in 2004 gives the public access
to knowledge of sex offenders nationwide.

Constitutional Mandate

The rights of children and their aspirations are of paramount importance in our march towards an
inclusive and equitable society. The Constitution of India recognized the vulnerable position of
children and their right to protection.

Therefore, Constitution of India contains provision for survival, development and protection of
children. These are included both in Part III and Part IV of the Constitution pertaining to
‘Fundamental Rights and ‘Directive Principles of State Policy’, important among there are
Article 14, 15(3), 21A, 23, 24,39(f), 45 and Article 243G read with Schedule 11. Equally, the
children have the right to equality of opportunity, dignity and care, protection and rehabilitation
by the society with both hands open to bring them into the mainstream of social life without pre-
stigma affixed on them f or no fault of his/her.

Article 14. The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India.

Article 15(3). Nothing in this article shall prevent the State from making any special provision
for women and children.

Article 21A. The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.
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Article 23(1). Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance
with law.

Article 24. No child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.

Article 39. The State shall, in particular, direct its policy towards securing-

(a) that the citizens, men and women equally, have the right to an adequate means of
livelihood;

(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.
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Article 45. The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.
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LEGAL MECHANISM UNDER THE POCSO ACT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prescribes five sexual
offences against children - penetrative sexual assault, aggravated penetrative sexual assault,
sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic
purposes. Abetment of or an attempt to commit these offences is also punishable under the Act.
These offences are gender neutral vis-à-vis the perpetrator as well as the victim. The Act requires
the State Governments to designate the Sessions Court in each district as a Special Court to try
offences under the Act. If, however, a Children’s Court under the Commissions for Protection of
Child Rights Act, 2005 or Special Court for a similar purpose has been notified in a district, then
that court will try offences under this Act.

The process laid down under the Act and POCSO Rules, 2012 for recording of complaints and
trial of sexual offences against children is explained below:

Medical Examination of the Child

A medical examination of a child can be conducted even before a FIR is filed or a complaint is
registered. It must be conducted by a registered medical practitioner in a government hospital or
a hospital run by a local authority within 24 hours from the time of receiving information about
the commission of offence. If such practitioner is not available, the examination can be
conducted by any other registered medical practitioner with the consent of the child or a person
competent to give consent on his or her behalf. If the victim is a girl child, the examination must
be conducted by a woman doctor. The medical examination must be conducted in the presence of
the parent or any other person in whom the child reposes trust or confidence. If a parent or such
other person cannot be present, for any reason, the medical examination must be conducted in
the presence of a woman nominated by the head of the medical institution.

Mechanism for reposting of Cases

Persons who can report: Any person (including the child) who has an apprehension that an
offence under the POCSO Act is likely to be committed or has knowledge that an offence has
been committed has a mandatory obligation to report the matter. An express obligation has also
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been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or
photographic facilities, to report a case if they come across materials or objects that are sexually
exploitative of children.

Failure to report is punishable with imprisonment of upto six months or fine or both. This
penalty is, however, not applicable to a child.

Authority to whom should the case be reported : A case must be reported to the Special Juvenile
Police Unit (SJPU) or the local police. The police or the SJPU must then record the report in
writing, ascribe an entry number, read the report over to the informant for verification, and enter
it in a book. A FIR must be registered and its copy must be handed to the informant free of
charge.

Language of the report: If a case is reported by a child, it must be recorded in simple language so
that the child understands what is being recorded. If it is being recorded in a language that the
child does not understand, a qualified translator or interpreter must be provided to the child.

Steps to be taken by the authorities, after the case has been reported, to ensure the care
and protection of the child

The police or the SJPU must take the following steps within 24 hours of the report of the case:

1. Upon recording the case, if the police or SJPU is satisfied that the child is in need of care
and protection, it must record its reasons in writing and immediately arrange to give the child
necessary care and protection. This would include admitting the child into a shelter home or
to the nearest hospital. The police must produce the child before the Child Welfare
Committee (CWC) if the child is found to be in need of care and protection or has no parental
support.

2. If the medical examination was not conducted prior to reporting the case, it must be done
in accordance with Section 164A of the Code of Criminal Procedure. Samples must be
collected for the purpose of the forensic tests and sent to the forensic laboratory at the
earliest.
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3. If the child is in need of urgent medical care and protection, she or he must be taken for
emergency medical care to the nearest hospital or medical care facility centre. Such care
should be administered in the presence of the parent/guardian/other person in whom the child
has trust and confidence. A medical practitioner, hospital or medical facility centre providing
such emergency medical care cannot demand legal or magisterial requisition or
documentation before providing such care.

4. The police or the SJPU must report the matter to the CWC and the Special Court and also
indicate the steps taken to extend care and protection to the child. If a Special Court has not
been designated the matter must then be reported to the Sessions Court.

Role of the Child Welfare Committee

The CWC’s role in matters under the POCSO Act is as follows:

1. Upon receiving a report from the police or the SJPU stating that the child against whom
an offence has been committed is a child in need of care and protection, the CWC must
utilize its powers under the Juvenile Justice (Care and Protection) of Children Act, 2000 to
determine within three days as to whether a child should be taken out of the custody of his
family or shared household and placed in a children’s home or shelter home. The child and
his parent/guardian/other person whom the child trusts and with whom the child has been
living must be informed that such a process is underway. The CWC must take into account
the opinion or preference of the child along with the best interests of the child while making
this determination. The capacity of the parents/parent/other person whom the child trusts to
provide for the immediate care and protection needs of the child, the need for the child to
remain with parent/family/extended family, child’s age and level of maturity, gender, social
and economic background, disability (if any), history of family violence, and other factors
must be considered by the CWC.

2. In all cases under the Act reported to it by the police or the SJPU, the CWC can provide
a support person to assist the child during the investigation and trial of the case with the
consent of the child or the child’s parent/guardian/other person in whom the child has trust or
confidence. The support person could be a person or an organisation working in the field of
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child rights or child protection, or an official of a children’s home or shelter home having
custody of the child, or a person employed by the DCPU. The child and his/her family can,
however, seek assistance from any person or organisation of their choice. Upon their request,
the CWC can even terminate the services of the support person assigned to them.

Vital Information that must be provided to the Child

The police or the SJPU must inform the child and his or her parent, guardian, support person, or
other person whom the child trusts about the following:

❖ Availability of support services including counselling. If required, they must also assist
in connecting the child and his or her family to persons providing support services.
❖ Child’s right to legal aid and legal representation.
❖ Developments, including the arrest of the accused, applications filed, and court
proceedings.
❖ Availability of public and private emergency and crisis services.
❖ Procedural steps involved in a criminal prosecution.
❖ Availability of victims’ compensation benefits.
❖ Status of the investigation of the crime, to the extent it is appropriate to inform the victim
and to the extent that it will not interfere with the investigation.
❖ Filing of charges against a suspected offender.
❖ Schedule of court proceedings that the child is either required to attend or is entitled to
attend.
❖ Bail, release or detention status of an offender or suspected offender.
❖ Rendering of a verdict after trial.
❖ Sentence imposed on an offender.

Recording Statement of the Child By The Police

Place where the child’s statement must be recorded: A child’s statement must be recorded at his
or her residence or a place where he or she usually resides or at a place of his or her choice.
Under no circumstances can a child be detained in the police station in the night. The police
officer must also try and ensure that the statement is recorded by audio-visual means.
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Person or authority who should record the statement: As far as practicable, the statement must
be recorded by a woman police officer not below the rank of a sub-inspector. She should not be
in uniform when the statement is recorded. The assistance of a qualified translator or interpreter
can be taken while recording the statement. The statement must be recorded in the presence of
parents or any other person in whom the child trusts or has confidence.

Steps that the police must take to protect the child: While examining the child, the police officer
investigating the case must ensure that the child does not come in contact with the accused at any
point. The identity of the child must also be protected from the media unless the Special Court,
in the interest of the child, directs otherwise.

What measures must be taken to record the statement of a child with disabilities?

The police officer must seek the assistance of a qualified special educator or a person familiar
with the manner of communication of the child or an expert in that field, while recording the
statement of a child with mental or physical disability.

Recording of Statement by the Magistrate

Procedure for the recording of the statement: A Magistrate recording the statement of a child
under Section 164 of the Code of Criminal Procedure (CrPC) must record it in the exact
language spoken by the child. The statement must be recorded in the presence of parents or any
other person in whom the child trusts or has confidence. The assistance of a qualified translator
or interpreter can be taken while recording the statement. The Magistrate must also try and
ensure that the statement is recorded by audio-visual means. The Magistrate must also provide
the child and his or her parents or representative, a copy of the police report on the matter.

Measures that must be taken to record the statement of a child with disabilities: The Magistrate
must seek the assistance of a qualified special educator or a person familiar with the manner of
communication of the child or an expert in that field, while recording the statement of a child
with mental or physical disability.
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Trial before the Special Court

All trials before the Special Court must be conducted in camera and in the presence of the
parents of the child or any other person the child trusts.

Examination, cross-examination, and re-examination: In the course of recording the

examination-in-chief, cross-examination or re-examination, all questions to the child by the
Special Public Prosecutor or the counsel for the accused must be communicated to the Special
Court which must then put the questions to the child.

Recording of Evidence: The evidence of the child must be recorded within 30 days of the Special
Court having taken cognizance of the offence. If it is delayed, reasons will have to be recorded
by the Special Court explaining the delay. At the time of recording evidence, the Special Court
will have to ensure that the child is not exposed to the accused and also that the accused is in a
position to hear the statement of the child and communicate with his advocate. This can be done
by recording the evidence through video-conferencing or by using single visibility mirrors or
curtains. Assistance of a qualified translator or interpreter or special educator can be sought
while recording the evidence of a child including a child with mental or physical disability.

Responsibilities of the Special Court

The Special Court must take the following measures while conducting the trial under the Act:

❖ If required, permit frequent breaks for the child during the trial.
❖ Create a child-friendly atmosphere by allowing a family member, a guardian, a friend or
a relative, in whom the child has trust or confidence, to be present in the court.
❖ Ensure that the child is not called repeatedly to testify in court.
❖ Not allow aggressive questioning or character assassination of the child and ensure that
dignity of the child is maintained at all times.
❖ Ensure that the identity of the child is not disclosed at any time during the course of
investigation or trial. Such disclosure can be permitted it is in the interest of the child
after reasons are recorded in writing.
❖ Ensure that trial is completed, as far as possible, within one year from the date of taking
cognizance of the offence.
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The Special Court can also order interim compensation to meet the immediate needs of the child
for relief and rehabilitation at any stage after registration of the FIR. Such an order can be passed
based on an application by or on behalf of the victim or by the court on its own. It can also
recommend the award of compensation if the child has suffered loss or injury and where the
accused is convicted, discharged, acquitted, or is not traceable or identifiable. The compensation
awarded is payable by the State Government from the Victims Compensation Fund or other
schemes or funds established for the purpose of compensating and rehabilitating victims under
Section 357A of the CrPC. Such compensation is payable within 30 days of the receipt of the
order.

Role of Commissions for Protection of Child Rights

Under the POCSO Act, the National Commission for Protection of Child Rights and the State
Commissions for Protection of Child Rights have been vested with the responsibilities of:

a) Monitoring the implementation of the provisions of the POCSO Act 2012, as per the
prescribed Rules.

b) Conduct inquiries into matters relating to an offence under the Act.

c) Reporting the activities undertaken under the POCSO Act 2012, in its Annual Report.

The Commissions must monitor the designation of Special Courts, appointment of Public
Prosecutors, formulation of guidelines for use of NGOs, professionals and experts to be
associated with the pre-trial and trial stage, dissemination of information about the Act through
media to promote awareness among the general public, children, parents and guardians.

The Commissions can also call for a report on any specific case of child sexual abuse falling
within the jurisdiction of a CWC. While inquiring into matters relating to an offence under the
Act, they can utilize the powers available to them under the Commissions for Protection of Child
Rights Act, 2005. Post-inquiry, they can recommend to the government to initiate proceedings
for prosecution, recommend interim relief, or make any other recommendations to effectively
redress the matter. They can also approach the High Court or Supreme Court for orders,
directions, or writs.
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The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever
reason, needs to be penalized. The attempt to commit an offence under the Act has been made
liable for punishment for upto half the punishment prescribed for the commission of the offence.

The Act also provides for punishment for abetment of the offence, which is the same as for the
commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual
Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the
accused. This provision has been made keeping in view the greater vulnerability and innocence
of children. At the same time, to prevent misuse of the law, punishment has been provided for
making false complaint or proving false information with malicious intent. Such punishment has
been kept relatively light (six months) to encourage reporting. If false complaint is made against
a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the
Special Court. The punishment for breaching this provision by media may be from six months to
one year.

For speedy trial, the Act provides for the evidence of the child to be recorded within a period of
30 days. Also, the Special Court is to complete the trial within a period of one year, as far as
possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the
Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to
give the child, care and protection such as admitting the child into shelter home or to the nearest
hospital within twenty-four hours of the report. The SJPU or the local police are also required to
report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for
long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media
including television, radio and the print media at regular intervals to make the general public,
children as well as their parents and guardians aware of the provisions of this Act.
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The National Commission for the Protection of Child Rights (NCPCR) and State Commissions
for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor
the implementation of the Act.
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LEGISLATIVE CHANGES: THE PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES (AMENDMENT) BILL, 2019

The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in
Rajya Sabha by the Minister of Women and Child Development, Ms. Smriti Zubin Irani on July
18, 2019.The Bill was passed by the parliament on August 1, 2019 amending the POCSO Act,
2012. The Act seeks to protect children from offences such as sexual assault, sexual harassment,
and pornography.

Penetrative Sexual Assualt

Under the Act, a person commits “penetrative sexual assault” if he:

(i) penetrates his penis into the vagina, mouth, urethra or anus of a child, or

(ii) makes a child do the same, or

(iii) inserts any other object into the child’s body, or

(iv) applies his mouth to a child’s body parts.

The punishment for such offence is imprisonment between seven years to life, and a fine. The
Bill increases the minimum punishment from seven years to ten years. It further adds that if a
person commits penetrative sexual assault on a child below the age of 16 years, he will be
punishable with imprisonment between 20 years to life, with a fine.

Aggravated Penetrative Sexual Assault

The Act defines certain actions as “aggravated penetrative sexual assault”. These include
cases:

● when a police officer, a member of the armed forces, or a public servant commits
penetrative sexual assault on a child.
● where the offender is a relative of the child, or
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● if the assault injures the sexual organs of the child or the child becomes pregnant, among
others.

The Bill adds two more grounds to the definition of aggravated penetrative sexual assault. These
include: (i) assault resulting in death of child, and (ii) assault committed during a natural
calamity, or in any similar situations of violence. Currently, the punishment for aggravated
penetrative sexual assault is imprisonment between 10 years to life, and a fine. The Bill
increases the minimum punishment from ten years to 20 years, and the maximum punishment to
death penalty.

Aggravated sexual assault

Under the Act, “sexual assault” includes actions where a person touches the vagina, penis, anus
or breast of a child with sexual intent without penetration. “Aggravated sexual assault” includes
cases:

● where the offender is a relative of the child, or

● if the assault injures the sexual organs of the child, among others.

The Bill adds two more offences to the definition of aggravated sexual assault. These include:
(i) assault committed during a natural calamity, and

(ii) administering or help in administering any hormone or any chemical substance, to a child for
the purpose of attaining early sexual maturity.

Pornographic purposes

Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in
any form of media for the purpose of sexual gratification. The Act also penalises persons who
use children for pornographic purposes resulting in sexual assault. The Bill defines child
 21

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.

Punishment for using child for pornographic purposes resulting in any form of sexual assault is
in addition to minimum five years for use of child for pornographic purposes.

In addition, the Bill enhances the punishments for certain offences as shown in Table2 below:

Offence POCSO Act, 2012 2019 Bill

Use of child for Maximum: 5 years · Minimum: 5 years

pornographic purposes

Use of child for ● Minimum: 10 years. ● Minimum: 10 years (in case of child
pornographic purposes ● Maximum: life below 16 years: 20 years).
resulting in penetrative imprisonment ● Maximum: life imprisonment
sexual assault

Use of child for Life imprisonment ● Minimum: 20 years

pornographic purposes ● Maximum: life imprisonment, or
resulting in aggravated death.
penetrative sexual
assault

2
https://www.prsindia.org/billtrack/protection-children-sexual-offences-amendment-bill-2019-0.
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Use of child for ● Minimum: Six years ● Minimum: Three years

pornographic purposes ● · Maximum: Eight ● Maximum: Five years
resulting in sexual years
assault

Use of child for ● Minimum: Eight ● · Minimum: Five years

pornographic purposes years ● · Maximum: Seven years
resulting in aggravated ● · Maximum: 10
sexual assault years

Storage of pornographic material

The Act penalises storage of pornographic material for commercial purposes with a punishment
of up to three years, or a fine, or both. The Bill amends this to provide that the punishment can
be imprisonment between three to five years, or a fine, or both. In addition, the Bill adds two
other offences for storage of pornographic material involving children. These include: (i) failing
to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting,
displaying, distributing such material except for the purpose of reporting it.

A major criticism by legal scholars against the introduction of death penalty as the maximum
punishment in case of aggravated penetrative sexual assault, is that there is no empirical data to
show that death penalty actually acts as a deterrent against the crime and furthermore, such a
punishment may create a higher likelihood that the accused would rape and murder a victim to
avoid getting caught.3

3
https://www.indiaspend.com/death-penalty-in-pocso-act-may-imperil-child-victims-of-sexual-offences/
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CONCLUSION

Today's children are tomorrow's future and must be protected. Seven years, after the Protection
of Children from Sexual Offences (POCSO) Act, 2012, came into effect, the noble intentions and
the beneficial provisions of the Act are yet to touch the lives of many affected children. Every
few years a piece of progressive legislation takes shape, only to be let down by those in charge of
implementation. POCSO is not just another law defining offences and prescribing punishments
like the IPC. It is an enabling legislation that mandates child-friendly procedures — in reporting
offences, recording victims’ statements, trial proceedings in special courts, and counseling.

The need for POCSO was felt after surveys showed a high number, 40 to 50 per cent of
respondents, complaining of sexual abuse as children. Crimes against children rose from 26,694
in 2010 to 38,172 in 2012. Besides being gender-neutral, the Act classified offences into
penetrative sexual assault (seven years to life imprisonment), aggravated penetrative sexual
assault (ten years to life), sexual assault (three to five years), aggravated sexual assault (five to
seven years), and sexual harassment (three years and fine).

The POCSO (Amendment) Bill, 2019 was passed on August of 2019 and has not only added
new grounds for a number of grave offences against children in the 2012 but have also
introduced harsher punishments e.g life imprisonment as the maximum punishment for use of
child for pornographic purposes resulting in penetrative sexual assault. A major point of criticism
against enhancement of punishments under POCSO has been the introduction of death penalty as
the maximum punishment for the crime of aggravated penetrative sexual assault. Critics have
expressed the apprehension that rather than having a deterrent effect, death penality can put the
victim at great risk as there is higher likelihood that the offender can rape and murder the victim
for the fear of getting caught. Today, most functionaries assume their responsibility is complete
by charging the accused under POCSO. The deterrence value of POCSO does not emanate from
the harshness of its punishments. The favourable environment created for children and families
to report crimes and cope with the vagaries of the trial stage is the heart, soul, and muscle of the
POCSO Act.
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BIBLIOGRAPHY

Websites and Articles referred:

 https://www.indiaspend.com/death-penalty-in-pocso-act-may-imperil-child-
victims-of-sexual-offences/
 https://www.prsindia.org/billtrack/protection-children-sexual-offences-
amendment-bill-2019-0
 Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013
http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-
2012/articleshow/19718160.cms
 http://kushmanda.com/the-protection-of-children-from-sexual-offences-pocso-act-
2012/
 http://www.npscindia.com/downloads/1406783345.pdf
 http://pib.nic.in/newsite/erelease.aspx?relid=84409
 Brief Analysis Of The Protection of Children from Sexual Offences Act, 2012
https://blog.ipleaders.in/brief-analysis-protection-children-sexual-offences-act-
2012/
 The Protection of Children from Sexual Offences (POCSO),
https://clsjgu.wordpress.com/2017/01/04/protection-of-children-from-sexual-
offences-an-analysis/