The government has introduced an unique legislation, the POCSO Act, 2012, to
address sexual assaults and child exploitation. The aforementioned Act punishes
all recognised cases of sexual abuse of minors severely while taking the
seriousness of the offence into consideration. To guarantee that justice is
upheld, the Act is being implemented in a different way.
The sufferer must
undergo the medical examination with the least amount of discomfort. The POCSO
Amendment Act, 2019 was passed to strengthen penalties all the way up to the
death sentence and to stop the use of child pornography. Unfortunately, the
modification appears arbitrary and ambiguous. The writers claim that the
provisions of the Amendment Act, 2019, which are listed below, are arbitrary and
The Unreasonable Classification:
A categorization that is unjustified and in violation of Article 14 of the
Constitution is provided by Section 4(2) of the POCSO Act, which was added by
the POCSO Amendment Act of 2019.
The phrase "equal protection of laws" is found in Article 14. Class legislation
is forbidden, but it is okay to classify people or objects in a sensible way.
The Anwar Ali Sarkar case outlined the traditional linkage test as follows;
Two requirements must be met in order to pass the test of permitted
- The categorization must be based on an understandable difference that
separates those in the group from those who are excluded, and
- That there must be a logical connection between the differentia and the
goals that the Act aspires to accomplish. There must be a link between the
differences that form the basis for the categorization and the purpose of
the Act because they are distinct. 1
In the instances that followed that dealt with the question of a breach of
Article 14, the court restated and implemented the standard that the Hon'ble
Supreme Court established in the Anwar Ali Sarkar case
. In D. S. Nakara v. Union
2, the court ruled that a distinction between pensioners who retired
before a certain date and those who retired after that date was irrational and
that the distinction should not have been imposed. As a consequence, Rule 34 of
the Central Services regulations was annulled because it violated Article 14 of
Prior to the passing of the POCSO Act in 2019, penetrative sexual assault was
punishable by seven years to life in jail as well as a fine under the POCSO Act
The Act of 2019 added Section 4(1) 3 and two subclauses to Section 4: Sections
4(2) &4 to increase the minimum sentence from "seven" to "10" years (3).
Now, the new sub-clause (2) included by the Act imposes penalties on those who
engage in penetrative sexual assault on a minor under the age of sixteen. It is
important to remember that the minimum sentence of jail has also raised to
The legislature distinguishes between a kid who is under the age of sixteen and
a child who is beyond the age of sixteen but under the age of eighteen by
including this subclause (2). Yet, for the purposes of this Act, the legislature
defined a "child" as "any individual under the age of eighteen." Because it has
been created within the same group, namely "children," the aforementioned
classification should be considered fair.
No discernible differences are possible within this grouping. The
differentiation in this categorization is hazy since it's difficult to pinpoint
the maturity factor's age. For instance, a youngster of seventeen years old
could be as mature as a child of fifteen, or it might be the other way around.
Some people may only reach adulthood at the age of 19, while others may do so as
early as age seventeen. A fifteen-year-old youngster could look to be nineteen.
It should be highlighted that the differentia must be logically related to the
goals that the Act seeks to accomplish. This Act's goal is to safeguard minors
against sexual assault, sexual harassment, and pornographic offences.
It also establishes Special Courts to hear cases involving these offences as
well as others that are related to or incidental to them. As a result, because
the primary goal of the Act is to safeguard children, this difference has
nothing to do with the outcomes that the Act hopes to achieve.
This categorization supports the idea that raping a kid under the age of sixteen
is a more serious offence than raping a child who is sixteen or seventeen, who
may be equally mature as some youngsters in the other class is not seen as a
more serious offence. Because of its unreasonableness, this categorization
violates Article 14 of the Constitution.
The newly added sub-clause (3) further specifies that "The fine imposed under
sub-section (1) should be just and reasonable and provided to the victim to
support the medical expenses and rehabilitation of such victim." It is important
to note that while the newly added clause (2) addresses the payment of a fee in
the event of an offence, the sub-clause (3) does not address the fine imposed
under Section 4. (2). Is it not essential that the fine levied in accordance
with Section 4(2) be reasonable and that it be put towards the victim's
The POCSO Act's Sections 11 and 12 contain laws relating to sexual
harassment and its penalties. A person is deemed to have sexually harassed a
minor, according to Section 11, "when such person with sexual purpose..."
Moreover, it has been stated that any enquiry into "sexual intent" should be a
factual enquiry. It has been established and is widely acknowledged that proving
intent in a legal proceeding is highly challenging.
The issue of whether sexual harassment would still occur if an offender
committed any of the activities specified in Section 11 without intending to
engage in sexual activity also arises. Even the Indian Criminal Code's Section
354A, which defines sexual harassment, avoids using the word "sexual purpose"
because it is not a prerequisite for engaging in sexual harassment.
Consequently, the phrase "sexual purpose" creates a gap in Section 11 of the Act
that will benefit the criminals.
Chaos Regarding the Understanding of the life Imprisonment:
Regarding how the idea of life imprisonment should be understood, the POCSO Act
leaves several ambiguities and debates behind. Instead of using the phrase
"imprisonment for life," as in Sections 4, 6, 14(2), and 14(3) of the original
Act, "imprisonment for life, which shall imply imprisonment for the balance of
that person's natural life" is used in Sections 4(2) and 6(1) of the POCSO Act
This revised wording causes a misconception that the latter listed Sections do
not provide for the sentence of life imprisonment for the balance of that
person's natural life. Life imprisonment is understood to entail imprisonment
for the duration of the person's natural life; hence, it is not required to
specify this in a provision because it is assumed that other clauses already in
existence that do not do so do not have the same meaning.
In India, life imprisonment is allowed under Section 53 of the Criminal Code. A
sentence of life in prison, unless commuted or suspended by competent
authorities, indicates that the offender will stay behind bars for the remainder
of their natural lives. 4 "A sentence of life imprisonment does not equate to a
sentence of 14 or 20 years.
Life sentence cannot be considered as 14 or 20 years of imprisonment without a
formal pardon from the relevant government, according to neither the IPC nor the
Code of Criminal Procedure. But if the relevant government issues a different
order waiving the remaining time on his sentence, he might be freed.
Although Indian courts have often ruled that the term "life imprisonment" refers
to incarceration for the length of a person's natural life, introducing clauses
like Sections 4(2) and 6(1) 7 that include this language is extremely likely to
overlook the life-prison sentence. Moreover, it loses its deterrent power since
those who violate Articles 14(2) 8 and 14(3) 9 will exploit this loophole to
avoid serving their initial life term in jail.
The question of whether the phrase "one half of life imprisonment" may be
calculated is another crucial issue to be made in this respect. The punishment
for attempting to commit an offence is outlined in Section 18 10 of the Act. It
states that the worst penalty is a period that might equal up to one-half of a
life sentence in prison.
Any non-fixed duration, such as 20 or 30 years, is acceptable. It leaves it up
to the judges to determine the maximum sentence, rather than establishing one.
It's unclear what what is meant by "one half of life imprisonment." Due to the
provision's ambiguity and consequent violation of article 14 of the
constitution, it makes it difficult to determine the maximum period of
Including Death Penalty as a Punishment:
By adding the death sentence as a punishment, the POCSO Act 2019's new addition
to the Act has actually lessened its deterrence impact. The highest sentence for
severe penetrative sexual assault is the death penalty, according to Section
6(1), which was added in place of Section 6 of the original Act.
If the perpetrator is a relative of the victim or the survivor, the
implementation of the death sentence may be even more challenging. According to
the 2016 crime in India data from the National Crime Records Bureau (NCRB),
94.6% of rape cases involving penetrating sexual assault on children were
committed by people the victim knew.
Realistically speaking, there are extremely slim odds that a child who has been
sexually assaulted by a family member or relative will come forward and file a
complaint, knowing full well that the report will result in the death of the
individual in question. As a result, there is a good chance that fewer instances
will be recorded.
Due to the possibility of the death penalty following the revelation of a sexual
act by the victim who survived the crime, the adoption of the death penalty may
also raise the likelihood of rape and murder cases.
However, the Law Commission's 2015 study on the death penalty noted that there
is no factual evidence to support the idea that the death sentence acts as an
additional deterrent to life in prison.
Treating a Minor Accused as a Juvenile:
According to Section 34 of the Amended Act, if a minor commits a crime as
defined by the provision, they will be dealt with in accordance with the
Juvenile Justice Act of 2015, and the Special Court will decide if there is any
disagreement about the person's age. 27 According to the aforementioned section,
any kid under the age of 18 who violates any provision of the Act will be dealt
with in accordance with the Juvenile Justice Act, and the Special Court will
decide whether or not his age makes him a minor in accordance with the law.
Because of this, the Court would consider whether a youngster accused of a
sexual offence should be dealt with in accordance with the POCSO Act or the
Juvenile Justice Act. This is done on the grounds that the accused's age is
being questioned, but the attack that was perpetrated is never taken into
account. As a result, kids who commit horrible crimes often go unpunished
despite the seriousness of the offences they have committed.
In the notorious
Kathua Rape Case
, eight people were accused of abducting and raping an
innocent 8-year-old girl; six of them were found guilty, one was exonerated
based on the presumption of innocence, and the other, a child, was prosecuted in
It is important to mention that the young man is accused of abducting the girl
on January 10 and raping her there later that day. It was also discovered that
the young man had killed the girl by strangling her and smashing her face with a
stone. The most noteworthy aspect is that the juvenile accused, who is the
primary accused, has not been punished for perpetrating such a horrible crime,
with "half justice" only being provided for the deceased's family. However,
despite several requests filed by the accused, the remaining defendants have not
yet been hung, and the legal procedure is taking longer than expected.
Even in the Nirbhaya Case, the juvenile who was mostly responsible for the
deceased's death because he struck her with an iron rod was treated as a
juvenile and was sentenced to three years in prison; today, he is employed as a
cook in a southern region of the country. Even if it is without question that
the juvenile's actions also directly contributed to the deceased's rape and
death, they are nevertheless being shielded by the fact that he is a minor. To
ensure that justice is served, this barrier must be removed, and anybody accused
of committing a sexual offence while still a juvenile must be punished as an
According to Section 34 of the Act, any youngster suspected of committing a
heinous crime would be considered as an adult for the purposes of the law and
will face severe punishment. It is unacceptable to classify the accused as a
youngster under the Juvenile Justice Act because of their age. This
misconception under Section 34 must be changed in a way that advances the code's
goals and ensures that the appropriate individual receives justice.
Even if the legislation is effective and good, loopholes can still be made. The
POCSO Act is a comprehensive piece of legislation designed to safeguard children
against exploitation and sexual abuse. Legislators develop laws with the benefit
of the populace in mind; creating ineffective or ambiguous legislation is not at
all what they are trying to do.
The amending Act, however, favours the criminals in some instances and is
arbitrary, going against the fair application of the law. According to the
writers, several modification provisions must be deleted in order to ensure that
the legislation is implemented as written.
Award Winning Article Is Written By: Mr.Satyam
Authentication No: AP310074174459-10-0423