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Widening The Scope Of The POCSO Act, 2012 And Interpretation Of The Statute Via Case Laws

The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law that came into force w.e.f. 14th November, 2012. It is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.[1]

Besides, India is a signatory to the UN Convention on the Rights of the Child since 1992. The parties to the Convention are required to take measures to prevent children from being coerced into any unlawful sexual activity.[2]

The said Act defines a child as any person below eighteen years of age. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. Thus, Instigating, abetting and attempting an offence of sexual abuse, sexual assault, sexual harassment and pornography are also punishable.

According to the POCSO Act, everyone is obliged to report the sexual abuse of a child. Failure to report or record is a punishable offence. However, a child cannot be punished for failing to report. It prescribes severe penalties for offences. The maximum penalty is life imprisonment and a fine.

Various punishable offences under the POCSO Act, 2012

Sexual Offences Against Children
  1. Penetrative Sexual Assault and Punishment Therefore
    Section 3. Penetrative sexual assault.
    Section 4. Punishment for penetrative sexual assault.
     
  2. Aggravated Penetrative Sexual Assault and Punishment Therefor
    Section 5. Aggravated penetrative sexual assault.
    Section 6. Punishment for aggravated penetrative sexual assault.
     
  3. Sexual Assault and Punishment Therefor
    Section 7. Sexual assault.
    Section 8. Punishment for sexual assault.
     
  4. Aggravated Sexual Assault and Punishment Therefor
    Section 9. Aggravated sexual assault.
    Section 10. Punishment for aggravated sexual assault.
     
  5. Sexual Harassment and Punishment Therefor
    Section 11. Sexual harassment.
    Section 12. Punishment for sexual harassment.

Using Child For Pornographic Purposes And Punishment Therefore
Section 13. Use of child for pornographic purposes.
Section 14. Punishment for using child for pornographic purposes.
Section 15. Punishment for storage of pornographic material involving child.

Significance Of Pocso Act, 2012
The Indian Penal Code does not recognize that sexual assault can be committed on boys. So, there was a need to introduce such a law. The POCSO Act was enacted in 2012 and is gender neutral ” it recognizes that boys can be victims of sexual violence as well.

The Act also increased the scope of reporting sexual crimes against children. It expanded the definition of sexual assault to include non-penetrative sexual assault as well as aggravated penetrative sexual assault (sections 3 to 10), and also included punishment for persons in positions of trust of authority like public servants, staff of educational institutions, police etc.

Notably, this law recognizes sexual harassment of a child which involves touch, and also that which doesn't (sections 11 and 12), such as stalking, making a child expose themselves or exposing themselves to a child, and so on.

The POCSO Act also specifically lays down stringent punishment for exposing children to, or using them to create child sexual abuse material, i.e., for Pornographic purposes under sections 13, 14, and 15.

The POCSO 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 amends the Protection of Children from Sexual Offences Act, 2012.[3]
  • Penetrative sexual assault:
    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 Bill adds two more grounds to the definition of aggravated penetrative sexual assault:
    1. assault resulting in death of child, and
    2. 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:
    The Bill adds two more offences to the definition of aggravated sexual assault. These include:
    1. assault committed during a natural calamity, and
    2. administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.
       
  • Pornographic purposes:
    The Bill defines child 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.
     
  • Storage of pornographic material:
    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:
    1. failing to destroy, or delete, or report pornographic material involving a child, and
    2. transmitting, displaying, distributing such material except for the purpose of reporting it.

Amendment to POCSO Rule, 2020
After the amendments to the POSCO Act in August, 2019 the Supreme Court in September directed the Centre to follow the compensation structure specified by the National Legal Services Authority. In November, Supreme Court registrar Surinder S Rathi's report on POCSO cases found that only 1% of minor sexual assault survivors get compensation and that 96% are not provided support by the persons to assist them during legal processes. Officials began drafting the rules in October.[4] The provision comes on the back of recent cases of child sexual abuse in child care institutions in Muzaffarpur in Bihar and Deoria in UP.[5]

The Ministry Of Women And Child Development of central government on 9th March 2020 notified Protection of Children from Sexual Offences Rules, 2020 replacing the earlier 2012 Rules.[6]

Key features of the Rules:
  • Mandatory police verification of staff in schools and care homes, procedures to report sexual abuse material (pornography), imparting age-appropriate child rights education among others.
     
  • Compensation to be paid within 30 days as per new POCSO Rules.[7] The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order.

    As per the Rules, where an officer of the SJPU, or the local police receives information under section 19 of the Act that an offence under the has been committed, and is satisfied that the child against whom an offence has been committed is in need of urgent medical care and protection, such officer, or as the case may be, the local police shall, within 24 hours of receiving such information, arrange to take such child to the nearest hospital or medical care Facility Centre for emergency medical care.
     
  • For crackdown on child pornography, the rules state that “ any person who has received any pornographic material involving a child or any information regarding such pornographic material being stored, possessed, distributed, circulated, transmitted, facilitated, propagated or displayed, or is likely to be distributed, facilitated or transmitted in any manner shall report the contents to the special juvenile police unit (SJPU) or police, or the cybercrime portal.
     
  • The report shall include the details of the device in which such pornographic content was noticed and the suspected device from which such content was received including the platform on which the content was displayed.
     
  • Under the rules, the state governments have been asked to formulate a child protection policy based on the principle of "zero-tolerance" to violence against children, which shall be adopted by all institutions, organisations, or any other agency working with, or coming in contact with children
     
  • The centre and every state government shall provide periodic training including orientation programmes, sensitisation workshops and refresher courses to all persons, whether regular or contractual, coming in contact with the children, to sensitise them about child safety & protection, and educate them regarding their responsibility.
     
  •  The Centre and state governments have been asked to prepare age-appropriate educational material and curriculum for children, informing them about various aspects of personal safety, including measures to protect their physical and virtual identity; and to safeguard their emotional and mental wellbeing, prevention and protection from sexual offences and reporting mechanisms, including Childline helpline services through toll free number - 1098.
     
  • Under the new rules, any institution housing children or coming in regular contact with children, including schools, creches, sports academies or any other facility for children must ensure a police verification and background check on periodic basis of every staff.

Interpretation Of Statue Via Case Laws
  1. Satish Regde vs. State of Maharashtra [8]
    Facts in brief:
    • The Nagpur Bench of the Bombay High Court recently held that in the absence of ˜skin-to-skin contact,' groping a child's breast would not amount to the serious offense of ˜sexual assault' under section 7 of Protection of Children from Sexual Offences (POCSO) Act but shall be considered as ˜molestation' under the Indian Penal Code (IPC).
       
    • As per this observation, the Nagpur Bench, which consisted of Justice Pushpa Ganediwala, modified the order of the Sessions Court, which held the accused, a 39-year-old man, guilty of sexual assault for groping a 12-year-old (at the time the offense was committed, i.e., in 2016) girl and removing her salwar. Ragde had, in the pretext of giving the child guava, taken her to his house, where he proceeded to grope and attempted to disrobe her.
       
    • The accused had been charged with sections 342 (wrongful confinement), 354 (outraging the modesty of a woman), and 363 (kidnapping) of the IPC, and section 8 of the POCSO Act. The Sessions Court punished the accused according to section 8 of the POCSO Act, which attracts minimum imprisonment for three years.
       
    • While modifying the order, the Nagpur Bench held the man guilty under sections 342 and 354 of the IPC and acquitted him under section 8 of the POCSO Act. The Court stated that considering the stringent nature of the punishment provided under POCSO for the offense of sexual assault, stricter proof, and serious allegations are required.
    • Since the act of pressing the child's breast lacks any specific details regarding whether her top was removed or whether the man inserted his hand inside the top to grope her, it would not come under the ambit of sexual assault as defined under POCSO.

      Section 7. Sexual assault under POCSO Act
      Whoever with sexual intent touches the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
      
      Question for Consideration
      • Whether the ˜pressing of breast' and ˜attempt to remove salwar' would fall within the definition of ˜sexual assault' as defined under Section 7 and punishable under Section 8 of the POCSO Act?

        Why is the Judgment Problematic?
        • The sole justification given for the judgment is the lack of ˜stricter proof' and ˜serious allegations.' The Court has applied the principle of proportionality, which entails the imposition of a punishment proportional to the gravity of the offense committed. This justification, thus, deems the act of pressing the breast of a 12-year-old child not grave enough to call it sexual assault.
           
        • The POCSO Act casts a more significant burden on the accused than on the prosecution, making it protective and beneficial legislation. It is expected to be interpreted in such a manner that protects the interest of children. Model Guidelines issued by the Ministry of Women and Child Development under section 39 of the Act state that the Act recognizes almost every known form of sexual abuse against children as punishable.
           
        • Therefore, it does not matter if the groping had been done with or without the clothes. Such an interpretation contradicts the purpose of the legislation.
           
        • The definition of sexual assault under the Act is quite vivid and unambiguous. The essentials of section 7 have unquestionably been satisfied in the present case.
          Supreme Court's stay order on the Judgment[9]
           
        • Unsurprisingly, the judgment has been challenged in the Supreme Court by various bodies. The Youth Bar Association of India has filed an appeal which states that the Single Judge's observations are ˜unwarranted' and that the reasoning provided, i.e., there was no physical contact since there was no skin-to-skin contact, is dastardly.
           
        • The National Commission for Protection of Child Rights (NCPCR) has approached Maharashtra's Government to file an urgent appeal against the judgment.
           
        • As a result, the Supreme Court has stayed the acquittal of the accused under section 8 of the POCSO Act. A Bench head passed the order by the Chief Justice of India on the Attorney General's recommendation, KK Venugopal, who stated that the judgment likely sets a dangerous precedent.

          • The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ˜sexual assault'.
             
          • That, a literal interpretation has been allocated to the term ˜physical contact' with regard to the first two parts of the provisions by minimizing its scope to ˜skin-to-skin contact,' thereby reducing the ambit of sexual assault.
             
  2. Libnus v. State of Maharashtra [10]
    Facts in brief:
    • Informant i.e. the mother of the prosecutrix had gone to her duty and on returning back home she saw the presence of appellant/accused in her house molesting her minor daughter who was aged about 5 years.
       
    • She further stated that when she left her house, her two daughters, aged around 3 and 5 years were alone in the house and her husband was out of station. She also stated that the moment she saw a person in her house holding hands of her elder daughter, she shouted, as a result of which her neighbours gathered there.
       
    • Thereafter, the accused ran away. The informant testified that her daughter informed her that the Accused removed his penis from the pants and asked her to come to the bed for sleeping. The informant also noticed that the zip of the pant of the Accused was open.
       
    • A case was registered against the Accused for the offences punishable u/s 354-A (1) (i) and 448 of the Indian Penal Code, 1860 and Sections 8, 10 and 12 r/w Section 9(m) and 1
       
    • 1(i) of the Protection of Children from Sexual Offences Act, 2012.
       
    • The Trial Court found the Accused guilty and convicted him accordingly. The Nagpur bench altered the conviction of the appellant who was accused of sexually assaulting a minor child by partly quashing his conviction for the offence of sexual assault and aggravated sexual assault punishable under Sections 8 and 10 of POCSO Act, respectively.
       
    Issue involved:
    • The key issue before the court was whether holding hand of child and taking penis out in front of her would fall within the definition of sexual assault u/s 7 of the POCSO Act?

      Analysis and Decision
      • Bench noted that the appellant/accused was convicted by the trial court for the commission of offence of ˜aggravated sexual assault', punishable under Section 10 of POCSO Act.

        However, to decide whether the alleged act of appellant/accused would fit into the definition of ˜aggravated sexual assault', Court looked into the definition of ˜sexual assault', according to which the offence involved the following ingredients:
        1. Act must have been committed with sexual intention.
        2. Act involves touching the vagina, penis, anus, or breast of the child, or
          makes the child touch the vagina, penis, anus or breast of such person or any other person, or
          does any other act with sexual intent which involves physical contact without penetration.

          • Further, the Court added that the acts of ˜holding the hands of the prosecutrix', or ˜opened zip of the pant' as had been allegedly witnessed by PW-1, which in the opinion of this Court did not fit in the definition of ˜sexual assault'.
             
          • Considering the nature of the offence and the sentence prescribed, Court opined that the aforesaid acts were not sufficient for fixing the criminal liability on the appellant/accused of the alleged offence of ˜aggravated sexual assault'.
             
          • Bench expressed that the prosecution could establish that the appellant/accused entered into the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined under Section 11 of the POCSO Act.
             
          • Hence, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was maintained. The criminal appeal was partly allowed and the conviction of the appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO Act, was quashed and set aside.
             
          • The Court in this case applied the principle of ejusdem generis to interpret the ˜other acts' under section 7 of the POCSO Act and held that ˜holding hands' is an act of different nature than those mentioned in section 7, hence it is not included under the definition of sexual assault, but it has not given any reason for its finding.
             
Conclusion
The principal objectives of the Protection of Children from Sexual Offences Act, 2012 are to ˜protect' children from offences of sexual assault, sexual harassment, pornography, to secure the best interests of the child, and to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, etc.

The two judgments discussed above, unfortunately, do not uphold the objectives of the POCSO Act. Holding a child's hand with the zip open, removing of penis from the pants, asking the child to come to the bed for sleeping, and pressing of breasts not by skin to skin, etc., are all ingredients of sexual assault but the Bombay High Court by not holding them to fall in the category of sexual assault has paved the way for the perpetrators of crime to use the two judgments as a shield for their crimes. The Supreme Court has already stepped in to prevent the abuse of law by staying one of the judgments.

The Kerala High Court had also advised the courts to treat sexual assault against children strictly and adopt an interpretation that is in consonance with the objective of the law, that is, to protect children against sexual abuse and exploitation.

Further, awarding a less stringent punishment by converting a conviction under POCSO to a case of molestation under section 354 of the Indian Penal Code is an erroneous interpretation too. It defeats the purpose of enacting the POCSO law. The Nagpur Bench of the Bombay High Court has failed to appreciate that the POCSO Act is a special law enacted to deal with cases of sexual assault against minors.

End-Notes:
  1. National Commission for Protection of Child Rights, available at: https://ncpcr.gov.in/showfile.php?lid=1514
  2. The Protection of Children from Sexual Offences Bill, 2011, available at: https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-bill-2011
  3. The Protection of Children from Sexual Offences (Amendment) Bill, 2019, available at: https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-amendment-bill-2019-979
  4. New rules under amended POCSO Act, available at: https://www.hindustantimes.com/india-news/new-rules-under-amended-pocso-act-survivors-may-get-quick-compensation/story-aTEYiO22kJtCHJmyyYyDRJ.html
  5. Zero tolerance on child porn: Government notifies new POCSO rules, available at: https://timesofindia.indiatimes.com/india/zero-tolerance-on-child-porn-govt-notifies-new-pocso-rules/articleshow/74602987.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
  6. New POCSO Rules Comes Into Force, available at: https://www.livelaw.in/news-updates/pocso-rules-2020-comes-into-force-153763
  7. provision for compensation to the victim child under new rules, available at: https://www.vakilno1.com/legal-news/compensation-to-be-paid-within-30-days-as-per-new-pocso-rules.html
  8. 2021 SCC OnLine Bom 72
  9. Attorney General for India v. Satish, 2021 SCC OnLine SC 42
  10. 2021 SCC OnLine Bom 66

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