The POSCO Act (hereinafter alluded to as ‘the Act’) was authorized on 14 November 2012 all over India, except the territory of Jammu and Kashmir. The Act was sanctioned to shield children from offences of sexual assault, sexual harassment and pornography and to provide children with a cordial framework for the trial of these offences. Data from a study attempted by the ministry of women and child development on ‘children abuse’ in 2007 had uncovered that 53.22% of children had confronted at least one types of sexual maltreatment.
The expanding occurrence of sexual offences against children must be tended to through different legislation, as the Indian Penal Code, did not specifically accommodate sexual offences against children, especially young boys. It perceived restricted types of sexual savagery against young girls and considered all physical sexual acts other than assault as adding up to “outraging the modesty of women” and which was culpable with the greatest term of two years and additionally fine.
Forms of sexual abuse
The Act characterizes various types of sexual maltreatment which incorporates penetrative and non-penetrative assault. It additionally includes inappropriate behaviour, erotic entertainment, and so on. Under certain particular section, POSCO states a sexual assault is to be considered “aggravated if the abused child is intellectually sick or when the maltreatment is done by an individual from the military or security powers or a local official or an individual in a place of trust or authority of the child, similar to a relative, cop, educator, or specialist or an individual administration or staff of a medical clinic — regardless of whether government or private.”
The Act likewise makes it obligatory to report such cases. It makes it the legal obligation of an individual mindful of the offence to report the sexual maltreatment. If he neglects to do as such, the individual can be punished with a half year’s detainment/ imprisonment or fine. The Act further expresses that the proof of the children ought to be recorded within a time of thirty days. The special court taking perception of the issue ought to have the option to finish the trial inside the time of one year from the date of taking cognizance of the maltreatment. It gives that the special court procedures ought to be recorded in-camera and the trial should occur within the sight of guardians and some other individual in whom the child has trust or certainty.[i]
The Act accommodates punishment against false objections or false data. It portrays exacting activity against the guilty party as per the gravity of the offence. It endorses thorough detainment for a term which will not be under ten years yet which may reach out to imprisonment forever and fine as punishment for aggravated penetrative Assault. It likewise recommends punishment to the individuals who traffic children for sexual purposes.
Scenario before the POSCO Act-
Before the POSCO Act, the offences against children were supervised under three specific Sections of IPC, which are-
Section- 376, mentioning the punishments for rape.
Section 354, which talks about Assault of criminal force to woman with intent to outrage her modesty
Section 377, which highlights over the unnatural offences. From 2001-2013, Maharashtra was recorded consisting of the highest number of child rape cases in India.[ii]
- Ghanashyam Misra v. The State on 27 November 1956[iii]
Way back 1956, the Orissa High Court, recognizing that the offence was committed by an individual in a place of trust or authority for the child, improved the sentence of Ghanashyam Misra, a teacher who assaulted a 10-year-old girl in the school premises.
The judgment peruses – “The circumstances are the entirety of an aggravating nature. The victim is a little girl of ten years, and the guilty party a grown-up of 39 years… He took advantage of his position by inducing her to come inside the Schoolroom and committed such a terrible demonstration, the outcome of which might be the complete ruining of life of the girl.’ Not just did the court improve the sentence to seven years yet additionally order the accused to pay compensation to the father and the child.
- Sakshi v. Union of India[iv]
This was the case filed by NGO called ‘Sakshi’ raising worried about the emotional increment of sexual savagery against women and children and implementation of the provisions of IPC in particular sections 377,375. 376 and 354. The petitioner raises the issue of confining rape cases only two penile-vaginal penetration which was currently been amended by the 2013 criminal law amended as it was violative of Article 21 of the constitution. The number of factual information has uncovered that children are regularly abused in a way other than the penile-vaginal penetration it is frequently employing penile/anal, penetration, penile/oral penetration, finger/vaginal penetration and object/vaginal penetration, likewise putting these cases inside the Ambit of segment 377 would be profoundly unjust petitioner had emphasized article 15 subsection 3 of the constitution which provides for special provisions for women and children with necessarily suggests ‘adequate provisions’.
- Bachpan Bachao Andolan v. Association of India[v]
A PIL was filed in the Supreme Court in the wake of genuine infringement of children’s rights. The petition was filed explicitly to discourage child trafficking from all over India. Children are frequently sexually abused at these spots which are a violation of Juvenile Justice and other international treaties and covenants.
Punishment Prescribed in the POSCO Act
- Penetrative sexual assault its minimum punishment is 7 years of life and maximum is life imprisonment and fine.
- Aggravated penetrative sexual assault its minimum punishment is 10 years and the maximum punishment is (rigorous imprisonment) life imprisonment and fine.
- Sexual assault minimum punishment is 3 years and the maximum punishment is 5 years.
- Aggravated sexual assault minimum punishment is 5 years and the maximum punishment is 7 years.
- Sexual harassment maximum punishment is 3 years.
Utilization of Children for pornographic purposes
- Penetrative sexual assault for pornographic purposes and its minimum punishment is 10 years and the maximum punishment is 7 years life imprisonment.
- Aggravated penetrative sexual assault for pornographic purposes and its punishment is rigorous life imprisonment.
- Sexual assault for pornographic purposes its minimum punishment is 6 years and the maximum punishment is 8 years.
- Aggravated sexual assault for explicit purposes minimum punishment is 10 years and the maximum punishment is 10 years.
- Storage of pornographic materials including children includes the punishment of 3 years and/or fine.
- If abetment offence is committed, punishment for abetment is the same as that provided for the offence.[vi]
Loopholes in the Act
Upon a primer perusing the POSCO Act may qualify as the perfect enactment to shield children from sexual offences. Be that as it may, there are sure applied issues in it.
Firstly, the Act doesn’t leave any chance of consent given by people under 18. This would imply that if a seventeen-year-old boy or girl a nineteen-year-old had sexual accomplice, the accomplice would be at risk to be reserved under the provision of the POSCO Act. The Act likewise doesn’t give any lucidity on what happens when two minors take part in any sort of sexual activity. They are the two children in need of care and protection (CNCP) and children in conflict with the law (CCLs). By and by, however, the police pronounce young girl to be CNCPs and the young boy to be CCLs.
Secondly, another issue, which was looked at by the victim, is that of demonstrating the age of the child. Since the POSCO Act is silent on what reports are to be considered for deciding the age of the child Victim. This standard recognizes the birth authentication certificate the matriculation certificate, nonetheless, children who are only ready to produce other documents – even an authoritative or legal record, for example, a passport – need to experience a bone ossification test. This test can give an unpleasant gauge of the age of the child, best case scenario. There should be a reasonable provision in the POSCO Act that sets down what records ought to be considered for demonstrating the age of the children, and whether the opportunity to be vindicated ought to be given to the children if the ossification test can’t give a careful evaluation.
Thirdly, like the law of rape under the Indian Penal Code. The pronoun utilized for the accused is “he”, in this manner, once more; just a male can be reserved for the offences under the relevant provision of the POSCO Act. However, in contrast to rape, a victim under the POSCO Act can be any children regardless of the sexual orientation, the accused still must be a male and females are again given a defensive shield, for no good reason. Saying that females don’t expose children to forceful sexual assault is false.
These are many examples from of the unexplained sex predisposition in the laws identifying with sex in India. Likewise, since the POSCO Act just investigates the age perspective, an adolescent young girl underneath the age of 18 who encounters coercive sexual harassment may later have the boy booked under the Indian Penal Code. However, the other way around won’t be valid because of the one-sided definition. A girl who commits a like offence can be reserved distinctly for rape under the POSCO Act, the punishment that being substantially less contrasted with rape under the Indian Penal Code.
The protection of children from sexual offences amendment Act 2019, was presented in the Rajya Sabha vide bill number xxii of 2019 the POSCO Act is exceptionally solid legislation however it requests for more religious implementation according to National Crime Records Bureau, a total of 34,449. After 2016 there was a flood in the commission of crimes related to the child. In which, 15 required a prompt need to the punishment under POSCO Act increasingly severe to that it Act as deterrence for the culprits.
India follows the reformative hypothesis of punishment where the state trusts in remoulding the inmates so when they leave, they become a transformed being and be a resource/ asset for society yet we can’t preclude the force from claiming deterrence. Deterrence lays fear in the general public and sanitizes against the repercussions which are the explanation rigid punishment and are given for the child sex abuse. The altered act mainly contains a provision for expanded punishment[vii] .
Changes made in the provision of POSCO (Amendment) Bill, 2019-
New clause – Section (2)(1)(da) was added which talks about “child pornography” which means a visible portrait of conducting sexual things directly, by involving a child, which includes all sorts of photographs, videos, digital or computer-generated indistinguishable from a child, and image fabricated or modified, but appear to depict a child.[viii]
Section 4(1), which talks about punishment for committing penetrative sexual assault, has increased up to ten years from seven years.[ix]
Section 4(2), was inserted in 2019 amendment, which explains that “Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine.” Along with Section 4(3) which came up with “The fine imposed under sub-section (1), which shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”[x]
Section 6(1), which is totally changed and now explains that “Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, and can be extended up to imprisonment for life, and shall also be liable to fine, or with death.” Further, Section 6(2), which says that “the fine imposed under sub-section (1) should be just and reasonable and be paid to the victim to meet the medical expenses and rehabilitation of the victim.”[xi]
Section 9(v) was included, which adds that “whoever persuades, includes, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity.”[xii]
Section 14, which was substituted to 14(1)-“Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.” Further, Section 14(2)- “Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in Section 3 or Section 5 or Section 7 or Section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under Section 4, Section 6, Section 8 and Section 10, respectively, in addition to the punishment provided in sub-section (1).”[xiii]
Section 15, which was also fully substituted to Section 15(1)- “Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, to share or transmit child pornography, shall be liable to fine, not less than five thousand rupees, and in the event of a second or subsequent offence, with fine shall not be less than ten thousand rupees.” Section 15(2) – “Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for reporting, as may be prescribed, or for use as evidence in Court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.”[xiv]
Section 15(3) – “Any person who stores or possesses pornographic material in any form involving a child for the commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.”[xv]
Section 42, which replaced “376-E or Section 509 of the Indian Penal Code”, and added, “376-E, Section 509of the Indian Penal Code or Section 67B of the Information Technology Act, 2000.”[xvi]
Inserted sub-section 2(a) in Section 45– “The manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority under sub-section (1) of Section 15; (aa) the manner of reporting about pornographic material in any form involving a child under sub-section (2) of Section 15.”[xvii]
- In Nishu v. Commissioner of Police, Delhi and Ors.,[xviii]
Facts- A minor child was kidnapped by a group of nine persons on 25-10-2013, who was detained up to 8-11-2013. The accused persons had repeatedly raped her and among them, one of the accused naming Pradeep was a constable in Haryana Police. There was so much insincerity practised in this act, as after the child got recovered, her medical examination was done, which was neither registered nor an FIR was filed against it under section 376D of the Indian Penal Code or the provisions of the POSCO Act.
Held- After going through the facts of the case, the court held that no order or direction was justified as the case has been registered by the Haryana Police and was investigated by the authorities of the State of Haryana and also found that it would be inappropriate to exercise it under Article 32 of the Constitution as the charge sheet was filed against all the nine accused.
- In Avinash v. State of Karnataka,[xix]
Facts- The appellant kidnapped the victim during night hours and then committed an act of sexual assault and took her to Bangalore and other places and there committed an offence of sexual intercourse with her. A complaint was filed the next day under Section 366 of IPC and Section 4 of the POSCO Act.
Held- The High Court held that the matter can only be judged under POSCO Act only after suspecting the age of the victim.
- Ms Eera (Through Dr Manjula Krippendrof) v. State (Govt. of NCT of Delhi) &Anr[xx]
The Hon’ble Supreme Court has observed due limitation in declining to apply the provisions of the Protection of Children from Sexual Offenses Act to intellectually retard adults whose psychological age might be that of a child. It would have been enticing to give a purposive interpretation to the term ‘child’ under POCSO, which alludes to those underneath 18 years old, and decide that it encompasses those with a ‘mental age’ of an individual beneath 18.
The Court has decided that POCSO is intended to shield children from sexual offences. To extend it to an adult victim dependent on mental age would require assurance of their psychological ability. This would require legal provisions and rules; the legislative body alone can establish them. Judicial conferment of power to trial courts to treat some adult as kids dependent on their mental capacity, in the Bench’s conclusion, do violence to the current law shielding youngsters from sexual offences.
The clear vision towards the revised Act
The punishment for penetrative sexual assault expanded from at least 7 years to at least 20 years and it additionally stretches out to imprisonment for the rest of the existence of that individual.
The Amended Act recommended for the fine imposed on the convict to be just and reasonable and must be paid to the victim to meet the clinical costs and restoration of such casualty. This was a step which was long and the lawmaking body is appreciated for bringing such correction as prior the victim much of the time didn’t have assets to return from the psychological and physical injury and get rehabilitation situations. [xxi]
Situations in penetrative assault and aggravated penetrative assault in the subsections of the specific section have been changed from communal or sectarian savagery to viciousness or during any regular catastrophe or in comparable circumstances. A decent number of cases of children sexual maltreatment are accounted for in the circumstances of common mobs are the viciousness which happens after the quarrel between the two communities and the children underneath 16 become prey to the general public looking for the vengeance in them. This addition further widens the degree by likewise including natural calamity.
Administrating any medication or hormone or any compound substance to children with the intent that such kid accomplishes early sexual maturity has likewise been included in the definition of aggravated assault by including a subsection in Section 9 of the Act.
Amended Act includes punishment even for a kid involved in pornographic purposes, before the punishment fixed by a limit of maximum 5 times, and convicted after that. But now it is raised to at least 5 years. The most extreme punishment was 7 years, which has now turned into the least punishment. [xxii]
The Act punishes for storage of pornographic materials containing child for commercial purposes or the storage or for the negligence in reporting it to designated authority the accused shall be liable for a fine of rupees 5000 and imprisonment which may extend to 3 years and in subsequent reporting officers are fine of rupees 10000 and improvement we shall not be less than 5 years.
Conclusion and Suggestions
Statutes are to be changed when time requests to meet with the pace of present loopholes. None is flawless; there is consistently a space to offer some kind of correction. Protection of children from sexual offences revision act 2019 is a commendable enactment, yet it contains few ground subtleties which the Act overlooked like- Section 2d can be considered as the greatest escape clause in the Act which considers organic or biological age but not the psychological age of the victim. But there are situations where the victim has been influenced by a cerebral paralysis of the biological age of 36-year-old and the psychological age to be 6 to 8 years. So, on the off chance, if a child of such capacity is raped, at that point just the IPC section 375 will be the resort and the POSCO Act won’t come into play.
POSCO Act doesn’t consider adolescents from 16 to 18 years of age as consenting adults. The high court of madras cleared this vagueness and observed obiter dicta that the age of a child ought to be decreased from 18 to 16.
Section 22 of the POSCO Act provides the punishment for false complaint, yet Section 22 subsection 2 excludes a child from the burden of any punishment on lodging a false complaint if we see the ground reality, families just to take revenge from the others falls under this section and cases have been accounted, where family utilized the section to coerce other individual and blackmail cash. Suggestion on this section would be not done with the sub-segment however to include some punishment in it.
A Section 27 of the Act represents the medical assessment of a child in which, subsection 27(2) states that in the situations where the victim is a girl child, a medical assessment is led by a female doctor. This section can contradict with the section 166a of the Indian Penal Code which mandates the government medical official working to analyze the victim without a fail. A conflicting lawful position emerges when a female doctor isn’t accessible the state must guarantee that each government emergency hospital must have at least one female medical officer to manage the instances of such nature.
POSCO Act as per Section 28 provides for special courts in every single district of all the states of India. As per the government, 1023 Special Courts must be set up in all over India. Though it has been just 8 years, since the passing of the demonstration and just 664 courts set up till 30th April 2019. It is an inferred thing to get to the last number at the earliest opportunity to get rid of various cases under the conceivable to get rid of the number of cases under the POSCO Act.
- Indian Penal Code, 1860
- Protection of Children from Sexual Offences, 2012
- The Protection of Children from Sexual Offences (Amendment) Act, 2019
[iii] AIR 1957 Ori78, 1957 CriLj469
[iv] AIR 2004 SC 3566,2004(2) ALD Cri 504
[v] AIR 2011 SC 3361
[xviii] 2014(3) ACR 2516(SC).
- What are the different forms of sexual abuse?
- What are the punishments described in POSCO Act 2012?
- What are the Loop Holes in the POSCO Act 2012?
- What changes did the POSCO (Amendment) Act come up with? Were they necessary?