Evolution of POCSO

• The Constitution of India has incorporated several provisions to protect the rights of children and India has also been a signatory to landmark international instruments.
• However, India lacked any dedicated provision against child sexual abuse.
• Cases would be tried under different provisions of the Indian Penal Code, which was found to be ill-equipped.
• In the 1990s, a child sexual abuse racket was busted in Goa, following which the state government enacted a law to promote child rights in 2003.
• Also, the Special Expert Committee under Justice VR Krishna Iyer presented a draft code for child rights in India – the Children’s Code Bill, 2000.
• These two initiatives established the basis for dedicated legislation against child sexual abuse.
• In 2005, the Department of Women and Child Development prepared a draft bill to address different offences targeted against children.
• Contrary to the general perception then, the overall percentage of boys reporting experiencing sexual abuse was much higher than that of girls.
• In September 2010, the Ministry of WCD prepared a draft Protection of Children from Sexual Offences Bill, 2010.
• This after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012.

Features of the Act   

• Gender neutrality: The Act is gender neutral and regards the best interests and welfare of the child. The Act calls for mandatory reporting of sexual offences. A false complaint with intent to defame a person is punishable under the Act.
• Definition of Child: The Act defines a child as any person below eighteen years of age.
• Definitions of sexual abuses: It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
• Prevents child trafficking: People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
• Preventing re-victimization of child: Adequate provisions are made to avoid re-victimization of the Child at the hands of the judicial system.
• Sensitization of Police: The Act assigns a policeman in the role of child protector during the investigation process.
• Child friendly investigation: The Act stipulates that such steps must be taken which makes the investigation process as child-friendly as possible.
• Speedy disposal: The Act provides for the establishment of Special Courts for the trial of such offences and stipulates that the case is disposed of within one year from the date of reporting of the offence.

Rationale behind the legislation

• Multiple facets of crime: New forms of child abuse like online bullying, harassment and Child Pornography have emerged to a greater extent.
• Exception handling: As per the last available data from the National Crime Records Bureau of child rape cases came up before the courts under the POCSO Act read with Indian Penal Code Section 376.
• Larger conviction: Less than three per cent cases ended in convictions, pointing to the need for better access to justice for all, and not just more stringent conviction in a small percentage of cases.
• Deterrence against crime: There is the belief that harsher punishments will deter people from committing child rape.
• Zero-tolerance: Lastly, the disgust for the crime makes the perpetrator ‘deserving’ of death penalty.

Issues with the Law

• Recurrence of such crime: In the context of child rape, many preventive measures and policies do have a definitive impact on preventing child rape.
• Lower conviction: The conviction rates are low under the Protection of Children from Sexual Offences Act, 2012.
• Investigation bottlenecks: There is lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers.
• Protection bottlenecks: Inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures are some other concerns.
• Under-reporting: A large proportion of perpetrators are family members or those close to or known to the family. This results in massive underreporting of such crimes.
• Protection of convicts: This concern will only intensify with death penalty, as the child’s family often settles a case of known person preventing him to the gallows.
• Vulnerability: The arbitrariness of the death penalty in India also arises from the discriminatory impact of the choice of what constitutes ‘rarest of rare’.
• Delay of trials: The Kathua Rape case took 16 months for the main accused to be convicted whereas the POCSO Act clearly mentions that the entire trial and conviction process has to be done in one year.
• Communal Politicization:  Considering rapes on communal angles is another challenge. The Unnao rape case and Kathua rape case are some of the examples.

Study of POCSO implementation

• The analysis, titled ‘A Decade of POCSO’, was carried out by the Justice, Access and Lowering Delays in India (JALDI) Initiative.
• It was held in collaboration with the Data Evidence for Justice Reform (DE JURE) program at the World Bank.
• It analysed a total of 230,730 cases from 486 districts spanning 28 states and Union Territories, from 2012 to February 2021.
• Case laws, policy interventions and case metadata was collected from the eCourts, the digital platform which gives information on pending cases, court orders, etc.

Key findings on crimes against children

• Low conviction rate: The analysis has found that 43.44% of trials under POCSO end in acquittals while only 14.03% end in convictions. For every one conviction in a POCSO case, there are three acquittals.
• Accused were close kin: Out of 138 judgements looked at in detail by the study, only in 6% of the cases were the accused people strangers to the victim.

Quality of justice under POCSO

• Huge delay: The study has found on average, it takes 509.78 days for a POCSO case to be disposed of – whereas it has been stipulated under the Act that such cases need to be disposed of within a year.
• High pendency: Though the pendency of POCSO cases was increasing gradually over the years, there was a sharp increase in the number of pending cases between 2019 and 2020, that could be attributed to the COVID-19 pandemic.
• Frequent transfer of cases: A total of 22.76% of cases were disposed of by virtue of transfers from one court to another, and one-fifth of the cases in this dataset ended in transfers. Since POCSO cases are supposed to be tried by the Special Court.

Gaps in implementation

• Support persons are not being appointed in most cases: The Supreme Court had also noted that in 96% of cases, a support person was not provided to the victim.
• POCSO courts have not been designated in all districts: As of 2022, 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme.
• There is a lack of Special Public Prosecutors: They should be appointed specifically to handle POCSO cases, and even when they are appointed they are often employed for non-POCSO cases.

Looking ahead

• The social menace of child rape requires sustained planning, engagement, and investment of resources by the government.
• The need of the hour is to prioritise prevention activities against abuse, creating safe (physical and online) environments for children.
• Developing a comprehensive outreach system to engage parents, schools, communities, NGOs partners and local governments as well as police and lawyers is needed.
• This will ensure better implementation of the legal framework, policies, national strategies and standards.

The POCSO (Amendment) Act, 2019 (ADDITIONAL INFORMATION)

The amendment act has a number of provisions to safeguard children from offences of sexual assault and sexual harassment.

• The act aims at making offences against children gender-neutral.
• The definition of ‘Sexual Assault’ has been extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for the purpose of penetrative sexual assault.
• The Act is critical because it clearly defines child pornography and makes it punishable.

• The Act 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. 

• The amendments also penalize the transmitting of pornographic material to children and propose to synchronise it with the Information Technology Act. 

• The Act seeks to enhance punishment for sexual offences against children, with a provision of death penalty.

• According to the amendment act, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.

• In case of aggravated penetrative sexual assault, the act increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.

• To curb child pornography, the Act provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and fine.
• However, in the event of a second or subsequent conviction, the punishment would be up to seven years and fine.

The government has also sanctioned over one thousand fast track courts for speedy disposal of pending cases under POCSO.

• The new act defines child pornography as: “any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image (that is) indistinguishable from an actual child.”

• Additionally, “an image created, adapted, modified” to depict a child would also be treated as child pornography. This would also include cartoons, animated pictures, etc.

• The Cabinet has also enhanced the fine for possessing child porn but not deleting or reporting it to 5,000 from the earlier proposal of Rs. 1,000. If a person stores such content for distributing it further, except for when presenting it in court as evidence, he could face a punishment of upto three years.

• Henceforth, there will be zero tolerance for child pornography. 

• Some of these provisions were also contained in the Protection of Children from Sexual Offences (POCSO) Amendment Act, 2019, but lapsed.

Significance:

• So far, there had been no definition of child pornography in Indian law.
• It was a big lacuna which could be used to evade the law. 
• Neither Section 67 of the IT Act nor Section 293 of the Indian Penal Code defines child pornography. 
• Its definition derived from what constitutes pornography, which is defined as “any material which is lascivious or appeals to the prurient interests or if its effect is such as to tend to deprave or corrupt the minds of those who are likely to see, read and hear the same.” 
• “Child porn” has now been redefined to ensure that the punishment can be implemented properly. 
• The amended law will also apply to pornographic content where adults or young adults pretending to be children.