30 The Protection of Children from Sexual Offences (POSCO) Act, 2012

Varalaxmi Moganty

Table of Contents:

Learning outcomes
Introduction
The Protection Of Children From Sexual Offences Act, 2012
Monitoring the act
Summary

1. Learning outcomes

This chapter aims to make students aware of this act called The Protection of Children from Sexual Offences Act, 2012 which is gaining significance due to the current scenario of offences committed on the children.
By the end of completion of this chapter one will be aware of many types of offences committed to children and legal measures and penal measures against offences committed to children.

2. Introduction:

This is an Act enforced by the Government of India to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. This act came into force also in the back drop of clause (3) of Article 15 of the constitution the State is empowered to make special provisions for children.

Further the introductory part details the initiatives for the enforcement of this act. India is obligated as a State party to the Convention on the Rights of the Child, 1989 and to undertake all appropriate national, bilateral and multilateral measures to prevent against the inducement or coercion of a child to engage in any unlawful sexual activity; the exploitative use of children in prostitution or other unlawful sexual practices. India needs to take also measures against the exploitative use of children in pornographic performances and materials and Sexual exploitation and sexual abuse of children. Thus this act is enacted by India. We shall now look into the legal provisions for the protection of Chid from sexual offences.

3. The Protection of Children from Sexual Offences Act, 2012

There are 9 chapters that deal with the right of children under The Protection of Children from Sexual Offences Act, 2012 and 46 sections in this act

Chapter I: Preliminary:

According to the preliminary part of the acts this Act may be called the Protection of Children from Sexual Offences Act, 2012 and it extends to the whole of India, except the State of Jammu and Kashmir.

Definitions:

Section 2 provides definitions. Some major definitions are given below:

According to the section 2 of the act, “aggravated penetrative sexual assault” has the same meaning as assigned to it in section 5; “Aggravated sexual assault” has the same meaning as assigned to it in section 9. And “armed forces or security forces” means armed forces of the Union or security forces or police forces, as specified in the Schedule and “Child” means any person below the age of eighteen years. “Domestic relationship” has the same meaning as assigned to it in clause (f) of section 2 of the Protection of Women from Domestic Violence Act, 2005 as per the act. Further “Penetrative sexual assault” has the same meaning as assigned to it in section 3 and “sexual assault” has the same meaning as assigned to it in section 7 of this act. . Further “sexual harassment” has the same meaning as assigned to it in section 11 and “Special Court” means a court designated as such under section 28.

Chapter II: Sexual Offences against Children and punishment:

Five types of assaults included in the act are:

Penetrative Sexual Assault And Punishment (Section 3 )
Aggravated Penetrative Sexual Assault (Section 5)
Sexual Assault(Section 7)
Aggravated Sexual Assault (Section 9)
Sexual Harassment (Section 11).

Punishments:

Penetrative Sexual Assault and Punishment – Section 4 deals with this offence. Punishment for this offence is not less than 7 years; may extend to life imprisonment and fine.
Aggravated Penetrative Sexual Assault: Section 6 deals with this offence punishment for this offence is rigorous imprisonment not less than 10 years; may extend to life imprisonment and fine.
Sexual Assault: Section 8 deals with this offence. Punishment for this offence is imprisonment for 3 years to 5 years and fine.
Aggravated Sexual Assault: Punishment Section 10 deals with this offence. Punishment for this offence is 5 years and extendable to 7 years imprisonment and fine.
Sexual Harassment: Section 12 deals with this offence. Punishment for this is for a term; extendable to 3 years imprisonment and fine.

Chapter III: Using the child for Pornographic Purposes and punishment:

Section 13 of the act reads about the use of child for pornographic purpose:

“Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes—

Representation of the sexual organs of a child;
Usage of a child engaged in real or simulated sexual acts (with or without penetration);
The indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes”.

Punishment:

According to the Section 15 of the Act the punishment for using child for pornographic purpose is imprisonment that may extend from five years to seven years and fine. For the offence using the child with offences said Section 3 is imprisonment for not less than 10 years and extendable to life imprisonment and fine. . For the offence using the child with offences said Section 5 is rigorous imprisonment for life and fine. And, for the offence using the child with offences said Section 7 is imprisonment for not less than 6 years and extendable to 8 years and fine. And, for the offence using the child with offences said Section 9 is imprisonment for not less than 8 years and extendable to 10years and fine.

Chapter IV: Abetment of and Attempt to Commit an Offence

Section 15 explains abetment by a person is to instigate to do an offence; to engage persons to do offence; and intentionally and illegally aids to do an offence to the person [child]. Explanation given in the act is acts “like transport of a child by a threat or force” as offences under this section 15.

Punishment:

Punishment for abetment is imprisonment for a term that may extend to one-half of the imprisonment for life and fine.

Chapter V: Procedures for Reporting of Cases:

On apprehending this offence happened or likely to happen by any person, that person can report the matter to Special Juvenile Police Unit or the local police under the Section 19 of the act.

Provision for care of child:

Section 19 (5) of the Act , Chapter V provides for care and protection during the process of reporting when the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty four hours of the report, as may be prescribed.

Section 20 obligates media, Studio and photographic persons to report to local police or special juvenile police unit about the cases under this chapter: sexually exploitative; child pornography; obscene representation of child.

Punishment for false compliant or failure to report:

Section 22 deals with this. Accordingly failure to report or giving a false complaint by any person is punishable with imprisonment to six month or fine or both. However if a child does such complaint or gives a false complaint then child is not punishable under the law.

Chapter VI: Procedure for recording Statement of the child:

Section 24 details the procedure. Some important features are:

The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector.
The police officer while recording the statement of the child shall not be in uniform.
The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child comes in to contact in any way with the accused.

Additional provisions regarding statement to be recorded:

Section 26 of the Act details these provisions:

The Magistrate or the police officer, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.
Wherever necessary, the Magistrate or the police officer may take the assistance of a translator or an interpreter, while recording the statement of the child.
The Magistrate or the police officer, In the case of a child having a mental or physical disability, may seek the assistance of a special educator or any person familiar with the manner of communication of the child. This section also provides for payment or such fees as may be prescribed, to record the statement of the child.
Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the statement of the child is also recorded by audio-video electronic means.

Medical examination of a child:

Section 27 insists on the medical examination of the child to be conducted under Section 164 A of the Code of Criminal Procedure. And such examination must be conducted by a woman doctor in case the victim is a girl child; also it should be conducted in the presence of parent or any other person in whom the child has confidence. If the parent is not present another person nominated by medical institution should be present during, medical examination of the child.

Chapter VII: Special Court

Sections 28-32 provide for requisite provisions. Under Section 28 of the Act the “chief justice of High court” “designates for each district a court of Session to be a special court to try offences under the Act”. Accordingly, Special courts provide for speedy trials. Special public prosecutors are also provided for this purpose.

Presumption of culpable mental state:

Section 30 deals with this aspect. It reads:

“(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”.

Under Section 32 Special Public Prosecutors for every special court. The prosecutors are those who had practice not less than seven years as an advocate. And he will be deemed to public prosecutor according to the Code of Criminal Procedure, 1973.

Chapter VIII: Procedure and Powers of special Courts and Recording of Evidence:

Legal provisions in Section 33 – 38 deal with this procedure and powers of special courts and procedure for recording evidence. As per Section 33 that deals with the procedure and powers of the court significant aspects to be dealt are:

The Special Public Prosecutor or counsel while recording shall communicate the questions which the child is going to put in the process of cross-examining or re-examining in the Special court.
The Special Court shall ensure that the identity of the child is not disclosed at any time; but Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
The Special Court shall 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
The child may be allowed to take frequent breaks
The Special Court shall ensure that the child is not called repeatedly to testify in the court.
The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial

Section 36 directs the Special Court to ensure the child that the child is not exposed to the accused during the time of recording of evidence from the child.

As per Section 35 Special court also provides for fixed period for recording of evidence of child. Thus disposal of case is to be done within a period of thirty days.

As per Section 38 if a child has a mental or physical disability, the Special Court may take the assistance of a special educator or any other person who can understand the language of child and while recording the words of child. This section also allows payment payable to the interpreter.

Chapter IX: Miscellaneous

This chapter IX titled miscellaneous heading includes aspect namely:

Guidelines for child to take assistance of experts, etc.
Right of child to take assistance of legal practitioner
Public awareness about Act
Monitoring of implementation Act
Power to make rules
Power to remove difficulties

Guidelines for child to take assistance of experts, etc.

Section 39 insists the state government to prepare guidelines with the use of non-governmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child

Right of child to take assistance of legal practitioner:

Under Section 41 legal assistance, in turn following the section 301 of code of criminal procedure, 1973, is provided when the parent or guardian of the child cannot afford legal counsel.

Public Awareness about Act:

Section 43 of the Act insists the Central Government or State Government to take steps to give wide publicity through television; radio and print media of the provisions of this act. This section also states that officers of the Central Government or State Government are provided with training on matters to be imparted to public.

Monitoring of implementation of Act:

Under Section 44 of the Act National Commission for Protection of Child Rights and State Commission for protection of Child Rights constituted under Commissions for Child Rights Act, 2005 are the institutions assigned function to monitor the implementation of the Act.

Power to Make Rules:

It is the Central Government that has the power to make rules regarding aspects such as care and medical emergency; protection of child and other aspects as fee payable to translator or special educator during the process etc.,

Power to remove difficulties:

Section 46 provides for this. Accordingly any provision which is inconsistent with the provisions of the Act may be removed through Central Government notification. And such order must be laid down before parliament.

5. Summary:

This act is a comprehensive act that provides with necessary provisions for the child victim and penal measures to the offender. It also covered areas of public awareness to prevent the offense and also to create social responsibility to report the case and to prevent the crime rate. The POSCO Act 2012 deals with a variety of offenses under which an accused can be punished. It defines a child as a person under age of 18 years.

This act is “gender-neutral” and provides for child victims with many provisions for special courts; medical examination and child –friendly procedure and other significant provisions.

However the following are some critical remarks:

It encompasses the biological age of the child and silent on the mental age considerations. A recent case in SC has been filed where a women of biological age 38yrs but mental age 6 yrs was raped. The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.” SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.

The Act has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18. The 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years.

There is a controversy between the definition of the child defined by the POCSO Act, 2012 and Juvenile Justice (Care and Protection) Act, 2015, where the former defines a child as one who is below18 years of age the latter considers 16-18 also under heinous crimes.

you can view video on The Protection of Children from Sexual Offences (POSCO) Act, 2012

Reference

“Good act, bad provision”. The Hindu. 26 May 2012. Retrieved 9 September 2014.
https://en.wikipedia.org/wiki/Child_sexual_abuse_laws_in_India.