POCSO Amendment Act 2019: A Step Towards a Safe Future


[This article is authored by Aishwarya Agarwal, Bharati Vidyapeeth's New Law College, Pune]

Development of a country is measured through its GDP, infrastructure, and position in the global market but are these the only parameters to ascertain the growth of the country? No, one of the most important features is the quality of population i.e. the literacy rate, mortality rate, etc. To ascertain the progress of a country it is necessary to focus on the child and youth population of the country i.e. to provide them with basic necessities as well as a peaceful and protected environment to grow. India is home to a large population of which more than 30% comprises children between the age of 0-18 years. [1] Ministry of women and child development with UNICEF conducted a survey in 2007 which showed that out of total respondents 52.94% were boy child as compared to 47.06% who were girl child reporting cases of sexual abuse. [2] To protect children from such inhumane acts the government of India had taken several steps. 
Before the year 2012 protection of child against sexual offences were provided under IPC, Juvenile Justice (Care and Protection of Children) Act 2015 but neither could address the issues of sexual abuse of male child efficiently. The ministry of women and child development addressed the issue by enacting Protection Of Child from Sexual Offence Act 2012 (POCSO) to provide protection to children from sexual offences and establish special courts for trials in such matters. The act was made gender-neutral in order to address the matters of sexual offences against male and female children below the age of 18 years. Until now the act addressed the issues in order to safeguard the rights of children but with time and increasing offences against children the need for even more strict measures arose and the new POCSO amendment act 2019 paved a way to resolve the matter. The amendments prescribed by the Act are as follows. 

Child Pornography
POCSO 2012 did not define child pornography. The term has been defined in the new amendment which provides a large scope for protection against such an offence and a much clear meaning of the same. The POCSO Amendment Act of 2019 defines child pornography as follows:
“Child pornography means any visual depiction of sexually explicit conduct involving a child which include a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child” [3]

Death Penalty
For the first time ‘death penalty’ has been introduced under POCSO by ‘The protection of children from sexual offences amendment act 2019’ for the crimes of aggravated sexual penetrative assault under section 6(1) of the act. Until now the act consisted of the punishments of fine, rigorous imprisonment and imprisonment for life or less.

Gender Neutral
One of the recent developments in the criminal law brought in by THE CRIMINAL LAW AMENDMENT ACT 2018 is that the person convicted of rape of a minor girl below the age of 12 years would be punished with the death penalty. The amendment was much appreciated and was considered to be a progressive step towards the protection of minor girls against such a heinous and inhumane crime, but it gave rise to concerns regarding the discrimination against male survivors of sexual assault for not getting equal justice. POCSO Amendment Act 2019 introduced the death penalty as a punishment for the convicts of aggravated sexual assault against both boys and girls, keeping the act gender-neutral and providing equal justice to the victims of the same offence.

Drugs and Chemicals
A whole new dimension has been provided in the act. With the changing world, new methods of exploitation have been invented and this has exposed the victims and the targeted groups to much more vulnerability. The ministry after the intensive research and deliberation have introduced clause (v) in section 9 of the principal act which says “whoever persuades, induces, 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” [4] and the punishment accordingly.

Punishments
Offence POCSO Act, 2012 POCSO
Amendment Act, 2019
Penetrative Sexual Assault
(Section 4)
(i) Imprisonment of not less than ‘seven years.’
(ii) It may extend to life imprisonment
(iii) And fine
(i) Imprisonment of not less than ‘ten years.’
(ii) It may extend to life imprisonment
(iii) And fine
Note: Clause 4(2) has been inserted specifying separate punishment for the offence held against children below the age of 16 years
Aggravated Sexual Assault
(Section 6)
(i) Rigorous imprisonment not less than ‘ten years.’
(ii) It may extend to life imprisonment
(iii) And fine
(i) Rigorous imprisonment not less than ‘twenty years.’
(ii) It may extend to life imprisonment
(iii) And fine, or
(iv) Death
Using a child for pornographic purposes
(Section 14)
(i) Imprisonment which may extend to ‘five years’ and fine.
(ii) In case of second or subsequent conviction with imprisonment which may extend to ‘seven years’ and fine.
(i) Imprisonment of not less than ‘five years’ and fine.
(ii) In case of second or subsequent conviction with imprisonment which shall not be less than ‘seven years’ and fine.

Court Orders
The recent Unnao, Kathua rape case and increasing child sexual abuse cases drew attention towards the much-needed reforms and measures to be taken in order to protect the vulnerable children from the sexual predators. The honorable Supreme Court of India took cognizance of the same and under a Suo Moto Writ Petition (Crl) No. 1/2019 passed an order on 25/7/19. The order consisted of directions as follows: [5]
  • In the districts where cases under POCSO exceeds 100, a special court should be set up which deals with only POCSO cases.
  • Such courts will be funded by the central government
  • The appointment of the panel should not only be on the basis of qualification but also the sensitivity towards victims of child sexual abuse. The public prosecutor has to match the same standards.
With this, the court directed the states to report the no. of cases, no. of courts, and other relevant information under POSCO in all the states individually and the progress on the given directions. After the assessment of conditions of states individually, regarding the no. of cases under POCSO, the honorable supreme court on 16/12/19 passed an order in which each state was directed to set up special POCSO courts according to the guidelines specified previously and separate criteria were laid down for the state of Uttar Pradesh and West Bengal where the pendency of cases under POCSO was the highest. [6]

Conclusion
Although efforts have been made to protect and help the victims getting justice against sexual offences, it is still a long path down the road to eradicating this heinous crime from society. It is not a crime against an individual but a crime against society and this demands contribution from each and every person on their own level to help eliminate the mentality which gives rise to such offences.

References
[1]  2020. Population Composition. [ebook] Available here 
[2] 2020. Study on Child Abuse: India 2007. [ebook] Available here
[3] The Protection of Children from Sexual Offences (Amendment) Act, 2019. 2 d (a).
[4] The Protection of Children from Sexual Offences Act, 2012. 9.
[5] SUO MOTO WRIT PETITION (CRIMINAL), (2019) SCC (India), Available here
[6] SUO MOTO WRIT PETITION (CRIMINAL), (2019) SCC (India), Available here 

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