Context: The Assam Cabinet has decided to book men who marry minor girls under stringent laws prescribing imprisonment from two years to life, Chief Minister Himanta Biswa Sarma said.
What is POCSO Act?
- The Protection of Children from Sexual Offences Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
- The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
- The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
Offences under the Act
- The New POCSO Act provides for a variety of offences under which an accused can be punished. It recognises forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include:
- Penetrative Sexual Assault: Insertion of penis/object/another body part in child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
- Sexual Assault: When a person touches the child with sexual intent, or makes the child touch them or someone else
- Sexual Harassment: passing sexually coloured remark, sexual gesture/noise, repeatedly following, flashing, etc.
- With respect to pornography, the Act criminalises watching or collection of pornographic content involving children also.
- People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
- It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The Act has been criticised as its provisions seem to criminalise 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.
- A Victim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age.
Child Welfare Committee
- A sexually abused child is considered as “child in need of care and protection” under Juvenile Justice (Care and Protection of Children) Act, 2015. Police officer should therefore inform the Child Welfare Committee about every case under the Act within 24 hours. CWC can appoint a support person for the child who will be responsible for the psycho-social well-being of the child. This support person will also liaise with the police and keep the child and the child’s family informed about the progress of the case. Reporting can be done through toll-free number 1098.
Contention around implementation of Protection of Children from Sexual Offences Act
Definition of child
- The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability.
Contradiction with the Medical Termination of Pregnancy Act, 1971
- The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.
- According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both. Many child rights and women rights organisations have criticised this provision. According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.
- Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim often go unrepresented.
- Recently the act was amended to increase the quantum of minimum punishment in case of Punishment for Aggravated penetrative Sexual Assault from 10 years to a minimum of 20 years and introducing the death penalty as an option
Criminalisation of consensual relationships
- The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual act will also be punished under this law, this coupled with the need for mandatory reporting has led to the criminalisation of consensual relationships between adolescents. This is especially a concern where an adolescent is in relationship with someone from different caste, or religion. Parents have filed cases under this Act to ‘punish’ relationships they do not approve of. In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalise consenting relationships at the request of the parents of the girl.