Abstract
The Protection of Children from Sexual Offences (POCSO) Act, 2012, aims to protect minors under the age of eighteen from sexual assault, harassment, and pornographic crimes. It also provides a friendly legal system for minors in cases involving these offenses. Priority is given to the “best interest of the child” theory, which also seeks to safeguard minors during the whole legal process.
The 2012 Act is a statute that does not distinguish between men and women. All minors are protected from sexual assault by it. This study article aims to critically examine the POCSO Act’s results and applicability, identify its shortcomings, and offer solutions to go around them for the benefit and protection of minors.
Introduction
As the most vulnerable group in our society, children need all encompassing protection to guarantee their proper growth and their power and wellbeing. In 2012, the Protection of Children from sexual offenses (POCSO) Act was passed by the Indian Parliament in recognition of the urgent need to protect children from exploitation and abuse1. This historic law establishes a strong legal foundation for the prevention, identification, and prosecution of child sexual assault, sexual harassment and pornography. The purpose of this introduction is to give a general review of the POCSO Act, stressing its main goals, important clauses, and importance in creating an Indian legal system that is focused on children. We can better appreciate this Act’s importance in creating a safer environment for our children if we are aware of its guiding principles.
The Ministry of Women and Child Development pushed for the passage of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which would contain stricter and less ambiguous legal provision to effectively address the horrible crimes sexual exploitation and abuse2.
Historical Background
The number of crimes against children is sharply increasing every year, and until 2012, there was no law specifically addressing crimes against minors, particularly whose involving sexual activity. Section 354, 375, and 377 of the Indian Penal Code (IPC)3, 1860, as well as the Goa Children’s Act, 2003 and Rules4, 2004 were the only laws that addressed offenses against minors before 2012. Despite the United Nation’s 1989 adoption of the Convention on the Rights of the Child, India had a particular law that addressed child abuse until the Protection of Children from Sexual Offences Act, 2012 (henceforth referred to as the POCSO Act).
Sections 354, 375, and 377 of the Indian Penal Code, 1860, as well as the Goa Children’s Act, 2003 and Rules, 2004 did not protect male children, and the Indian Penal Code did not define “modesty” or “unnatural offence,” making it challenging to apply these laws to crimes against children. The POCSO Act was passed in 2012 and went into effect on November 14, 20125, in an effort to stop the rising number of child sexual abuse cases in our nation.
Necessity of the POCSO Act
According to 2011 census figures, India has 472 million children under the age of eighteen, making it one of the countries with the greatest kid populations6 in the world. An expansive interpretation of Article 21 of the Indian constitution guarantees Indian Constitution guarantees Indian residents that the state must protect children7. This is also required because India is a signatory to the United Nations Convention on the Rights of the Child. The only specific child abuse law in place prior to the POCSO Act’s enactment was the Goa Children’s Act 2003.
Regarding the Indian Penal Code, 1860 (now known as the Bharatiya Nyaya Sanhita, 2023; henceforth referred to as the IPC), there was no specific clause that addressed offenses against minors. As a result, these offenses were typically addressed under Sections 63 of the Bharatiya Nyaya Sanhita of 2023 (rape), 377 (unnatural offences, now decriminalised), and 354 (assault or criminal force to woman with intent to outrage her modesty, now, Section 74 of the Bharatiya Nyaya Sanhita, 2023). Nevertheless, these IPC provisions have drawbacks of their own. First of all, the interests of male children were not protected or safeguarded. Furthermore, concepts like “modesty” and “unnatural offense” were not defined explicitly.
Nature of Acts
The POCSO Act is a comprehensive law that covers offences, penalties, and procedures in nine chapters. According to the POCSO ACT, sexual offences fall into three main categories:
1. Sexual Assault- (i) Penetrative sexual assault (section 3 and 4)
(ii) Aggravated Penetrative sexual assault (section 5 and 6)
2. Sexual Harassment (sections 11 and 12)
3. Using a child for pornography (section 13)7
Penetrative Sexual Assault
Section 3 of the POCSO Act deals with penetrative sexual assault. As per section 3, A person is said to commit “penetrative sexual assault” if8–
(a)he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or make the child to do so with him or any other person; or
(b)he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child to do so with him or any other person;
(c)he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any other person, or:
(d)he applies his mouth to the penis, vagina, anus, urethra of the child or make the child to do so to such person or any other person9.
According to Section 4, penetrative sexual assault carries a minimum sentence of 10 years in prison, with the possibility of an extension to life, as well as fine. If the assault occurs against a child under the age of 16, the penalty is 20 years in prison, with the possibility of an extension to life in prison, which entails the victim’s remaining natural life, and a fine. The victim must receive appropriate fine determined under this clause in order to cover their rehabilitation and media costs.
Sexual Assault
Section 7 of POCSO Act defines sexual assault as, “Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Sexual assault is the act of touching a child’s genitalia and breasts or forcing a youngster to touch another person’s private areas with the aim to have intercourse without penetrating.
According to Section 8, sexual assault carries a minimum sentence of three years in jail, with the possibility of an extension to five years, as well as a fine.
Aggravated Sexual Assault
Aggravated sexual assaults are when a police officer, member of the armed forces, a public servant, or employees of a jail, hospital, or educational institution sexually attacks a kid within the boundaries of their jurisdiction.
According to section 10, aggravated sexual assault has a minimum sentence of five years in jail, with the possibility of an extension to seven years, as well as a fine.
Pornography Purpose
According to the Act, if someone uses a child for sexual enjoyment in any kind of media, they are guilty of utilizing them for pornographic purposes
People who utilize children for pornographic purposes and cause sexual assault are likewise subject to penalties under the Act. Any visual representation of sexually explicit behaviour involving a kid, including photographs, videos, digital images, or computer-generated images that are indistinguishable from real children, is considered child pornography, according to the Bill.
Features of the Act
- In order to guarantee the child’s healthy physical, emotional, intellectual, and social development, the Act is gender neutral and prioritizes the child’s best interests and welfare at every stage.
- According to the Act, a child is defined as any individual under the age of 18 years. The child’s best interests and welfare are given priority at all times to guarantee the kid’s healthy physical, emotional, intellectual, and social development.
- A sexual assault is considered “aggravated” in specific situations, such as when the victim is mentally ill or when the abuse is carried out by someone in a position of trust or authority toward the child, such as a family member, police officer, teacher, or doctor. It also defines various types of sexual abuse, such as penetrative and non- penetrative assault, sexual harassment and pornography.
- Under the Act’s abetment provisions, those who traffic children for sex are also subject to punishment. With a maximum sentence of rigorous imprisonment for life and a fine, the Act stipulates severe punishment that is graded according to the seriousness of the offense.
Punishment of the Act
- Penetrative Sexual Assault (Section 3 & 4)
- Imprisonment not less than 10 years, may extend to life and fine.
- Victim under 16: Minimum 20 years up to life and fine.
- Aggravated Penetrative Sexual Assault (Section 5 & 6)
Occurs when:
- Offender is in authority (police, teacher, caregiver, relative, etc.)
- Part of gang
- Uses a weapon or causes grievous harm, pregnancy, mental illness, death etc.
Punishment:
- Minimum 20 years rigorous imprisonment up to life, and fine.
- Option for death penalty.
- Sexual Assault (Non-penetrative) (Sections 7 & 8)
- Touching with sexual intent without penetration, making the child touch:
- Punishment ranges from 3 to 5 years imprisonment and fine.
- Aggravated Sexual Assault (Section 9& 10)
- Sexual assault under aggravated circumstances similar to those in Section 5:
- 5 to 7 years imprisonment and fine.
- Sexual Harassment (Section 11 & 12)
- Includes gestures, showing pornography, stalking, threats, forcing child to expose body, etc.:
- Imprisonment up to 3 years + fine.
- Using Child for Pornographic Purposes (Section 13 & 14)
- Making a child appear in pornography:
- First offence: Minimum 5 years, up to 7 years + fine.
- Subsequent convictions: Minimum 7 years + fine.
- Abetment and Attempts (Sections 16–18)
- Abetment: Punished as if the person had committed the offence.
- Attempted offence: Imprisonment up to half of prescribed punishment.
Landmark Judgement
- Gaya Prasad Pal @ Mukesh v. State (2016)
Fact of the case
- The appellant, stepfather, was convicted by a special court on multiple counts;
- Penetrative sexual assault under Section 4 of POCSO (rape of his under 14 years stepdaughter, resulting in pregnancy)
- Aggravated penetrative sexual assault under Section 6 of POCSO.
- Rape under Section 376 IPC,
- Assault under Section 354 IPC
- Criminal Intimidation under Section 506 IPC.
High Court Judgment
- Section 6 POCSO (aggravated assault) no trial:
- The trial court’s failure to file charges under Section 6 rendered the imposition of punishment under that section void.
- Section 42 POCSO and Section 71 IPC, the Double Jeopardy Principle: The identical circumstances served as the foundation for both the IPC rape and the POCSO offense (penetrative assault).
Instead of numerous sanctions for the same conduct, POCSO permits conviction for the more serious of two conflicting offenses. - Choosing a More Serious Offence: The penalty for rape under Section 376(2) IPC is life in prison, which is worse than POCSO Section 4.
Consequently, POCSO conviction under Section 4 should be overturned and only IPC sentence should remain in effect.
- Balaji Sarjerao Kamble v. State of Maharashtra (2017)
Appellant: Balaji Sarjerao Kamble, convicted for:
- Rape under IPC Section-376,
- Penetrative sexual assault under POCSO Section-4,
- Sexual assault under POCSO Section-8
Sentence:
- 7 years RI + ₹5,000 fine under Section- 376 IPC (default: 3 months RI),
- 7 years RI + ₹5,000 fine under POCSO Section-4,
- 3 years RI + ₹1,000 fine under POCSO Section-8.
Sentences to run concurrently
- Hari Dev Acharya @ Pranavanand and Ors v. State (2021)
Background:
The primary accused, Nikhil Arya, was accused of sexually assaulting a juvenile pupil at a Delhi gurukul; other defendants, including Hari Dev Acharya (Pranavanand), were charged with failing to report the offense under POCSO.
FIR filed on September 4, 2017, in accordance with POCSO Section 10 and IPC 377. In August and November of 2018, summonses were sent out.
Final Decision:
Hari Dev Acharya and others’ summonses were upheld. In accordance with Section 482 CrPC, the High Court denied their applications. Joint jurisdiction was emphasized, adhering to CrPC standards in cases when POCSO remains quiet.
Conclusion
Unquestionably, the POCSO Act is a child-centric and revolutionary law that is changing societal and legal perceptions in India. It imposes harsher penalties, electrifies legal protections, and requires delicate, specialized processes.
Its actual efficacy, however, hinges on due process protection, subtleties in application, and consistent implementation. How well POCSO accomplishes its mission of protecting all children from sexual violence will depend on how well it addresses issues of evidence quality, adjudication delays, and overreach while incorporating victim assistance and maintaining legal balance.
1Ministry of Women and Child Development, GOI, Annual Report 2012-13
2The Protection of Children from Sexual Offences Bill, 2011
3IPC, 1860, Section 354(Outraging modesty), 375(rape), 377(unnatural offences)
4Goa Children’s Act, 2003 and Goa Children’s Rules, 2004, a state-specific law
5Gazette Notification S.O. 2827
6Office of the Registrar General & Census Commissioner, 2011 Data
7POCSO Act Section 3-13: Ministry of Law and justice, GOI
8POCSO Act Section 3- Definition of Penetrative sexual assault
9This provision ensures that both direct and indirect acts of penetration are criminalized.
