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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

LEGISLATIVE ANALYSIS ON PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES (POCSO), 2012

Aparna Singh Sengar, Symbiosis Law School, Pune

Introduction

Before the Protection of Children from Sexual Offences (hereinafter as "POCSO") Act of 2012
was enacted, there was no special legislation dealing with special offenses concerning
children's sexual offenses. The Indian Penal Code (hereinafter as "IPC") of 1860 dealt
generally with the crimes and punished the perpetrators. In fact, IPC 1860 did not only deal
with child sex crimes but also with the existence of sections like 322 on physical harm, 354 on
punishment of assault on women who dislike their humility; Sec.375, on rape; and finally
Sec.377, on unnatural assailants and section 360 on sexual harassment.1 Since those parts of
the IPC did not define modesty in specific terms, they covered conventional peno-vaginal sex
only in the definition of rape and were only given precedence to the women victims, and hence
not to gender-neutral, many criminals were unpunished for their breach. The lack of an
appropriate legal remedy to the ever-increasing number of sexual offenses against children was
a significant threat to children's well-being and to the maintenance of justice in society.

The Law for the Protection of Children from Sexual Offenses (POCSO), which was especially
designed for dealing with crime, such as child sexual abuse and child pornography, entered
into force on 14 November 2012. The Act extended the scope of reportable crimes against
children not previously covered by the Indian Penal Code with its 46 sections (IPC). The
punishment for abuse of a person in trust and/or authority, including civil employees, police,
the military and educational or religious institution personnel, was extended by the penalty for
aggravated, penetrative sexual aggression. They also established the reporting system,
including a penalty provision for not reporting instances or misrepresentations. The
proceedings for registering a child's statement by the police and the court were laid out,
especially requiring the child friendliness of the youngster and the establishment of special
tribunals. The POCSO Act specifies sexual attack, sexual harassment, pornography and the
protection of children's interests and well-being. It also lays forth a child-friendly process for

1 Indian Penal Code, 1860.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

documenting evidence, investigating and prosecuting offences, setting up special courts, and
quickly prosecuting cases.

Analysis of the ACT

This Act had the social-legal mission to prevent the harsh exploitation of child sex abuse in the
Indian sub-continent and to safeguard the greater masses of the child from the horrific atrocities
and other dangers that children, particularly small children and males, suffered as a result of
sexual sabotage. The law is neutral in gender. In contrast to the Indian Penal Code, the POCSO
Act of 1860, it does not see women as simply women who have been sexually assaulted. The
Act is a case in point of legislative endeavour to ensure that all children are protected regardless
of their gender. The Act includes expanding the extent of penetrating sexual assault to punish,
whether by a trusted person or by a powerful person who has an effect on the kid, all
conceivable variants of such penetrative conduct. The Act also takes notice of the misuse of
powers, as it strictly punishes any individual such as a police officer, any official or security
officer who abuses of his or her power to perpetrate sexual attack on a child under Section 5 of
the Act. 2 The Act has broadened the meaning of the term media to encompass print, computer
or any other technique used for the manufacture, offering or distributing of pornography to
limit the spread of child pornography. The law also punished the storing of pornography of
children. The Law allows for the formation of special courts in every area to ensure a fast trial
and the exact execution of justice. Furthermore, the Special Courts have the authority to
conduct the trial in the camera and with a trusted child.

POCSO Act 2012 provides for the following penalties for harsh and savage offenders who are
not only punishing the whole Child Vicinity, immorally and illegally, but also slowing down
its own trust, self-esteem and whole dignity. Under Section 4, if, through the abominable
behaviour of penitentiary vagina, criminal urethra, or penal or criminal acts of the sexual
commission, any wrongdoer or perpetrator commits a criminal sexual assault against a young
girl or any other children's mass in general, then they shall be held liable for such imprisonment
not under seven years in jail. "Under Section 6 of this Act, the penalty of the aggravated
penetrative sexual assault lies in the abomination by any authorities for a penalty which may
not be less than ten years in prison, but which may be punished under Section 67 of this Act,
but which could be extended to strict life imprisonment and fines. According to Section 10 of
this Act, a punishment which shall be not less than 5 years imprisonment but may also be

2 Sec. 5 of the POCSO, 2012.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

extended to 7 years fine is the responsibility of the criminal. Non-penetrative rape includes the
contacting of a young person's vagina, rear end or breast, or demanding that a kid contact the
vagina, the guilty person's penis, or any other person who has a sexual expectation. The
punishment provided for under Section 10 of this Act, which must not be less than 3 years
imprisoned but may extend up to five years and a fee, is the responsibility of the perpetrator
for such an offence."

The law leaves no room for consent granted by those under 18 years of age. That will imply
the spouse is accountable for reservations under the terms of POCSO Act, if the seventeen-
year-old boy or girl had a sexual relationship of nineteen years. Furthermore, the Act does not
clarify the eventuality of any type of sexual activities between two children. They are both
children in need of care and protection (CNCP) and children in conflict with law, both
technically (CCLs). The police state in practice that girls are CNCPs and that the guys are
CCLs. 3 The proof of the child's age is another difficulty confronted by victims. The
requirements of Rule 12 in the Rules of Youth Justice have also been read by the Court, as the
POCSO Act silent what documents are to be examined in the context of assessing the age of
the victim's child. Only the birth certificate, the school certificate, or the registration certificate
shall be recognized by this rule. However, the youngsters only need to undertake a bone
oscillation test if they can present other documentation including a legal document such as
passports. This test can at most offer an approximate estimate of the child's age. The POCSO
legislation needs to make explicit the papers to be examined for proof of a child's age, and if a
kid should get benefit from doubt in the absence of an accurate evaluation by ossification test.
Similar to the IPC's violating the law. The pronoun used for the defendant is "he", so that,
again, for crimes under the applicable sections of the POCSO Act only a male is to be booked.
Although, contrary to rape, a victim may be a kid regardless of gender under the POCSO Act,
only a man may still be an accused and a protective shield can be granted to women again, for
grounds not known.

These are evident evidence of the inexplicable gender prejudice in Indian sex laws. Also, while
the POCSO Act merely examines the age element, the boy can subsequently be prosecuted
under the IPC if the adolescent female is under age 18 who is experiencing coercion. However,
because of the partial definition, the opposite will not be true. A woman committing a crime
like this may only be charged for sexual assaults under the POCSO Act, which is far less

3 Living Conditions in Institutions For Children in Conflict With Law, Manual, March,2017.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

punishable than the IPC. The system to deliver rapid justice for minors victimised by sexual
assaults is one of the foundations of the POCSO Act. However, numerous significant obstacles
hinder children under 18 years of age's legal protection. The timing of child testimony and the
end of the proceedings provided for in Section 35 of the POCSO Law provide an apparent
illustration. This demands child witness evidence within one month of the court's cognizance
and trial within one year. However, the overcrowded character of courts in India makes such
regulations more flouted than they have been followed with.

Another key problem is temporary compensation. For urgent purposes, the minor victim has
the right to interim recompense. All parties must nevertheless realize that temporary
compensation should not be seen as limiting solely their medical requirements. It encompasses
all the child rehabilitation needs. In accordance with Section 33(2) of the POCSO Act, the
Specific Public Prosecutor shall first transmit the questions to the Special Court while recording
the exam, cross-examination or review of the child, and then ask that the kid. The child should
also be often interrupted between questions. The POCSO is subject to three major
administrative flaws. First, the police encounter several hurdles to completing a proper survey
in POCSO instances despite their best efforts. It starts with the FIR registration. The police
should guarantee that the FIR registration and the conduct of the Medico-Legal Case
(hereinafter as MLC) are not delayed. Secondly, the victim's MLC is often not performed
because false information is supplied to his family on the long-term negative effect of the MLC
on the health of the child. In a hospital he or she sometimes confronts a harsh atmosphere when
the youngster needs to attend an MLC or abort. Therefore doctors must be trained how to
interact with the kid in order to avoid future trauma with compassion. In addition, the police
often contaminate or putrefy forensic materials because of incorrect stocking. In order to ensure
that the evidence is appreciated smoothly along the process, the police need to know the best
ways to gather forensic evidence. In addition to raising public knowledge of the requirements
of the Act, under Section 43-44 and Rule 6 of the POCSO Act institutions such as the National
and State Committees for Child Rights must monitor and assess the enforcement of the Act on
a regular basis. 4

The POCSO instances in the country comprise 51 per cent of states such as Madhya Pradesh,
Maharashtra, Uttar Pradesh and Haryana as well as Delhi. However, in these States, we observe
that the conviction rate is between 30% and 64%. 612 FTCs are already working according to

' Rule 6 of the POCSO Act,2012.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

a 19/21 RTI answer from 1023 Fast track courts to be established. Since a result, these courts
urgently need to speed up their system of enforcement to assure the victim of child sexual abuse
in a timely manner, as 89% of the cases still await trial.5

Conclusion

The fundamental aim of the POCSO Act is to protect children from sexual attacks and abuse
and sexual crimes of all kinds. However, the aim of this law cannot be achieved as long as there
is a tabu in Indian households on the subjects of safe sex, good touch and bad touch. A large
majority in rural India are still not aware of this Law, which seeks to curb sexual abuse of
children, so more often than not to put an end to child marriage or exclusion from society of
any instance of sexual offense against a child or complete silence about such abominable
crimes against an infant. Including sex learning in schools, sensitization of parents, family
members, policemen and legal professionals is the best way to solve this problem.
Understanding the subject of sexual violence must be given importance to everyone, as the
silence of shame and uncertainty on sexual offense themes can be broken only through
understanding.

In addition, it is about time the POCSO Act was amended to address the weaknesses in the
Law preventing judicial action. All-inclusive and thorough definitions of offenses would be a
welcome amendment to the Act as an unpleasant law would be lack of explanation and clarity.
Cautious but educated efforts must be taken by the legislature to execute the Act more
effectively. In fact, this Act reduced and limited the harsh incidence of child sexual abuse and
so secured and protected children's interests on a broad and broad scale in order to avoid these
crimes from being committed. The effective initiation and implementation of the POCSO Act,
2012, prevents the Child Vicinities of the cruelty of mankind as well as the strict, hard-hitting
punishment prescribes for each of the act's perpetrators so that these hard-hitters or the
perpetrators as well may be dissuaded to punish.

s Everyday 4 child victims of sexual abuse denied justice due to insufficient evidence: Study, @businessline
(2021), https://www.thehindubusinessline.com/news/national/everyday-4-child-victims-of-sexual-abuse-denied-
justice-due-to-insufficient-evidence-study/article34018630.ece (last visited Aug 1, 2021).