Protection of Children from Sexual Offences Act, 2012

  • India is home to the largest child population in the world, with almost 42 per cent of the total population under eighteen years of age.
  • Statistics released by the National Crime Records Bureau reveal that there has been a steady increase in sexual crimes against children.
  • According to a study conducted by the Ministry of Women and Child Development in 2007, over half of the children surveyed reported having faced some form of sexual abuse.
Why the need for a separate Act?
  • Before the passage of the POSCO, 2012 Act – there were only two punishable sexual offences in the IPC – rape, which is peno-vaginal penetration, and outraging the modesty of a woman, e.g. groping or taking indecent photographs.
  • Also, the law did not distinguish between an adult and a child.
  • However, in POCSO – all types of sexual offences against children as well as their corresponding punishments have been listed in detail.
Before POSCO
  • In State vs Pankaj Chaudhary (2011), the accused had inserted his fingers inside the vagina and anus of a five-year-old girl. He was accused of ‘outraging the modesty of a woman’ as there was no concept of penetration with fingers in Indian law. The defence had won in this case.
  • In State vs Manoj Shah and Pradeep Kumar (2013), two men could face life imprisonment under POCSO for sexually assaulting a five-year-old girl. This case began in April 2013.
Salient Features of the Act
  • This act is applicable to the whole of India and provides protection to children under the age of 18 years against sexual offences.
  • Definition of sexual abuse – penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor.
  • It has raised the age of consensual sex from 16 years as per Indian Penal Code, 1860 to 18 years. This means that –
    • Any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented.
    • A husband or wife can be prosecuted for engaging in a sexual act with his or her spouse under the age of eighteen years.
  • The burden of proof lies on the accussed – punishment has been provided for false complaints or false information with malicious intent.
  • People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
  • In keeping with the best international child protection standards, the Act also casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
  • The Act also casts the police in the role of child protectors and are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise.
  • The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child.
  • The Act also makes provisions for the medical examination of the child designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor.
  • The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible.
  • The Special Court can determine the amount of compensation to be paid to a child who has been sexually abused for the child’s medical treatment and rehabilitation.
  • The Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.
Positives of the Act
  • The Act is a welcome piece of legislation, in that it recognises almost every known form of sexual abuse against children as punishable offences, leaving little room for ambiguity in its interpretation.
  • Further, by providing for a child-friendly judicial process, the Act encourages children who have been victims of sexual abuse to bring their offender to book and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma.
  • It makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child.
  • The POCSO Act, 2012 does not recognize consensual sexual acts among children or between a child and an adult. And this is where the problem lies – especially in societies where legal literacy is poor.
  • There is a need to revamp this act with respect to certain technicalities but the act in itself has a pious goal and its provisions are child friendly, which shows that the welfare of children has been given due consideration.



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