Author ~ Animesh Upadhyay

“Legislations are the primary characteristic and means of growth in any mature legal system.” 

~ Roscoe Pound

Introduction

Children are the future therefore, their special needs must be accommodated, they have the right to be protected wherever they are and the State shall create a caring, protective and safe environment for all children. Therefore, adhering to its duty to ensure protection of children from sexual offences Government of India enacted ‘Protection of Children Against Sexual Offences’ Act, 2012 on 22 May 2012 the act provides 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.

In the case of Sakshi v. Union of India[1], the Apex Court highlighted the IPC’s inadequacy to deal with child sexual abuse. It also attempted to widen the meaning of “rape” to provide justice to a child victim. Through a Public Interest Litigation, Sakshi, an NGO functioning from Delhi, drew the attention of the court to the existing Sections 375 / 376 of the Indian Penal Code and various other sections, and it was pointed out that the interpretation being placed by courts on these sections cannot be said to be in tune with the current state of affairs existing in the society, particularly in the matter of sexual abuse of children.

Unique Cases of Pedophiles came into the light like the case of Freddy Peats, a paedophile of German and running a gurukul in Goa, was convicted for life under Section 377 of IPC, and sentenced for diverse periods for other varied offences. His victims were boys staying in a childcare institution established and managed by him. Freddy Peats’ appeal before the Panaji Bench (Goa) of the Bombay High Court was dismissed on 2nd April 1998. Freddy Peats died in 2005 while serving his sentence in Aguada Central Jail. There were many legal lacunae too, that made the enactment of the Act (POCSO) mandatory. The substantive law was very inadequate to deal with cases of child sexual abuse. The diverse types of sexual offences committed against children were not finely calibrated. Sections 375 and 376 (2) of the IPC were invoked in cases of penetrative sexual abuse of a girl, and Section 377 of IPC when the victim was a boy. If no penetration had taken place, sexual crimes were reported under Sections 354 and 509 of the IPC, when the victim was a girl, but there was no such corresponding provision for a boy.

In March 2000, the Law Commission of India published the 172nd Report on Review of Rape Laws after consultations with Sakshi, Interventions for Support, Healing and Awareness (IFSHA), All India Democratic Women’s Association (AIDWA) and the National Commission for Women (NCW). The Law Commission recommended amendments to the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act (IEA). It recommended substitution of the word “rape” with “sexual assault”, making the offence “gender neutral”, and widening its scope so as to include “not only penile penetration but also penetration by any other part of the body (like finger or toe) or by any other object.” For reasons, the Commissions cited that “young boys are being increasingly subjected to forced sexual assaults”, and that the sexual offences included “not only penile penetration but also penetration by any other part of the body (like finger or toe) or by any other object.” The Law Commission further recommended that the punishment should be more severe when the perpetrator is “the father, grandfather or brother” or “any other person being in a position or authority towards the other person” because they “more often than not commit the offence of sexual assault on the members of the family or on unsuspecting and trusting young persons.” The recommendations for changes to the Criminal Procedure Code were mainly pertaining to special procedures for recording child’s statement by the police, medical examination of the child victim, and the child’s deposition in court.

POCSO Amendment Bill, 2019

The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in Rajya Sabha by the Minister of Women and Child Development, Mrs. Smriti Zubin Irani on July 18, 2019. The bill amends POCSO Act, 2012, key changes that are made in bill are under Section 4 Penetrative Sexual Assault is imprisonment between 7 years to life and fine, the bill increases the penalty from 7 years to 10 years. It further provides that if an individual commits Penetrative Sexual Assault on a child below the age of 16 years, they will be punished with imprisonment to life with fine for around 20 years. The Bill introduced two additional grounds to the definition of Aggravated Penetrative Sexual Assault (Section 5 and 6) that contains: the assault resultant in death of a child, assault committed during a natural calamity or any similar situations of violence. The penalty for APSA is now 10 years imprisonment for life with a fine. The Bill increases the punishment from 10 years to 20 years and the maximum punishment to death penalty. Under Aggravated Sexual Assault (Section 9), the Bill adds 2 more offences to the definition. Assault committed during a natural calamity and administrating or help in administering any hormone or chemical substance to a child for purpose of attaining early sexual maturity. Under Pornographic Purposes (Section 14), it defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated image indistinguishable from an actual child. The Act penalizes Storage of Pornographic Material (Section 15) for commercial purposes with a punishment of up to 3 years or fine or both. The Bill amends this to provide that the punishment can be imprisonment between 3 years to 5 years, or fine or both. Also, the Bill adds 2 other offences- failing to destroy, delete or report pornographic material involving a child and transmitting, displaying, distributing such material except for the purpose of reporting it. The expected impacts of the bill are to put off the trend of child sexual abuse by acting as a deterrent due to powerful penal provisions incorporated in the act. It aims to protect the interest of vulnerable children in times of distress and ensure their safety and dignity. The amendment also seeks to establish clarity regarding the aspects of child abuse and punishment thereof.

Punishment for Offences for using children for pornographic purposes

Offence POCSO Act, 2012 2019 Bill
Use of child for pornographic purposes   Maximum: 5 years       Minimum: 5 years
Use of child for pornographic purposes resulting in penetrative sexual assault     Minimum: 10 years  Maximum: life imprisonment       Minimum: 10 years  (in case of a child below 16 years 20 years)

Maximum: life imprisonment

Use of child for pornographic purposes resulting in aggravated penetrative sexual assault    Life imprisonment   Minimum: 20 years 

Maximum: life imprisonment or death.

Use of child for pornographic purposes resulting in sexual assault     Minimum: 6 years

    Maximum: 8 years

     Minimum: 3 years

      Maximum: 5 years

Use of child for pornographic purposes resulting in aggravated sexual assault     Minimum: 8 years     

Maximum:10 years

      Minimum: 5 years

      Maximum: 7 years

Conclusion

The POCSO Amendment Bill 2019 posits death penalty for raping a child below 12 years of age. However, the death penalty has never been a solution to combat rapes or forms of crime. There is still no substantive education system and progress in political statements about rape and rape legislations in India and rape laws like POCSO distressing from poor implementation. Has death penalty been helpful in curbing rape? If it had been, why would there still be a lot of crime? It is a myth to punish child rape with death penalty to reduce child sexual abuse. Since the causes of rape are variable and subjective, it can lead to some short term reduction. India must acknowledge its weak performance in enforcing the law and take immediate action to close the widening gap between principle and practice. Instead of amending laws, the Government is supposed to focus on existing laws and their slow-paced justice delivery. A prolonged legal process often adds to the victim’s suffering. Victims have to wait for years to get justice; even in cases where death penalty has been handed out, those convicted may have chances to appeal against their sentence. The POCSO Act states that a trail in any case of child sex abuse should be completed within one year. But this is rarely followed as the legal process remains slow. We have to strengthen our liveliness and efforts on existing legislation rather than looking to amend more laws and making still further newer laws, strange to our society, culture, lifestyles, conventions and hard realities of the people. The POCSO Act is strong but the implementation is weak since there exists corruption in the system at all levels.

Only amendments will not solve the problem, after the Nirbhaya case very stringent laws were made, special funds were allocated but this has not stopped the abuse. In fact, the crime rate has escalated, if our laws were well executed the scenario would have been different. The POCSO Act grants diverse results. While the mandate of the act is truly radical- it aims to protect children from sexual abuse and provides for a victim sensitive criminal justice process, there are several obstacles in its implementation. The implementation of the act has been dirtied in malpractices and outdated legal proceedings. There is inadequate information available to the people on provisions of the POCSO Act. Politicization of rape cases on communal grounds and the inability of children to understand campaigns related to abuses and seek proper assistance for themselves increases the complexity of these cases. Hence, an attempt should be made to improve the implementation and enforcement of existing laws like POSCO, only then can we expect the amendment to live up to its promise of protecting children from sexual offenses.


[1] 2004 5 SCC 518


About the Author: Animesh is a fourth-year law student at Dr Ram Manahor Lohiya National Law University, Lucknow.


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