The POCSO Act: Aspects & Loopholes

The Protection of Children from Sexual Offences (POCSO) Act has been in the news for quite some time now. A few weeks back when the Bombay High Court Justice Pushpa Ganediwala gave her controversial judgment in child sexual abuse cases, where she ruled that groping a minor without “skin-to-skin” contact, could not be termed as sexual assault.

Another instance was back in 2019, the POCSO Act gained attention when an amendment was made to increase the minimum punishment for aggravated as well as penetrative sexual assault on children below 16 years from 10 to 20 years, extendable to life imprisonment or death.

Before talking about the loopholes, let's consider why we need such a law in the first place:

• India has one of the largest populations of children in the world – Census data from 2011 shows that India has a population of 472 million children below the age of eighteen.
• Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and is also mandated given India’s status as a signatory to the UN Convention on the Rights of the Child.

However, it's crucial to think about some of the existing laws we have in place.

Don't the existing laws have enough provisions to deal with the prevention of sexual offenses against children?

Child sexual abuse is prosecuted under the following sections 375, 354, and 377 of the IPC. However, such provisions have drawbacks since the IPC is not effective in protecting the children due to the following reasons:

• IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offense. Further, it does not protect the “modesty” of a male child.
• In IPC 377, the term “unnatural offenses” is not defined. It only applies to victims penetrated by their attacker’s sex act and is not designed to criminalize the sexual abuse againsg children.

The POCSO Act has been enacted to protect children from offenses of sexual assault, sexual harassment and pornography; and provide for the establishment of Special Courts for the trial of such offenses and related matters.

Some of the important provisions of the POCSO Act are:

• It is gender-neutral
• It recognizes that boys can be victims of sexual violence as well.
• It defines a child as someone under the age of 18.
• It increased the scope of reporting sexual crimes against children.
• It expanded the definition of sexual assault to include non-penetrative sexual assault as well as aggravated penetrative sexual assault (sections 3 to 10) and also included punishment for persons in positions of trust of authority like public servants, staff of educational institutions, police etc.
• Notably, this law recognizes sexual harassment of a child which involves touch, and also that which doesn’t (sections 11 and 12), such as stalking, making a child expose themselves or exposing themselves to a child, and so on.
• Mandatory Reporting - Under section 19 of the Act, it is mandatory to report sexual crimes against children, including when there is an apprehension that an offence under the Act has been committed.

Another hallmark of the POCSO Act is that it set up procedures to make the criminal justice system child-friendly and prevent re-traumatization. This includes everything from how the statement of the child should be recorded, to the medical examination, to the designation of special child-friendly courts.

The issue under consideration is not with POCSO but with Cr.PC. Provisions in the Criminal Procedure Code (Cr.PC) prohibit judicial magistrates from taking cognizance of cases beyond a specific time period. Such a scenario renders historical reporting of child sexual offenses which took place before 2012 legally implausible. This presents an insurmountable legal barrier against the registration of historical child sexual offenses which took place before 2012.

The Union Ministry of Law and Justice, at the request of the then Minister for Women and Child Development, clarified that no time limit shall apply for POCSO cases. Though this was a welcome clarification and would help strengthen the POCSO jurisprudence, it still fails to address the plight of children who were victims of sexual abuse before 2012.

There is an urgent need to reform and revise our laws to account for various developments such as historical reporting of child sexual abuse. At the very least, the Union government must frame guidelines to direct effective and purposeful prosecution in cases that are not covered by the POCSO.