Protection of Children from Sexual Offences Act (POCSO)

Introduction

The word “child” has various conceptions and interpretations in different manner. Sometimes child is generally human being between stages of birth and puberty (1) and sometimes there are some beliefs that even an unborn foetus is also considered as child. But in ancient India, it is believed that the child attains the puberty only when he would have completed his education from Gurukula. But by the time, the concept called rights of children has been evolved and the children were considered ‘small adults’. But in modern time also, the ‘Geneva Declaration of Rights of the Child’ has been adopted and this enunciated the child’s rights to receive many rights including the right to protection from exploitation. Also, the rights of children were dealt at the international platform like Universal Declaration of Human Rights (UDHR) which provided the rights for women and children.


Child Sexual Abuse

Sexual Abuse means a touch of the child with sexual intent. It may be assumed in the form of bodily penetration. The term ‘touch’ may result in sexual stages like penetrative sexual assault and also this touch as well as the touch of private body parts of child or offender. According to a study published in 2009, clinical psychology Review, it is estimated that at global level 19.7% of female children and 7.9% of male children faced sexual abuse (2). But the child sexual abuse has reached a critical and severe situation in India. According to survey and statistics on child sexual abuse in India 1998, out of 600 English speaking middle and upper class women, 76% of women had been abused in childhood or adolescence. Also, according to Government of India study on child abuse 2007, out of children respondents, 5.69% reported being sexually assaulted, children in Assam, Andhra Pradesh, Bihar and Delhi reported the highest incidence of sexual assault.


Penetrative Sexual Assault

Section 2(d) of POCSO Act, 2012 defines a child as ‘child’ means any person below the age of eighteen years. Also, section (3) of the act defines the penetrative sexual assault and simply sexual means bodily penetration to minor child. Section (5) of the act deals with the provisions for the commission of sexual assault by police officer. In the case of state (Govt. of NCT Delhi) Vs. Mulla Muzib (3), Victim’s mother left him with his maternal uncle so that he could learn some work but as a result maternal uncle sexually assaulted victim by penetration. In the case Om Prakash Vs. State of Rajasthan (4), there was rape by teacher on minor student. Also in the case S. Jaishankar Vs. State of Madras (5), there was rape on a minor of 8 years of age.

Penetrative sexual assault is really a very heinous crime where the children of very small ages get assaulted and exploited only for the sexual pleasure. No matter what is the age, race, sex, colour of the children. Day by day the children are raped and the people kill the children after rape.

Punishments

Section (4) of the POCSO Act provides the punishment for the offence of penetrative sexual assault and section (6) provides the punishment for the offence of Aggravated Penetrative Sexual Assault (6). The Apex court in the case State of Uttar Pradesh vs. Satish (7), laid down the philosophy prescribing punishment for the penetrative sexual assault. Also in the case Machhi Singh Vs. state of Punjab (8) the question of death sentence was observed for the punishment of the penetrative sexual offence. Indian constitution is the largest constitution which provides the provisions for everything. Likewise only, there are constitutional provisions relating to children. Article 15(3) of the constitution provided the state with the power to make special provisions for women and children and this is applicable for children who are exploited sexually. Article 21(A) mandates every child in India shall be entitled to free and compulsory education upto 14 years of the age.

This shows that there are punishments as well as constitutional provisions for the protection of children from sexual exploitation.


Sexual Harassment and Pornographic Offences

The concept of sexual harassment is a new concept defined by the POCSO Act. In the Act, sexual harassment would only be termed when there is physical contact and advances, a demand, or request for sexual favours, sexually coloured remarks, showing pornography etc. Showing pornography is punishable under section 13, 14 and 15. For Sexual harassment and pornographic offences, there are various international instruments like America’s largest Anti-sexual violence organization. Rape and abuse and incest National network prevent sexual violence. Besides this the U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job application or an employee because of person’s race, colour, religion,sex, etc. (10). Also, the Ontario Human Rights Commission (OHRC) also plays an important role in preventing discrimination and promoting and advancing human rights in Ontario.(11)

Child Pornography is type of pornography which exploits children for stimulating sexual feelings in the readers, viewer or listener or a combination of such sensual experience. Section 13 of POCSO Act says the use of child for pornographic purposes. Also, this section prohibits use of child in any form of media for the purposes of sexual gratification. In case Ranjit D. Udeshi Vs. State of Maharashtra (12) Supreme Court summed up the law on obscenity for child pornography and Section 14 deals with the punishment for child pornography.


Conclusion

Children offences in country like India has reached to the heights where the children crimes as well as sexual crimes are happening in seconds. In the country where women and children are not safe and specially children who are forced to do this shameful act. There is forcedness where the children are forced to this shameful act in order to fulfill some wishes. To conclude, the children’s protection must be prior in order to save the children from this shameful acts.


References:

(1) A Complete guide to Protection of Children from sexual Offences, Pratap Malik, pg. no. 2

(2) Ibid pg.no. 6

(3) Criminal leave petition No. 62/2015 High Court of Delhi, decided on 9th February 2015

(4) 2001 Cr LJ 230 : 2000(3) Raj LR 658

(5) 2004 Cr LJ 3598 : 2003 mad. LJ (Cri) 837 Mad.

(6) Ibid Pg. No. 132

(7) 2005 3 SCC 114: AIR 2005 SC 1000 : 2005 AIR SCW 905

(8) 1983 3 SCC 470 : AIR 1983 SC 957 : 1983 Cr LJ 1457

(9) 1990 3 SCC 318: 1990 Cr LJ 1469 : AIR 1990 SC 1412

(10) Ibid Pg. No. 173

(11) http://www.ohrc.on.ca/en/about commission accessed on 3rd December 2019.

(12) AIR 1965 SC 881: (1965) 1 SCR 65 : (1965) 2 Cr LJ 8


Submitted by,

Aditi Bais,

Year I, B.A.LL.B.,

Maharashtra National Law University, Nagpur.


(Image used for representational purpose only. Image Courtesy: https://vajiramias.com/current-affairs/amendments-to-pocso-act/5d2861d91d5def608ecd080a/ )

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