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POCSO Act: Protection of Children from Sexual Offences Act

Protection of Children from Sexual Offences Act (POCSO Act)

  • Context (TH): Former Bombay HC Judge Pushpa Ganediwala, known for controversial POCSO Act judgments, is seeking a pension through the court.
  • She resigned after SC refused to confirm her permanent appointment to the HC after she delivered several controversial judgments concerning cases of sexual assaults against women and children.
  • In 2021, she adjudicated an appeal against a trial court order that sentenced the offender to three years in prison, the minimum sentence for sexual assault against children under the POCSO Act.
  • Ganediwala ruled that for an offence to qualify as sexual assault under the POCSO Act, there had to be skin-to-skin contact with sexual intent!
  • Ganediwala reduced that the man had committed the offence of outraging a woman’s modesty under section 354 of the IPC as he had groped the child through her clothing!
  • In a second case, she ruled that the acts of a man who exposed himself to a five-year-old child did not constitute offences under POCSO, as there was no physical contact.
  • In a third case, she acquitted a man holding that the absence of signs of violent struggle on women indicated it could not have been non-consensual.

Salient Features of POSCO Act, 2012

  • POCSO Act is the first comprehensive law in India dealing specifically with sexual abuse of children. It seeks to protect children from sexual assault, sexual harassment and pornography.
  • The Act, for the first time, defines penetrative sexual assault, sexual assault, & sexual harassment.
  • It also includes penalties for storing pornographic material and abetment of an offence.
  • The Act defines certain actions as “aggravated penetrative sexual assault”. These include:
    1. The cases when the offender is a police officer, armed forces member, or public servant.
    2. The cases where the offender is a relative of the child.
    3. If the assault injures the sexual organs of the child or the child becomes pregnant, etc.
  • It criminalises all sexual activities for those under the age of 18, even if consent was factually present between two minors.
  • Each district shall designate a Sessions Court to be a Special Court. The state government shall establish it in consultation with the Chief Justice of the HC.
  • A POSCO case must be disposed of within a year from the date the offence is reported.
  • It empowers the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to monitor the implementation of the provisions of this Act.
  • If a child has committed an offence under POSCO, it shall be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015.

POCSO (Amendment) Act, 2019

  • The amendment has enhanced punishment under various sections of the Act, including the death penalty for aggravated sexual assault on children.
  • It defines child pornography and makes it punishable.
  • The act added two more grounds to the definition of aggravated penetrative sexual assault:
    1. Assault resulting in the death of the child.
    2. Assault committed during a natural calamity.

POCSO and MTP

  • A registered medical practitioner (RMP) is obliged under Section 19(1) of the POCSO Act to report to the police when a minor approaches him/her for an abortion.
  • SC’s 2022 judgment exempted RMPs from disclosing to the police the identity of minors who have come in for an abortion, only on request of the minor and the guardian.
  • This was done to enable minors to approach an RMP for abortion without fearing exposure.

POCSO Act and Consent

  • Under the POCSO act, the consent of a child is immaterial.
  • Consensual sexual intercourse with or among adolescents is treated on par with rape.
Demand for changing the age of consent
  • With the enactment of POCSO, several young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
  • Chief Justice of India (CJI) D.Y. Chandrachud appealed to the government to relook at the issue of the age of consent under the POCSO Act.
  • Madras High Court recommended that the age of consent be revised to sixteen.

United Nations Convention on the Rights of the Child (UNCRC)

  • UNCRC is an international human rights treaty that sets out children’s civil, political, economic, social, health and cultural rights.
  • The UN General Assembly adopted the treaty in 1989, and it came into force in 1990.
  • India ratified the convention in 1992.
  • The convention defines a child as any human being under 18 years unless the age of majority is attained earlier under national legislation.
  • The parties to the Convention must take measures to prevent children from being coerced into any unlawful sexual activity.

National Commission for Protection of Child Rights (NCPCR)

  • It is a statutory body established in 2007 under the Commission for Protection of Child Rights Act, 2005.
  • It is responsible for the protection and promotion of the rights of children, including monitoring the implementation of child-specific laws, such as:
    • Right to Education (RTE), 2009
    • Protection of Children from Sexual Offences (POCSO), 2012
    • Juvenile Justice Act, 2015

Composition

  • It consists of Chairperson and six members appointed by the Central Government.
  • Out of the six members, at least two should be women.
  • The Chairperson is appointed on the recommendation of a 3-member selection committee chaired by the minister-in-charge of the Ministry or the Department of Women and Child Development.
  • The Chairperson holds office for a term of three years or 65 years, whichever is earlier.
  • The members hold the office for a term of three years or 60 years, whichever is earlier.
  • They are not eligible for appointments for more than two terms.
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