What is the POCSO Act and how is it used: A guide
The Protection of Children from Sexual Offences (POCSO) Act has been in the news recently, after Bombay High Court Justice Pushpa Ganediwala’s controversial judgments in child sexual abuse cases. Back in 2019, the POCSO Act garnered interest when an amendment was made to it when minimum punishment for aggravated as well as penetrative sexual assault on children below 16 years was increased from 10 to 20 years, extendable to life imprisonment or death.
But what makes the POCSO Act different from the Indian Penal Code? What offences does it cover? And when is it applicable? Here is a simple explainer.
Significance of the POCSO Act
The POCSO Act was enacted in 2012 and is gender neutral — it recognises that boys can be victims of sexual violence as well. It defines a child as someone under the age of 18. The Indian Penal Code does not recognise that sexual assault can be committed on boys.
The Act also 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 recognises 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.
The POCSO Act also specifically lays down stringent punishment for exposing children to, or using them to create child sexual abuse material (CSAM, also referred to as child pornography) under sections 13, 14, and 15.
While POCSO does not explicitly recognise grooming, experts say that section 11 of the Act can be interpreted to recognise and criminalise it wherein, it . Grooming involved acts of establishing, building a relationship with a child either in person or online so as to facilitate either online or offline sexual contact with the child, section 67(b) of the Information Technology Act does criminalise it.
The law lays down the procedures for reporting sexual crimes against children. 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.
This child protection law is also unique because it places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC.
Child friendly procedures
Another hallmark of the POCSO Act was that it set up procedures to make the criminal justice system child-friendly and prevent re-traumatisation. This includes everything from how the statement of the child should be recorded, to the medical examination, to designation of special child friendly courts.
Under provisions of the POCSO Act, a child is entitled to the following:
— Getting their statement recorded at their residence or a place of their choice, and preferably by a woman police official or an official not below the sub-inspector rank, in civilian clothes.
— The police official should ensure that during the investigation, the child shouldn’t come in contact with the accused.
— The child cannot be detained at the police station at night, and his/her identity should be protected from the public and media unless directed otherwise by a Special Court.
— If the survivor is a girl, the medical examination should be done by a woman doctor, and the examination can only be done in the presence of a parent, or a person the child trusts. If neither of the two are there, then the examination should be done in the presence of a woman nominated by the head of the medical institution.
The special courts stipulated under the POCSO Act are also to be child friendly. There are provisions such as making a child-friendly atmosphere in the court premises by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present; allowing frequent breaks for the child during the trial; and ensuring that the child does not have to face the accused during evidence collection as well as cross examination.
Based on the Special court’s discretion, proceedings can also happen in-camera, i.e., no one except those related to the case can be present in court, and in presence of the child’s parents or another adult he/she trusts.
There are also provisions as well as guidelines if the case requires support from NGOs or social workers as well as experts (psychologists, interpreters and so on) in the pre-trial and trial stages for the child; as well as guidelines for interviewing the survivor, including special needs children and children with disabilities.
When is POCSO used?
Sections of the POCSO Act may be added by the police in the First Information Report (FIR) whenever a sexual offence is committed against a child. While special laws override the IPC, sections of both are often mentioned in the FIR. For instance, an FIR would book an accused under section 376 (rape) of the IPC as well as relevant sections of the POCSO Act.
Punishments under POCSO are more stringent than under IPC.
It is important to remember that POCSO is not just applicable in cases of physical sexual crimes, but also ones that happen over the internet. This would include offences such as possessing CSAM, using children for the purposes of creating CSAM, or exposing children to pornography or CSAM. In such cases, POCSO may be used along with provisions of the Information Technology Act.