What is the punishment for Pocso in India?

About POCSO Act:

• Formulation: Enacted in 2012, it is the first complete law in India that addresses child sexual abuse expressly. The Ministry of Women and Child Development (MoWCD) is responsible for its administration.
• The POCSO Act, which was passed as a result of India’s 1992 adoption of the UN Convention on the Rights of the Child, went into force on November 14, 2012.According to the Act, a child is any anyone under the age of eighteen. The Act stipulates penalties based on the seriousness of the offence.
• The Act’s goals were to shield minors under the age of eighteen from sexual assault, harassment, and pornographic acts. It also established Special Courts to hear cases involving these offences and associated situations.

Important aspects of the Act

• Law that is gender-neutral: By defining a child as “any person” under the age of 18, the POCSO Act creates a framework that is legally accessible to victims of child sexual abuse that is gender-neutral.
• No time limit: A victim may come forward with a report of abuse at any point in time, even years after the abuse has taken place.
• Mandatory reporting: The Act also imposes a legal obligation on anybody who knows about the offence to report any instances of sexual abuse. If he or she doesn’t, they risk paying a fine or going to jail for six months. A plan to establish 1,023 FTSCs nationwide for the quick resolution of ongoing rape cases under the Indian Penal Code (IPC) and crimes under the POCSO Act was authorised by the government in 2019.

Amendment to the Act

In 2019, the Act had a first review and amendment to strengthen the penalties for particular offences, with the goal of discouraging abusers and guaranteeing a respectable upbringing.This amendment strengthened the penalty for aggravated penetrative child sexual assault by adding the death sentence.
In addition, it forbids the use of child pornography and allows for fines and sentences of up to 20 years in jail.

The POCSO Rules, 2020 have also been announced by the Indian government: –

Features comprised:

• Neutral in Gender Nature: The Act acknowledges that sexual abuse of any kind, regardless of the victim’s gender, can happen to both boys and girls.This is consistent with the ideas that laws shouldn’t discriminate against gender and that all children have the right to be shielded from sexual abuse and exploitation.

• Ease of Reporting Cases: The POCSO Act has made it specifically illegal to fail to disclose instances of institutional or individual sexual exploitation of minors, therefore there is currently enough public awareness of the need to report such cases. Because of this, it is now more difficult to conceal crimes against minors.

• Explicit Definition of Terms: It is now illegal to store child pornographic materials.Furthermore, the Indian Penal Code’s vague definition of “outraging modesty of a woman” is not the same as the clear description of “sexual assault,” which has a heavier minimum sentence.

What problems and obstacles does the POCSO Act present?

Problem with the Study:

• Low Representation of Women in the Police Force: The POCSO Act allows a woman sub-inspector to record the affected child’s statement in the child’s home or preferred location. However, with only 10% of police officers being female and many police stations having very few female employees, it is practically challenging to adhere to this condition.

• Investigational Gaps: Despite the option for audio-video statement recording, reports of investigational gaps and, in certain circumstances, the improper preservation of crime scenes persist. The Supreme Court ruled in Shafhi Mohammad v. The State of Himachal Pradesh (2018) that the investigating officer has a responsibility to record the crime scene using photographs and videos and to keep them as evidence in cases of heinous crimes. \

• Delayed Charge Filing: In accordance with the POCSO Act, the investigation of a case under the act must be finished within one month of the offence being committed or the day the offence was reported. But in reality, it frequently takes longer than a month to finish an investigation for a variety of reasons, including a lack of sufficient resources, hold-ups in getting forensic evidence, or case complexity.

According to Courts, in 2023:

• Under the Protection of Children from Sexual Offences (POCSO) Act, 2012, at least three separate High Courts have either dismissed First Information Reports (FIRs) and ongoing criminal cases or exonerated those who were accused in 2023. Because the accused and victim had consensual intercourse, one High Court released the accused on bail.
• Cases of Consensual Sexual Intercourse Quashed: On July 12, the Delhi High Court granted bail to a 25-year-old accused, citing the 15-year-old girl’s independent elopement as evidence against the prosecution’s claim of sexual assault.
  A 25-year-old man’s conviction under POCSO was overturned by the Bombay High Court on July 10 due to the man’s consenting sexual relations with the 17-year-old girl. The girl had aborted her child following the accused’s detention.
• In addition to dismissing a POCSO-registered FIR and any ensuing criminal proceedings on July 7, the Madras High Court also ordered the Director General of Police to provide the Court with the reports of all such outstanding cases.
• Given that the sexual contact was voluntary, the Madhya Pradesh High Court on June 27 dismissed all criminal proceedings and the FIR filed under the POCSO. The accused (who was once her coach) was not mentioned by age in the ruling.
• The Court suggested that the Indian government think about lowering the prosecutrix’s consent age from 18 to 16.

What constitutes consent?

• Any anyone under the age of eighteen is considered a “child” under POCSO. Under POCSO, acts of penetrating sexual assault against minors are crimes. Protecting children from penetrating sexual assault, regardless of whether or not they give clear and voluntary consent, is the goal of both the POCSO’s definition of “child” and Section 375 of the IPC, which states that “sexual intercourse, whether with or without her consent, is rape if she is under 18 years of age.”
• Otherwise, consent for a child of any age could be interpreted based on the third part of Section 90 of the IPC, which states that it is not considered consent “unless the contrary appears from the context, if it is given by a person who is under 12 years old.”
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be compared, as it does not require separate proof of intention when specific illegal acts are carried out knowing the victim’s caste. The clause was added especially to protect vulnerable populations. Consent should also be useless if the accused knew the victim was a kid and the child was to be considered as a separate and vulnerable category.
• What will be the minimum age of consent and who will establish it if the judiciary decides to invalidate all “consensual sex” cases? Is it possible to compromise the goals of POCSO in order to achieve Section 90 of the IPC, a universal law that admits consent from minors even less than 12 years old? Are these interpretations considered to be in the child’s “best interests”? Two of the four examples mentioned above involved young girls who had been pregnant and then decided to end it. Did the courts investigate if these girls were truly aware of the risks associated with being pregnant young?
• Close the gap as soon as possible. Not a single POCSO or IPC provision has been ruled illegal by the High Courts. As a result, the police may still have to register FIRs and carry out their investigation whenever a child disappears or a cognisable offence is reported by parents or any other third party, even if the cases of consenting sex are overturned.
• Parliament has the authority to lower the age of consent, but the Supreme Court needs to intervene immediately to close the legal gap between the established law—as the investigative agencies understand it—and the various interpretations made by the High Courts.
• This becomes significant in light of the 2017 ruling by the Supreme Court in Independent Thought v. Union of India, which maintained that even having sex with a minor wife qualifies as rape.

POCSO Act implementation challenges:

Sexual abuse is on the rise in India, where one in two children report having experienced it, according to a new survey.

• Limited POCSO courts: Not every district has designated a POCSO court. Only 408 POCSO courts had been established in 28 States as of 2022 as a result of the government’s Fast Track Special. Courts Programme. Additionally, there aren’t enough Special Public Prosecutors assigned especially to deal with POCSO cases.
• Overly long delays: The Act is implemented too slowly as a result of the slow speed at which Special Courts are established, the length of time it takes to investigate and file charge sheets, and the fact that support persons for child victims are typically not appointed. With over three-fourths (77.77%) of all POCSO cases filed between November 2012 and February 2021 still outstanding, Uttar Pradesh has the highest pendency rate.
• Poor disposal rate: Chandigarh and West Bengal are the only states where the average time taken for convictions is within a year. The average time taken to resolve a POCSO case is 509.78 days, whereas the Act requires that such cases be resolved within a year. High acquittal rate: 44% of POCSO cases result in acquittals, whilst only 14.03% of convictions occur; that is, in a POCSO case, there are three acquittals for every conviction. In contrast, 96% of cases filed under the POCSO Act, 2012 had an accused who was known to the minor victim, according to data released by the National Crime Record Bureau (NCRB) in 2021. The percentage of cases rose to 8.7% in 2022.
• Lack of support personnel: According to the Supreme Court, in 96% of cases, the victim did not receive a support person.
• Lack of awareness: In India, the POCSO Act is still largely unknown to the general public.
  

New challenges: 

• With the advent of new forms of cybercrime following the Covid-19 outbreak, incidents of child abuse have also increased dramatically.
• POCSO also addresses another issue related to child marriage: men who marry girls younger than 14 years old are subject to prosecution under the Protection of Children From Sexual Offences (POCSO) Act, and men who marry girls between the ages of 14 and 18 are subject to prosecution under the Prohibition of Child Marriage Act (PCMA), 2006.
• We have seen numerous instances of other parties abusing this Act, and as a result, innocent individuals are also imprisoned. The age limit needs to be changed by this Act.

Note

• Intercourse between a minor and an adult is illegal under the POCSO Act of 2012. A minor’s assent is not regarded as legitimate under the law.
• POCSO defines sexual assault as a cognisable, non-bailable offence. This implies that an arrest can be made by the police without a warrant.
• Therefore, when underage girls are involved in child marriage, there is an implicit assumption of sexual abuse.
• Non-penetrative sexual assault is punishable by a minimum three-year sentence, which can be increased to five years with a fine.
• Reference http://chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://nhrc.nic.in/sites/default/files/10_PROTECTION%20OF%20CHILDREN%20-%20SEXUAL%20OFFENCES.pdf