This Article is written by Afifa Shamim from Shyam Bazar Law College, Kolkata, West Bengal.


Introduction

The word POCSO is not very familiar with each and every human being out there in the world. The word POCSO stands for “Protection of Children from Sexual Offences Act, 2012’’. This act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child. The act defines a child as any person below the age of eighteen years and regards the best interests and well being of the child as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography and deems sexual assault to be aggravated under certain circumstances.

The punishments listed under POCSO are as follows:-

1- Penetrative sexual assault (punishment) – Not less than seven years of imprisonment or life imprisonment or fine according to section 4 of the act.

2- Aggravated penetrative sexual assault (punishment) – Not less than 10 years or life imprisonment or fine according to section 6.

3- Non- penetrative sexual assault (punishment) – Not less than three years of imprisonment which may extend to five years or fine according to section 10.

4- Aggravated non-penetrative sexual assault – Not less than five years of imprisonment which may extend to seven years or fine according to section 10 of the act.

5- Sexual assault – Three years of imprisonment or fine according to section 12 of the act.

6- Use of minor for pornographic purposes – Five years of imprisonment and fine and in event of school conviction this may be increased to seven years of imprisonment and fine according to section 14.

7- Attempt of offence – One year of imprisonment or fine according to section 18 of the act.

8- Abetment of offence – One year of imprisonment or fine according to section 17 of the act.

9- Failure to report an offence – Six months of imprisonment or fine according to section 21 of the act.

The act prescribes a child-friendly reporting and investigating system. At every step, the mental condition of the abused child is given an extreme and yet much-needed devotion. Special juvenile police unit as well as the local police are authorized to take reports of sexual child abuse under this act. The act designates special courts to try matters of child sexual abuse. For the purposes of providing a speedy trial, the state government shall in consultation with the chief justice of the high court by notification in the official gazette designate for each district a court of session to be a special court to try the offences under the act.


Recent Case Under POCSO

The Supreme Court on Wednesday 19th of January 2021 stated the controversial judgment of the Bombay High Court which held that pressing the breast of a 12-year-old child without removing her top will not fall within the definition of sexual assault under section 7 of the POCSOAct. The stay was ordered by a bench headed by Chief Justice of India, SA Bobde after Attorney General KK Venugopal mentioned that matter submitting that it is a very disturbing conclusion by Bombay High Court. The High Court held that the pressing of a breast of a child without removing her clothes will only fall within the definition of outraging the modesty of woman under section 354 of Indian Penal Code, IPC.

The judgment invited scathing criticism from legal experts. The judgment of the court left each and everyone is shocked as it stated that a touch which is done on the top of clothes will not be considered as sexual assault, whereas in the eyes of locals as well as law a touch has inappropriately done or without the consent of the person is considered to be as sexual assault. A touch that discomforts the person be it skin to skin touch or touch on top of the clothes should be considered as a sexual assault and if this was done to a minor child then it should come under the POCSO act which is specially made for the protection of the children. The judgment of the court left everyone in utter shock. This judgment is further challenged by several organisations including the Youth Bar Association of India where the petitioners said they were badly perturbed to note that the verdict contained several observations about the victim child’s modesty which were both derogatory and defamatory.

The present legislation for criminalizing sexual offences against children was a much-needed piece of legislation.

“ CHILDHOOD should be carefree, playing in the sun, not living a nightmare in the darkness of the soul” by Dave Pelzer is rightly said as the childhood of each and every child should be happy and pleasantly full of joy and goodness rather than being it full of stress and torture. Henceforth, the judgment given by the court is not right just as a touch in an appropriate manner without the consent of the person should always be regarded as a sexual assault be it with the clothes on or off the person who is being touched.

© Kanoon Jaano