Protection of Children from Sexual Offences (POCSO) Act 

06 Oct Protection of Children from Sexual Offences (POCSO) Act 

This article covers “Daily Current Affairs” and the topic details “Protection of Children from Sexual Offences (POCSO) Act”. This topic has relevance in the “Polity and Governance” section of the UPSC CSE exam.

For Prelims:

Features of Protection of Children from Sexual Offences (POCSO) Act?
Amendments to the POCSO Act

For Mains:

GS2:  Polity and Governance

Why in the news?

In a recently disclosed report, the 22nd Law Commission, led by Justice Retd. Ritu Raj Awasthi strongly advises against changing the age of consent, currently 18 years, under the Protection of Children from Sexual Offences (POCSO) Act. 

Understanding the Protection of Children from Sexual Offences Act

• The POCSO Act is a landmark legislation in India, specifically addressing issues related to the sexual abuse of children. 
• Enacted in 2012, it is administered by the Ministry of Women and Child Development (MoWCD) and serves as a crucial legal framework to safeguard the rights and well-being of children.

Objective of the POCSO Act

• To protect children under the age of 18 from sexual assault, sexual harassment, and pornography-related offences. 
• Establishment of Special Courts to expedite the trial of such offences and address related matters and incidents.

Salient Features of the POCSO Act

• Gender-Neutral Definition: The POCSO Act adopts a gender-neutral approach by defining a child as “any person” below the age of 18, ensuring equal protection for all children.
• Classification of Offenses: The Act categorises various types of sexual abuse, including penetrative and non-penetrative assault, sexual harassment, and child pornography.
• Aggravating Circumstances: It considers sexual assault aggravated when certain circumstances are present, such as the victim being mentally ill or the offender holding a position of trust or authority over the child, such as a family member.
• Penalties for Trafficking: The Act holds individuals involved in trafficking children for sexual purposes accountable, treating such actions as abetment under its provisions.
• Attempted Offenses: Attempting to commit an offence under the Act is punishable, with penalties reaching up to half of the punishment prescribed for the actual commission of the offence.
• No Time Limit for Reporting: The Act empowers victims to report offences anytime, even years after the abuse.
• Mandatory Reporting: It imposes a legal duty on individuals aware of the offence to report child sexual abuse, with non-compliance leading to six months of imprisonment or a fine.

Amendments to the POCSO Act

In 2019, the POCSO Act underwent its first amendment with the following significant changes:

• Enhanced Punishments: The amendment introduced the death penalty for aggravated penetrative sexual assault of a child, aiming to deter offenders.
• Curbing Child Pornography: It authorised fines and imprisonment of up to 20 years to combat child pornography, further strengthening child protection measures.

Issues with Age of Consent

• Criminalising Exploitative and Consensual Relationships: The POCSO Act criminalises exploitative sexual practices and consensual sexual relationships involving adolescents, effectively silencing or regulating non-exploitative relationships.
• Desexualising Minor Girls: The law, which has given the age of consent to 18, disregards the possibility of voluntary sexual activity among minor girls, leading to their desexualisation.
• Ignoring Social Reality: The criminalisation of adolescent sexuality fails to acknowledge the social reality, with surveys showing a significant number of young girls engaging in sexual activity before turning 18.
• Government as Parens Patriae: Recent criminal law amendments in some states, such as Uttar Pradesh, intend to protect children from sexual offences but paradoxically end up prosecuting young individuals, acting as parents.

Judicial Interventions in Age of Consent Cases 

• Clarifying the Nature of Acts: The courts are trying to fix what the law got wrong. For example, the Madras High Court in 2021 said we should decide which actions should not be punished strictly under the law. 
• POCSO Misuse: Some courts agree that the Protection of Children from Sexual Offences (POCSO) Act is being misused by some people to harm others. 
• Age Difference Matters: In a 2020 Delhi High Court case, they tried to make it easier for someone accused of an “innocent yet unholy physical alliance” or when the girl agrees secretly, and the age gap is small, to get bail. 
• Age of Consent Questioned: Recently, the Karnataka High Court questioned if a 16-year-old girl’s consent when she is below 18 should be considered an offence under the law. They suggested the Law Commission rethink the age of consent for teenagers.

22nd Law Commission Recommendations: 

• Maintaining Age of Consent: The Law Commission strongly recommends retaining the age of consent at 18 years under the POCSO Act.

• Introduction of Guided Judicial Discretion: In cases involving tacit approval from children between 16 and 18, the Commission suggests introducing “guided judicial discretion” during sentencing as a more balanced approach.

• Amendment to Address Tacit Approval: Amendments to the POCSO Act should be considered to address situations involving tacit approval, particularly for adolescents aged 16 to 18. This would help distinguish between exploitative and consensual relationships.

• Caution in Handling Adolescent Relationships: The report emphasises the importance of courts exercising caution, even in “adolescent love,” where criminal intent may be absent.

Sources: Law Commission against lowering age of consent under POCSO Act – The Hindu

Q1. With reference to Protection of Children from Sexual Offences (POCSO) Act, consider the following statements: 

1. The POCSO Act is administered by the Ministry of Women and Child Development (MoWCD) to protect children from sexual abuse.
2. The primary objective of the POCSO Act is to safeguard children under the age of 16 from sexual assault, sexual harassment, and pornography-related offenses.
3. The Act categorizes various types of sexual abuse, including penetrative and non-penetrative assault, sexual harassment, and child pornography.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 and 3 only

(c) 1 and 3 only 

(d) None 

Answer: (c) 

Q2. Consider the following: 

1. Attempting to commit an offence under the POCSO Act is not legally punishable.
2. The Act allows victims to report sexual offences at any time, regardless of the time since the abuse occurred.
3. Mandatory reporting under the POCSO Act makes it a legal duty for individuals aware of child sexual abuse to report it, with penalties for non-compliance.

How many of the statements above are correct ?

(a) Only one 

(b) Only two 

(c) All three 

(d) None

Answer: (b)

Q3. What are the key issues associated with maintaining the age of consent at 18 under the POCSO Act? Analyze the potential consequences of lowering the age of consent.

Gaurav N