- IT’s Input
- About The Protection of Children from Sexual Offences (Amendment) Bill, 2019
- Provision for Death Penalty
- Argument against the Death Penalty
- Against Death Penalty
- Data on Child Abuse
- Criminal Law (Amendment) Act, 2018 and POCSO Act
[Editorial Notes] A point to ponder over in the POCSO Bill
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- Recently, the Parliament passes the Protection of Children from Sexual Offences (Amendment) Bill, 2019.
- The Bill is welcome in certain respects as it specifically defines what child pornography is and widened the ambit of ‘Aggravated sexual assault’.
- In the Bill, ‘using a child for pornographic purposes’ and for ‘possessing or storing pornography involving a child’ is punishable.
About The Protection of Children from Sexual Offences (Amendment) Bill, 2019
The Bill amends the Protection of Children from Sexual Offences Act, 2012. The Act seeks to protect children from offences such as sexual assault, sexual harassment, and pornography.
Penetrative sexual assault:
- Under the Act, a person commits penetrative sexual assault, the punishment for such offence is imprisonment between seven years to life, and a fine.
- The Bill increases the minimum punishment from seven years to ten years.
- It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
Aggravated penetrative sexual assault:
- Aggravated penetrative sexual assault includes cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.
- It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others.
- The Bill adds two more grounds to the definition of aggravated penetrative sexual assault. These include: (i) assault resulting in death of child, and (ii) assault committed during a natural calamity, or in any similar situations of violence.
- Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine.
- The Bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
Aggravated sexual assault:
- Under the Act, sexual assault includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration.
- Aggravated sexual assault includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others.
- The Bill adds two more offences to the definition of aggravated sexual assault. These include: (i) assault committed during a natural calamity, and (ii) administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.
- Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification.
- The Act also penalises persons who use children for pornographic purposes resulting in sexual assault.
- The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.
Storage of pornographic material:
- The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both.
- The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both.
- In addition, the Bill adds two other offences for storage of pornographic material involving children. These include: (i) failing to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it.
Provision for Death Penalty
- In Aggravated penetrative sexual assault crime, the Bill provides for maximum punishment of death penalty.
- The Bill justifies death punishment by referring to the judgments of the Supreme Court in Machhi Singh (1983) and Devender Pal Singh (2002) in which the court held that the death penalty can be awarded only in rarest of rare cases.
Argument against the Death Penalty:
- The perpetrators of abuse are often family members and having such penalty may discourage the registration of the crime itself.
- Also, it may threaten the life of the minor as the maximum punishment for murder is also the death sentence.
- Many a time, the Government portrays itself to be strict by introducing the death penalty, which largely diverts attention from the core issues of infrastructure, procedural lapses and trial delays.
- Moreover, the death penalty will not result in reduction of such cases. For instance, a year-and-a-half after the passage of the Criminal Law (Amendment) Bill, 2018, which introduced the death penalty for rape of a minor girl, such incidents have not been controlled.
- Globally, there is research to support the view that despite stringent punishments, there is no fall in the rate of commission of crimes.
- The 262nd Report of the Law Commission of India, 2015, also provides for abolition of the death penalty except in terror cases.
- The Justice J.S. Verma Committee, constituted in 2013 in the aftermath of the Nirbhaya case, was against the imposition of death penalty in rape cases.
Data on Child Abuse
- More than 24,000 FIRs have been filed for the Sexual crimes against children between January and June 2019.
- According to National Crime Records Bureau data of 2016, the conviction rate in POCSO cases is 29.6% while pendency is as high as 89%.
- The prescribed time period of two months for trial in such cases is hardly complied with.
- After noting the delay in trials, the Supreme Court recently directed the Central Government to set up special courts in each district having more than 100 pending cases under the POCSO Act.
Criminal Law (Amendment) Act, 2018 and POCSO Act
- The Criminal Law (Amendment) Act, 2018 introduced the death penalty for rape of girls below the age of 12.
- Now, if the rape of girls below the age of 12 is also criminalized in any other act such as POCSO act, then the offender will be punished under the Act, whichever provides for greater punishment.
- This has created an issue as the effect of such an amendment is death penalty for rape of minor girls but not for assault against minor boys.
- The proposed Bill is a gender neutral and provides for the death penalty for aggravated penetrative sexual assault of a child.
- The Bill is a step forward in preventing child abuse but the consequences of providing for the death penalty need to be closely observed.