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The Protection of Children from Sexual Offences (Amendment) Bill, 2019

The Protection of Children from Sexual Offences (POCSO) (Amendment) Bill, 2019 was introduced on 18 July 2019 in Rajya Sabha by the Ministry of Women and Child Development. The bill amends the Protection of Children from Sexual Offences Act, 2012. Additionally, seeks to shield children from offences like sexual harassment, sexual assault, and pornography. It seeks to provide harsh punishment i.e., the death penalty for committing sexual crimes against children.

The features of the bill are-

Penetrative sexual assault According to this act, a person commits “penetrative sexual assault” if he:
  • enters his penis into the vagina, urethra, anus, or mouth of a child, or
  • makes a child do the same, or
  • penetrate or inserts any other object into the child’s body,
  • applies his mouth to the body parts of the child
The punishment for such wrongdoing is incarceration (means imprisonment) up to 7 years and a fine. As per the bill, the minimum imprisonment for 7 years can be increase up to 10 years. If a person commits penetrative sexual assault on a child below 16 years of age, he will be punishable with incarceration between 20 years to life along with a fine.
Aggravated penetrative sexual assault The Act states certain action as “aggravated penetrative sexual assault”. These involve cases when a member of the armed forces, a police officer, or a public servant commits such crime. Also, it covers cases where the evil - doer or offender is a relative of the child or if the child becomes pregnant or the assault harm the sexual organs of the child, among others. The bill attaches two more grounds to the definition of aggravated penetrative sexual assault.
These include:
  • sexual assault committed during a natural calamity, or in any similar situations of violence .
  • assault resulting in death of a child,
Aggravated sexual assault Under this bill, “sexual assault” involves actions where a person touches the penis, vagina, breast or anus of a child with sexual intention without penetration. “Aggravated Sexual assault” contains cases where the wrongdoer is in relation with the child or if the assault harm the sexual organs of the child. There are two more offences to the definition of serious sexual assault such as-
  • administrating or help in administering any chemical substance or hormone, to a child for the intention of getting early sexual maturity.
  • assault committed during a natural catastrophe,
Pornographic purposes As per the act, if any person uses a child in any kind of media for the purpose of sexual gratification then person will be a guilty of using a child for pornographic purposes. Further, the Act also penalises persons who use children for obscene or pornographic purposes resulting in sexual assault. The Bill explains child pornography as any visual depiction of sexually explicit content or conduct involving a child including video, photograph, digital or computer-generated image similar to an actual child. In addition, the Bill enhances the penalty or punishments for some offences as shown in Table below.

Punishment for offences for using child for pornographic purposes

Offence POCSO Act, 2012 2019 Bill
Use of child for pornographic purposes Maximum: 5 years Minimum: 5 years
Using child for pornographic purposes resulting in penetrative sexual assault
  • Minimum: 10 years
  • Maximum: life imprisonment
  • Minimum: 10 years
    (in case of child below 16 years: 20 years)
  • Maximum: life imprisonment
Using child for pornographic purposes resulting in aggravated penetrative sexual assault Life imprisonment
  • Minimum: 20 years
  • Maximum: death or life imprisonment.
Use of child for pornographic purposes resulting in sexual assault
  • Minimum: Six years
  • Maximum: Eight years
  • Minimum: Three years
  • Maximum: Five years
Use of child for pornographic purposes resulting in aggravated sexual assault
  • Minimum: 8 years
  • Maximum: 10 years
  • Minimum: 5 years
  • Maximum: 7 years
Note:
Punishment for using child for pornographic purposes resulting in any kind of sexual assault is in addition to minimum 5 years for use of child for pornographic Intention.

Sources Protection of Children from Sexual Offences Act, 2012; Protection of Children from Sexual Offences (Amendment) Bill, 2019;
Storing up pornographic material The Act penalises storage of pornographic content or material for commercial intention with a punishment up to 3 years, or a fine, or both. Additionally Bill adds two other crime or offences for storage of pornographic content involving children. These include:
  • failing to report, delete or destroy pornographic material involving a child,
  • allocating, displaying and transmitting such material except for the objective of reporting it.

Significance of the amendment bill

  • This amendment leads to sexual offences reduction against child because bill has restrictive provision due to strong penal provisions included in the Act.
  • This bill serves the interest and welfare of child and provide much needed relief in time of distress and ensure dignity.
  • This bill looks into the sexual assault of minor boys and girls, both so it is gender-neutral.
  • The bill includes the capital punishment for aggravated sexual assault on children to create deterrent effect (appealing SC judgement in Devender Pal Singh (2002) and Machhi singh (1983) cases)

Some dissenting voices over capital punishment or death penalty

  • Justice J.S. Verma against the capital punishment provision result of the ‘Nirbhaya gang-rape case’
  • If a culprit of the offence is a close family member then the family may not file FIR because of deterrance due to the death penalty
  • The death penalty has no restrictive impact. Research shown that despite strict punishments like death, there is no reduction in the crime rate.
  • Law Commission against capital punishment except in terror-related cases
  • It largely distracts attention from the main issues of procedural lapses, trial delays, infrastructural apathy and conveniently run away from the fact that ‘it is the certainty of punishment rather than its cruelty which has deterrence in a real sense’.