Supreme Court Ruling Strengthens POCSO Act Enforcement

Context:

The Supreme Court of India has recently strengthened the enforcement of the Protection of Children from Sexual Offences (POCSO) Act, 2012, by ruling that watching or possessing sexually explicit material involving minors is illegal, irrespective of whether it is shared or transmitted. This decision overrides a previous judgment from the Madras High Court, which had concluded that private viewing of child pornography did not constitute an offence if there was no further distribution.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. Supreme Court Ruling on Child Pornography:
2. About Protection of Children from Sexual Offences (POCSO) Act, 2012
3. Contention/Criticisms around implementation of POCSO
4. About POCSO Amendment Act 2019

Supreme Court Ruling on Child Pornography:

• Terminology Change:
  • The Supreme Court has urged the Union government to replace the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM), to better reflect the nature of abuse and exploitation.
• Importance of the Change:
  • The term pornography often implies consensual adult activities, which is not accurate in cases of child abuse and exploitation.

Expansion of Section 15 of the POCSO Act, 2012:

• Stricter Interpretation:
  • The SC provided a stricter interpretation of the “storage of child pornography” under Section 15 of the POCSO Act, which previously focused on storage for commercial purposes.
  • The new interpretation outlines three key offences under this section.
• Offences Under Section 15:
  1. Section 15(1):
     • Individuals who store or possess child pornography must delete, destroy, or report it. Failure to do so is punishable.
  2. Section 15(2):
     • Possession with the intent to transmit or display (except for reporting) is a chargeable offence.
  3. Section 15(3):
     • Storing child pornography for commercial purposes incurs the most severe penalties.
• Inchoate Offences:
  • The court classified these actions as inchoate offences, which are preparatory steps toward committing a further crime.

Broader Definition of Possession:

• Constructive Possession:
  • The definition of possession now includes constructive possession, where an individual may not physically hold the material but still has control and knowledge over it.
• Example:
  • Watching child pornography online without downloading it is still considered possession.
• Accountability for Links:
  • If a person receives a link to child pornography but does not report it, they can still be held accountable, even if they did not retain the material.

Comprehensive Sex Education:

• Court’s Call for Action:
  • The SC urged the government to promote comprehensive sex education in schools and society to dispel misconceptions and reduce the stigma surrounding sexual health.
• Focus Areas:
  • This education should include themes such as consent, healthy relationships, gender equality, and diversity.

Awareness of the POCSO Act, 2012:

• Sections 43 and 44:
  • The court emphasized the need for the central and state governments, along with the NCPCR, to promote widespread awareness of the POCSO Act.
• Health and Sex Education:
  • An expert committee should develop comprehensive programs to enhance awareness about health, sex education, and the POCSO Act among children.

Support Systems for Victims:

• Psychological and Educational Support:
  • The ruling stressed the need for psychological counseling, therapeutic interventions, and educational support for victims of CSEAM.
• Offender Rehabilitation:
  • Cognitive Behavioural Therapy (CBT) could be used to address the cognitive distortions that lead to abusive behavior.

About Protection of Children from Sexual Offences (POCSO) Act, 2012

• The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
• The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
• The Act provides for a variety of offences under which an accused can be punished. It recognises forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include:
  • Penetrative Sexual Assault: Insertion of penis/object/another body part in child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
  • Sexual Assault: When a person touches the child, or makes the child touch them or someone else
  • Sexual Harassment: passing sexually coloured remark, sexual gesture/noise, repeatedly following, flashing, etc.
  • Child Pornography
  • Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault

Salient features of the Act

• The act is gender-neutral for both children and for the accused.
• With respect to pornography, the Act criminalises even watching or collection of pornographic content involving children.
• The Act makes abetment of child sexual abuse an offence.
• Defines a child as any person below eighteen years of age
• Provides for mandatory reporting of sexual offences, keeping with the best international child protection standards.
• Police cast in the role of child protectors during the investigative process: The police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child.
• Provisions for the medical examination of the child in a manner designed to cause as little distress as possible
• Provision of Special Courts: that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner.
• Timely disposal of cases: A case of child sexual abuse must be disposed of within one year from the date the offence is reported.
• Recognition to a wide range of form of sexual abuse against children: as punishable offences.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• Child-friendly process: It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The Act has been criticised as its provisions seem to criminalise consensual sexual intercourse between two people below the age of 18.

Contention/Criticisms around implementation of POCSO

Criticism in Definition of child

• The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and doesn’t take into account people who live with intellectual and psycho-social disability.
• A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped.
• The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.”
• SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.

Issue with the Mandatory Reporting feature

• According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.
• Many child rights and women rights organisation has criticised this provision. According to experts, this provision takes away agency of choice from children.
• There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate.
• Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention.
• It contradicts the right to confidentiality for access to medical, and psychological care.

Contradiction with the Medical Termination of Pregnancy Act, 1971

• The POCSO Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation.
• Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police.
• However, under the MTP Act, it is not mandatory to report the identity of the person seeking an abortion.
• Consequently, service providers are hesitant to provide abortion services to girls under 18.

Issue with Legal Aid

• Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure.
• In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits.
• Thus, the interest of the victim often go unrepresented.

Issue with Consent

• The law presumes all sexual act with children under the age of 18 is sexual offence.
• Therefore, two adolescent who engage in consensual sexual act will also be punished under this law.
• This is especially a concern where adolescent is in relationship with someone from different caste, or religion.
• Parents have filed cases under this Act to ‘punish’ relationships they do not approve of.

About POCSO Amendment Act 2019

• Increases the minimum punishment (including death penalty) for penetrative sexual assault, aggravated penetrative sexual assault.
• The earlier amendment allowed the death penalty only in cases of sexual assault of girls below 12 years but now it will be applicable to boys also.
• Adds assault resulting in death of child, and assault committed during a natural calamity, or in any similar situations of violence into Aggravated penetrative sexual assault.
• Tightened the provisions to counter child pornography. While the earlier Act had punishment for storing child pornography for commercial purposes, the amendment includes punishment for possessing pornographic material in any form involving a child, even if the accused persons have failed to delete or destroy or report the same with an intention to share it.
• The Act 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.

-Source: The Hindu