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POCSO Act UPSC NOTE

 


  • The Parliament enacted the POCSO Act in 2012 to safeguard children below 18 years from sexual harassment, sexual assault, and child pornography.

  • Protection of Children from Sexual Offences Act (POCSO) Act stands for the Protection of Children from Sexual Offences Act.

  • The Act was passed in 2012 and falls under the jurisdiction of the Ministry of Women and Child Development.

  • In 2020, the government introduced the POCSO Act rules to make the punishment for child abuse more stringent, thereby enhancing the protection of children from sexual offenses.

Salient Features of POCSO Act 2012

  • The act defines children as any individual aged below 18 years of age

  • The problem of gender exclusion in the previous acts was ignored here altogether, as this act is gender-neutral in its stance.

  • There are multiple forms and acts of sexual abuse defined under this act that is not just limited to pornography, harassment, or penetrative/non-penetrative offences.

  • These acts would be considered ‘aggravated’ if the child is mentally ill and/or the perpetrator comes from a position of authority and/or trust like a family member, doctor, teacher, etc.

  • The prevention of ‘re-victimization’ of the child within the judicial system is of utmost importance, as the POCSO act allows a policeman to act under the role of a child protector throughout the investigation.

  • The process of investigation is to be made as child-friendly as possible, and justice to be served promptly within a year front the reporting of the incident.

  • The setting up of ‘Special Courts’ has been done under this act which will exclusively deal with such offences with the sensibility and sensitivity they need.

  • The central government is given the authority to make rules under the 45th section of the act.

  • The State Commissions for the Protection of Child Rights (SCPCRs) and the National Commission for the Protection of Child Rights (NCPCR) have been given the authority to monitor the implementation of the act’s provisions. Both of these authorities are statutory in nature.

  • The POCSO Act will override instances of inconsistencies with other provisions according to section 42A.

  • The act makes the reporting of a sexual offense mandatory. Misuse of these laws with the purpose of defamation of the person is punishable.

  • The Constitution of India promises every child the right to lead a life of dignity and the right to privacy under Article 21, the right to equality under Article 14, the right against discrimination under Article 15, and the right against exploitation under Articles 23 and 24.

  • It makes elementary education for children from age 6 to 14 a fundamental right under Article 21A.

  • Article 39(f) under the Directive Principles of State Policy obligates the State governments to make certain that equal opportunities and facilities are provided to children so as to enjoy their childhood and youth, free from any and all exploitation.

From the Article

  • According to the POCSO Act, a child is any person below the age of 18 years. Acts of penetrative sexual assault committed on children are considered criminal offences under this Act.

  • The definition of 'child' in POCSO is aimed at safeguarding children from penetrative sexual assault, irrespective of their consent, even if it is unequivocal and voluntary. It ensures protection for vulnerable children and prevents exploitation.

  • An analogy is drawn with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, where certain prohibited acts committed with knowledge of the victim's caste do not require separate proof of intention

  • Similarly, in POCSO, consent becomes irrelevant if the accused is aware of the victim being a child.

  • Some High Courts have not taken into account the age of consent and the mandatory legal presumption in favor of the prosecutrices (female plaintiffs) in cases involving minors. 

  • The difference in ages between the prosecutrix and the accused has also been overlooked.

  • There are recommendations to lower the age of consent from 18 to 16 years, but these have not been considered in certain cases. 

  • The question is raised whether interpretations of the law should prioritize the 'best interests of the child' and protect them from exploitation.

  • In some cases, minor girls became pregnant and terminated their pregnancies. 

  • The courts' examination of whether these girls truly understood the consequences of early pregnancies is questioned.

  • The High Courts have not declared any provision of the Indian Penal Code (IPC) or the POCSO Act unconstitutional, implying that cases of consensual sex involving minors are not being quashed.

  • Even if cases of consensual sex were to be quashed, police work would still continue, as they are required to register FIRs for missing children or any cognisable offences reported by parents or third parties.

  • Courts may be reluctant to convict accused persons in consensual sex cases due to the harsh minimum imprisonment of 10 years for penetrative sexual assault and 20 years for aggravated penetrative sexual assault. 

  • This may benefit the accused rather than serve as a deterrent.

  • The Bureau of Police Research and Development is directed to analyze cases of consensual sex, considering the age of the victims across states. 

  • The results could help the central government decide on reducing the age of consent.

  • One potential solution is to reduce the age of consent while allowing the judiciary some discretion to interpret consent based on the child's understanding of consequences, ensuring the 'best interest of the child' is considered.

  • While Parliament has the authority to reduce the age of consent, the Supreme Court's intervention is necessary to resolve the gap between the law's interpretation by investigating agencies and the differing interpretations by High Courts, especially concerning sexual intercourse with a minor wife as rape.

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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: POCSO Act UPSC NOTE
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