INTRODUCTION

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a seminal legislation that protects children from sexual assault, sexual harassment and pornography with a humane and multi-sectoral approach, which is supportive of the emotional, mental and physical needs and development of children under 18 years of age. Children, as the statement of Haim Ginott so aptly elucidates, are deeply influenced by the lessons they learn as part of the process of socialization- both primary and secondary, activities that they are made to perform by elders, punishments that are meted out to them, and violence that they encounter. When violence is of sexual nature, the impression that it makes on the child not only becomes serious and debilitating but also has the potential of undermining both immediate and future development. Therefore, a law that aims to protect children from sexual offences cannot and should not be oblivious to their rights to privacy, information, care, protection, and rehabilitation. The POCSO Act has six considerations noted in the beginning of the law, which exhibit its purposes and reasons for enactment that include, inter alia, action on the basis of prescription of the Constitution- clause (3) of article 15, adherence to India’s multilateral commitment linked to adoption of the United Nations Convention on the Rights of the Child, and protection of the best interests and right to privacy of the child. The pioneering nature of the law lies in many of its unique and child-friendly provisions, as some of the key ones elaborated below indicate. By replacing the term ‘rape’ with ‘penetrative sexual assault’ and defining the child as ‘any person below the age of eighteen years’, the POCSO Act makes the crime gender neutral.1Further, the law does not confine the meaning of penetrative sex to only penile penetration but broadens it to include oral sex and manipulation of body of a child through any other penetrative act (section 3). The law also criminalizes a range of actions- touching or making the child touch different parts of the body with ‘sexual intent’, short of penetration (section 7), and use of a child for pornographic purposes (section 13). The Act delineates multiple types of sexual abuses in precise terms that include individual as well as collective activities. Additionally, the offences of ‘aggravated’ penetrative and nonpenetrative sexual assault, committed by persons in authority or position of power with respect to a child, have been made more serious and attract stronger punishments including Until 2012, sexual offences against children were covered under various sections of the Indian Penal Code (IPC)namely 375(rape) which does not protect male victims, 376 (punishment of rape), 354 (outraging modesty of awoman) and 377 (unnatural offences). 14 Status of POCSO Cases and Dynamics of its Implementation in Delhi imprisonment for life and even death, following enactment of the Protection of Children from Sexual Offences (Amendment) Act, 2019. The Act categorizes several actions with sexual intent as sexual harassment, which include, inter alia, uttering any word or making any sound, making any gesture, showing any object to a child for pornographic purposes, and repeatedly or constantly following, watching or contacting a child either directly, electronically or through other means. The POCSO Act is quite distinctive in that it penalizes ‘abetment of’ and ‘attempt to’ commit any of the offences listed in the Act. Another extraordinary clause is in regard to ‘presumption as to certain offences’; as unlike general rule of ‘innocent until proven guilty’, the burden of proof lies on the accused under the principle of ‘guilty until proven innocent’. Also, it is a crime to make a false complaint or provide false information about sexual offences with the intention to humiliate, extort or threaten a person or victimize a child.

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Background

Two dates of the year 2012 - 19 June and 14 November related to the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) are path-breaking in the discourse and action on child rights in India. While on the first date the POCSO Act received the assent of the President of India, it came into force on the latter date making a new beginning of our journey for delivering justice to thousands of girls and boys who become victims of child sexual abuse every year. Although implementation of the law has attracted critical attention of jurists, academics, researchers, activists and concerned citizens, and there have been efforts to add strength to it through judicial, legislative, executive and civil society actions; dynamic nature of the law always creates space for further action and debate aiming at effectiveness and efficiency. There cannot be a better way to understand present dynamics and reorient future actions against child sexual offences than to critically examine implementation of the law periodically.