POSCO ACT RECENT UPDATES AND CASES

By Sahib Gambhir

On 14^th November, 2012, the Protection of Children from Sexual Offences Act (POSCO ACT) came into force with the aim to deal with offences like sexual abuse of child and child pornography.

The main focus of the Act through its 46 provisions was to increase the scope of reporting offences which were happening against children and which were not covered under Indian Penal Code previously.

The Act also expanded the criminal penalty for aggravated penetrative sexual assault and included punishment for abuse done by a person who is in position of trust or authority like public servants, police, management or staff of a religious institution or an educational institution.

The POSCO Act was made with a purpose for providing protection to the child at each and every of judicial process and that’s why covers and defines wide range of aspects like sexual assault, sexual harassment, child pornography, etc. it safeguards the interest and wellbeing of the children.

It also provides various procedures for reporting cases and sets out punishment in case of false complaint or failure to report a case. It also provides the procedure for recording the statement of a child by the police or court in best friendly way possible and sets out provisions for speedy trials.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019:

Ms. Smriti Zubin Irani, Minister of Women and Child Development, introduced the Protection of Children from Sexual Offences (Amendment) Bill, 2019 in Rajya Sabha on 18^th July 2019.

Lok Sabha om 1^st August 2019 passed the bill and then on 16^th August 2019, the Minister of Women and Child Development notified the Protection of Children from Sexual Offences (Amendment) Act, 2019 (Amendment Act).

This amendment made some changes and modified the Protection of Children from Sexual Offences Act, 2012(POSCO Act), with a view to improve or provide for minimum imprisonment periods for certain number of offences in order to dissuade the perpetrators and to make sure the safety and security of children.

SOME MAJOR CHANGES BROUGHT BY AMENDMENT ACT, 2019:

I. Penetrative Sexual Assault: Under the POSCO Act the offence of “Penetrative Sexual Assault” is committed when a person; (a) penetrates his penis into the vagina, mouth, urethra or anus of a child, or (b) compels the child to do the same, or (c) any object is inserted into child’s body, or (d) person applies his mouth to a child’s body parts.^[1]

The POSCO Act provided punishment for such acts between seven years to lifetime imprisonment and a fine.^[2] The Amendment At modified the punishment and increased it from seven years to ten years and furthers provides that if this offence is committed by a person on a child who is below the age of 16 years then the person is punishable with the imprisonment of 20 years to lifetime and a fine.^[3]

II. Aggravated Penetrative Sexual Assault: POSCO Act defines certain actions as “Aggravated Penetrative Sexual Assault”. These actions include cases where a police officer or a member of the armed forces, or a public servant commits an offence of Penetrative Sexual Assault on a child.

The Act is wide enough to cover cases where the relative of the child is offender and also this Aggravated Penetrative Sexual Assault also includes cases where sexual organs of the child is injured by such assault or may be the child becomes pregnant.^[4]

The Amendment Act of 2019 added two more grounds to the definition of Aggravated Penetrative Sexual Assault. These two grounds are; (a) assault which resulted in the death of child, and (b) or any assault which may be omitted during natural calamity or in any such similar circumstances.^[5]

POSCO Act provided the punishment for Aggravated Penetrative Sexual Assault between 10 years to lifetime imprisonment and a fine but the Amendment Act modifies this punishment and now a person who commits Aggravated Penetrative Sexual Assault is punishable with imprisonment of 20 years and even death penalty can be awarded as maximum punishment for such aggravated assault.^[6]

III. Aggravated Sexual Assault: POSCO Act defines the “sexual assault” as actions where a person touches the vagina, penis, anus or breast of child with the sexual intention and without any penetration. Aggravated Sexual Assault, are the cases in which the offender is a relative of the child, or the assault is of such nature that it injures the sexual organs of the child, among others.^[7]

The Amendment act modified the definition of Aggravated Sexual Assault and added two more offences to it. Two new added offenses are (a) any assault which is committed during the natural calamity and (b) Administering or aiding in administering any hormonal or chemical substance to a child with a purpose and intention that the child attains early sexual maturity.^[8]

IV. Pornographic Purposes: POSCO Act says that if a person uses a child in any form of media for the purpose of sexual gratification then such person is guilty of using such child for pornographic purposes.

The POSCO Act also provides a penalty in case a child is used for pornographic purpose resulting in sexual assault.^[9] The Amendment Act gave the clear definition of child pornography and defined it as any visual depiction of a conduct which is sexually explicit and involves a child including photograph, video, digitally generated image or computer generated image indistinguishable from an actual child.

The Amendment Act also provides with the punishment which should not be less than 5 years of imprisonment, with fine.^[10]

V. Storage of Pornographic Material: the penalty provided by the POSCO Act for storing of pornographic material for commercial purposes was up to 3 years, or fine, or both. Now the Amendment Act modified this penalty and now it provides with the imprisonment between 3 to 5 years, or fine, or both. The Amendment Act also added two more offences for storing of pornographic material which involves children; (a) in case a person fails to destroy, or delete, or report such pornographic material, and (b) if a person transmits, displays, or distributes such material well except for the purpose of reporting it.

VI. One more important point which this amendment clears was that the highest punishment will prevail. Like if an offence which is punishable under the POSCO Act, the Indian Penal Code, 1860 or the Information Technology Act, 2000, in such case the highest prescribed penalty will be given.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES, 2020:

This new POSCO rules became effective from 9^th March 2020 and the same was notified by the Union Government. The Protection of Children from Sexual Offences Rules, 2020 has been made in order to enable the implementation of recent amendments to the POSCO Act under which now the provisions of punishment for abusing a child is much more stringent.

These rules includes some very significant provisions like mandatory police verification of school staff and staff of care homes, provides procedure for reporting sexual abuse pornographic material, also imparts child rights education among masses.

CASES:

• Independent Thought v. Union of India^[11]: a two Judge Bench of the Supreme Court on 11^th October 2017 gave its judgment and unanimously read down the Exception 2 to the Section 375 of Indian Penal Code. This provision defines the offence of rape and exception 2 to this provisions states that “Sexual intercourse or sexual acts by a man with his wife, the wife not being under the age of 15 years, is not rape”. The Supreme Court held that the age of consent must be 18 years of age and not 15 years. This means that now exception would read as “Sexual intercourse or sexual acts by a man with his wife, the wife not being under the age of 18 years, is not rape”, therefore this means that if a man forces his minor wife for sexual intercourse then it would amount as an offence of rape.

This judgment was delivered keeping in mind the ill effects of child marriage and also that the exception violated Article 14, 15 and 21 of Indian Constitution and it is inconsistent with the provisions of POSCO Act, as rape under Section 375 of IPC is defined in same way under the POSCO Act as an aggravated sexual assault, even the punishment prescribed for the two offences under the respective statutes is same.

It is pointed out that if a man does not enjoy any immunity under POSCO Act which is a special law enacted for the sole purpose of securing the best interest of child and provides special provisions for women and children, therefore without any reasonable nexus it would be arbitrary to draw a distinction between two statutes and not punish the man for such heinous crime.

• Sachin Kumar Sighraha v. State of Madhya Pradesh^[12]: the 3 Judge Bench of the Supreme Court gave the judgment in which the death sentence was commuted to imprisonment of 25 years without remission in a case in which the convict is guilty of raping and killing a girl of 5 years of age. The reasoning given by the court for such judgment was that there was till scope of reformation considering that there was no history of prior offending and court also kept in mind that the punishment the POSCO Act doesn’t prescribes the death penalty for aggravated penetrative sexual assault.

Court will delivering the judgment considered all the aggravating and mitigating circumstances and said that the accused committed a heinous crime in a manner that was premeditated but the court held that after taking into account all the facts and circumstances in the present case, the crime committed does not fall under the category where it is necessary to impose a death penalty.

After this case the Amendment Act of 2019 came which introduced the death penalty for heinous crimes like aggravated penetrative sexual assault.

CONCLUSION:

The Protection of Children from Sexual Offences Act (POSCO Act), 2012 was very necessary for criminalizing the sexual offences which happens against children and the Amendment Act of 2019 was a much needed legislation which was required to cover the remaining loopholes in the POSCO Act and to further strengthen it.

POSCO Act and its amendment are very essential as it have that sufficient deterrent effect which is required to overcome and eliminate this problem from the grass root level. These acts make sure that, the people have that feeling of contention and credibility in the process of adjudication. And also tries to raise collective consciousness among the masses.

1. The Protection of Children from Sexual Offences Act, 2012, § 3. ↑

2. The Protection of Children from Sexual Offences Act, 2012, § 4. ↑

3. The Protection of Children from Sexual Offences (Amendment) Act, 2019, § 3. ↑

4. The Protection of Children from Sexual Offences Act, 2012, § 5. ↑

5. The Protection of Children from Sexual Offences (Amendment) Act, 2019, § 4. ↑

6. The Protection of Children from Sexual Offences Act, 2012, § 6, substituted vide The Protection of Children from Sexual Offences (Amendment) Act, 2019. ↑

7. The Protection of Children from Sexual Offences Act, 2012, § 3. ↑

8. The Protection of Children from Sexual Offences (Amendment) Act, 2019, § 6. ↑

9. The Protection of Children from Sexual Offences Act, 2012, § 13. ↑

10. The Protection of Children from Sexual Offences Act, 2012, § 14, substituted vide The Protection of Children from Sexual Offences (Amendment) Act, 2019. ↑

11. AIR 2017 SC 4904 ↑

12. (2019) 8 SCC 371 ↑