The POCSO Act: Object, Scheme and Definitions

Second, the Government of India acceded on 11 December 1992 to the Convention on the Rights of the Child, which prescribes standards for securing the best interests of the child.

Third, it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person, by all means and through all stages of a judicial process involving the child.

Fourth, it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure his healthy physical, emotional, intellectual and social development.

Fifth, the State parties to the Convention are required to undertake all appropriate national, bilateral and multilateral measures to prevent:

(a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; (c) the exploitative use of children in pornographic performances and materials;

and sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.

Those three sub-clauses of the fifth recital are the plan of Chapters II and III: (a) becomes penetrative and non-penetrative assault, (b) the aggravated forms, and (c) the pornography offences in sections 13 to 15.

Section 1: title, extent, commencement

Sub-section (1). The Act may be called the Protection of Children from Sexual Offences Act, 2012.

Sub-section (2). It extends to the whole of India. The words "except the State of Jammu and Kashmir" were omitted by Act 34 of 2019, section 95 and the Fifth Schedule, with effect from 31 October 2019.

Sub-section (3). It comes into force on such date as the Central Government appoints by notification: that date was 14 November 2012, by notification S.O. 2705(E) dated 9 November 2012.

Section 2: definitions

Sub-section (1).

(a) "aggravated penetrative sexual assault" has the meaning assigned in section 5; (b) "aggravated sexual assault" has the meaning assigned in section 9; (c) "armed forces or security forces" means armed forces of the Union, or security forces or police forces, as specified in the Schedule; (d) "child" means any person below the age of eighteen years; (da), inserted by Act 25 of 2019 with effect from 16 August 2019, "child pornography" means any visual depiction of sexually explicit conduct involving a child, which includes a photograph, video, digital or computer generated image indistinguishable from an actual child, and an image created, adapted or modified but which appears to depict a child; (e) "domestic relationship" has the meaning assigned in clause (f) of section 2 of the Protection of Women from Domestic Violence Act, 2005; (f) "penetrative sexual assault" has the meaning assigned in section 3; (g) "prescribed" means prescribed by rules made under the Act; (h) "religious institution" has the meaning assigned in the Religious Institutions (Prevention of Misuse) Act, 1988; (i) "sexual assault" has the meaning assigned in section 7; (j) "sexual harassment" has the meaning assigned in section 11; (k) "shared household" means a household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child; (l) "Special Court" means a court designated as such under section 28; (m) "Special Public Prosecutor" means a Public Prosecutor appointed under section 32.

Sub-section (2), the residuary clause. Words and expressions used but not defined here, and defined in the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2015, or the Information Technology Act, 2000, shall have the meanings respectively assigned to them in those Codes or Acts.

Three of these definitions do real work later and should be remembered by their effect rather than their words. "Child" is any person, which makes the Act gender neutral. "Shared household" and "domestic relationship" feed into the aggravated offences in sections 5 and 9, where an offender living in the same household is treated more severely. And "armed forces or security forces", defined by the Schedule, does the same, which is why the Schedule lists fifteen enactments from the Air Force Act, 1950 to the Sashastra Seema Bal Act, 2007.

Sections 45 and 46: rules and difficulties

Section 45(1). The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of the Act.

Sub-section (2). In particular, rules may provide for:

(a) the manner of deleting or destroying or reporting about pornographic material involving a child to the designated authority under section 15(1); (aa) the manner of reporting such material under section 15(2); (ab) the qualifications, experience and fees of a translator, interpreter, special educator, person familiar with the child's manner of communication, or expert, under sections 19(4), 26(2) and (3), and 38; (b) the care and protection and emergency medical treatment of the child under section 19(5); (c) the payment of compensation under section 33(8); (d) the manner of periodic monitoring under section 44(1).

Sub-section (3). Every rule shall be laid before each House of Parliament for a total period of thirty days, and is subject to modification or annulment, without prejudice to the validity of anything previously done under it.

Section 46(1). If any difficulty arises, the Central Government may, by order published in the Official Gazette, make provisions not inconsistent with the Act as appear necessary or expedient. Proviso: no such order after the expiry of two years from the commencement of the Act, that is after 14 November 2014.

Sub-section (2). Every such order shall be laid before each House of Parliament.

A worked example

A boy of twelve is sexually assaulted by a male neighbour.

Does POCSO apply? Yes. "Child" means any person below eighteen, section 2(1)(d), and the offences are framed as committed by "a person" on "a child". Neither the victim's nor the offender's gender matters.

Would the Indian Penal Code have covered it? Not as rape, which was confined to a woman as victim. That gap is the first reason POCSO exists.

The offender lived in the same house as the boy for a year. That brings in "shared household", section 2(1)(k), a household where the person charged lives or has lived at any time in a domestic relationship with the child, which is an ingredient of the aggravated offences.

The offender is a constable. "Armed forces or security forces" is defined by reference to the Schedule, which lists fifteen enactments including the Central Reserve Police Force Act, 1949 and the Railway Protection Force Act, 1957; that too aggravates.

Photographs were taken. "Child pornography", section 2(1)(da), inserted in 2019, means any visual depiction of sexually explicit conduct involving a child, including a digital or computer generated image indistinguishable from an actual child, and an image created, adapted or modified but appearing to depict a child.

A word used in the Act is not defined in it. It takes the meaning given in the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice Act, 2015 or the Information Technology Act, 2000, section 2(2).

The State says it lacks rules on compensation. Rules under this Act are made by the Central Government, not the State, section 45(1), and must be laid before each House of Parliament for thirty days.

A difficulty arises in 2026. The Central Government cannot use section 46: the power expired two years after the commencement, on 14 November 2014.

Distinctions

What this does NOT mean

POCSO is not a women's statute. "Child" means any person below eighteen.

It does not displace the Indian Penal Code entirely. Section 42, in a later chapter, decides which punishment applies where the act is an offence under both.

The definitions in section 2(1) are not self-contained. Six of them are cross-references to the sections that create the offences, and section 2(2) borrows from four other statutes.

Rules are not made by the States. Section 45 gives the power to the Central Government, and the rules are laid before Parliament.

And section 46 is spent. No order removing difficulties could be made after two years from the commencement.

Quick revision

• Preamble: to protect children from sexual assault, sexual harassment and pornography, and to establish Special Courts; resting on Article 15(3), the Convention on the Rights of the Child acceded to on 11 December 1992, the child's right to privacy and confidentiality through all stages of a judicial process, the paramountcy of the best interest and well being of the child, and the Convention's requirement to prevent inducement or coercion into unlawful sexual activity, exploitative use in prostitution and exploitative use in pornographic performances and materials.
• 1: Act 32 of 2012, in force 14 November 2012, extending to the whole of India since 31 October 2019.
• 2(1): child, any person below eighteen; child pornography, inserted in 2019; shared household; domestic relationship from the Protection of Women from Domestic Violence Act, 2005; religious institution from the Religious Institutions (Prevention of Misuse) Act, 1988; armed forces or security forces from the Schedule; and the offence definitions by cross-reference to sections 3, 5, 7, 9 and 11.
• 2(2): undefined words take their meaning from the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice Act, 2015 and the Information Technology Act, 2000.
• 45: Central Government rules, on deletion and reporting of pornographic material, experts' qualifications and fees, care, protection and emergency medical treatment, compensation and monitoring; laid before each House for thirty days.
• 46: power to remove difficulties, expired two years from commencement; every order laid before each House of Parliament.

Test yourself

1. Who is a "child" under the Act? Any person below the age of eighteen years, section 2(1)(d). The definition is gender neutral.

2. When did the Act come into force? On 14 November 2012, by notification S.O. 2705(E) dated 9 November 2012.

3. What is a "shared household"? A household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child, section 2(1)(k).

4. What did the 2019 amendment do? Act 25 of 2019, with effect from 16 August 2019, inserted the definition of "child pornography" in section 2(1)(da), raised the minimum punishment under section 4(1) from seven years to ten, inserted sub-sections (2) and (3) of section 4, and introduced the death penalty into section 6.

5. Where do undefined words get their meaning? From the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Information Technology Act, 2000, section 2(2).

6. Who makes the rules under this Act? The Central Government, by notification in the Official Gazette, and every rule is laid before each House of Parliament for a total period of thirty days, section 45.

7. Which Government instruments does the Preamble rest on? Clause (3) of article 15 of the Constitution, and India's accession on 11 December 1992 to the Convention on the Rights of the Child.