POCSO: Objects and Scheme

The rest of section 2. Domestic relationship, shared household, Special Court, Special Public Prosecutor, and the direction in sub-section (2) that words not defined here have the meanings assigned in the criminal law and the Juvenile Justice Act.

The offences

Section 3, penetrative sexual assault. Penetration of the penis to any extent into the vagina, mouth, urethra or anus of a child or making the child do so; insertion of any object or part of the body other than the penis into the vagina, urethra or anus; manipulation of any part of the child's body so as to cause penetration; or application of the mouth to the penis, vagina, anus or urethra of the child, or making the child do so.

Section 4, punishment. Not less than TEN YEARS extending to imprisonment for life, with fine; and where the child is below SIXTEEN, not less than twenty years extending to imprisonment for the remainder of natural life, with fine. The fine is to be just and reasonable and PAID TO THE VICTIM to meet medical expenses and rehabilitation.

Section 5, aggravated penetrative sexual assault. Committed by a police officer within his station, premises, in the course of duty or where identified as such; by a member of the armed or security forces in the corresponding circumstances; by a public servant; by the management or staff of a jail, remand home, protection home, observation home or other place of custody, or of a hospital, or of an educational or religious institution; gang penetrative sexual assault; use of deadly weapons, fire or corrosive substance; causing grievous hurt, bodily harm, injury to the sexual organs, or physical or mental incapacity; causing the child to become mentally ill or pregnant; committed on a child suffering from a physical or mental disability; committed more than once or repeatedly; on a child below TWELVE; by a RELATIVE through blood, adoption, marriage, guardianship, foster care or a shared household; by the owner, management or staff of an institution providing services to the child; by a person in a POSITION OF TRUST OR AUTHORITY; during communal or sectarian violence or during any natural calamity; knowing the child to be pregnant; attempting to murder the child; making the child strip or parade naked in public; and the other listed circumstances.

Section 6, punishment. Rigorous imprisonment of not less than TWENTY YEARS extending to imprisonment for the remainder of natural life, with fine, OR WITH DEATH, the fine again to be paid to the victim.

Section 7, sexual assault. Touching with sexual intent the vagina, penis, anus or breast of a child, or making the child touch those of the offender or another, or any other act with sexual intent involving physical contact without penetration.

Section 8, punishment. Not less than three and up to five years, with fine.

Sections 9 and 10, aggravated sexual assault. The same circumstances of aggravation as section 5, applied to sexual assault; punishment not less than five and up to seven years, with fine.

Section 11, sexual harassment. With sexual intent: uttering a word, making a sound, gesture or exhibiting an object or part of the body intending it to be heard or seen by the child; making a child exhibit the body; showing an object to a child in any form or media for pornographic purposes; repeatedly or constantly following, watching or contacting a child directly or by electronic or digital means; threatening to use a real or fabricated depiction of the child's body or of the child's involvement in a sexual act; and enticing a child for pornographic purposes.

Section 12, punishment. Up to three years and fine.

Sections 13 and 14, use of a child for pornographic purposes. Using a child in any form of media for the purposes of sexual gratification, including representation of the sexual organs of a child, use of a child in real or simulated sexual acts, and the indecent or obscene representation of a child. Punishment not less than five years and fine, and on a second or subsequent conviction not less than seven years; and by section 14(2), where the offender directly participated in an offence under sections 3, 5, 7 or 9, punishment under sections 4, 6, 8 or 10 in addition.

Section 15, storage and possession. Three offences, as Just Rights for Children Alliance v. S. Harish holds: sub-section (1), storing or possessing without deleting, destroying or reporting, with an intention to SHARE OR TRANSMIT, punishable with a fine of not less than five thousand rupees and ten thousand on a subsequent offence; sub-section (2), storage or possession for TRANSMITTING, propagating, displaying or distributing, except for the purpose of reporting or for use as evidence, up to three years or fine or both; sub-section (3), storage or possession for a COMMERCIAL purpose, three to five years on a first conviction and five to seven subsequently.

Sections 16, 17 and 18. Abetment, defined by instigation, conspiracy or intentional aiding; punishment for abetment, the same as for the offence where the act abetted is committed; and punishment for attempt, up to one half of the imprisonment provided for the offence.

Reporting

Section 19. Any person, INCLUDING THE CHILD, with apprehension that an offence is likely to be committed or knowledge that one has been committed, shall inform the Special Juvenile Police Unit or the local police; the report is to be recorded in writing, read over to the informant in a language he understands, and entered in a book; where the child needs care and protection the Unit or police shall report to the Child Welfare Committee within twenty-four hours and place the child in a shelter or hospital.

Section 20. Media, hotel, lodge, hospital, club, studio and photographic facility personnel to report material sexually exploitative of a child.

Section 21. Failure to report or record: up to six months, or fine, or both; and for a person in charge of a company or an institution who fails to report in respect of a subordinate, up to one year and fine. A child is not liable.

Section 22. False complaint or false information given solely to humiliate, extort, threaten or defame: up to six months, or fine, or both; a child is not punishable; and a person, not being a child, who makes a false complaint against a child: up to one year.

Section 23. Procedure for the media: no report or comment without complete and authentic information which may lower the child's reputation or infringe privacy, and NO DISCLOSURE of the child's identity, including name, address, photograph, family details, school, neighbourhood or any particular that may lead to identification, save by the Special Court for reasons recorded in writing where it is in the child's interest.

The child-friendly procedure

Section 24, recording the statement. At the residence of the child or a place where the child usually resides or of the child's choice; as far as practicable by a WOMAN POLICE OFFICER NOT BELOW THE RANK OF SUB-INSPECTOR; the officer NOT IN UNIFORM; no contact at any point with the accused; and no detention of the child in a police station at night.

Sections 25 and 26. A Magistrate recording under the criminal procedure law is to record the statement AS SPOKEN BY THE CHILD, and the proviso permitting the presence of the accused's advocate does not apply; and the statement is to be recorded in the presence of the parents or a person the child trusts, with a translator, interpreter or special educator where necessary, and audio-video recording so far as possible.

Section 27, medical examination. To be conducted even where no first information report has been registered; a GIRL CHILD to be examined by a WOMAN DOCTOR; in the presence of a parent or a person the child trusts, or of a woman nominated by the head of the institution where no such person is available.

Section 28, the Special Court. The State Government, in consultation with the Chief Justice of the High Court, designates a Court of Session for each district as a Special Court; a court already notified as a children's court under the Commissions for Protection of Child Rights Act 2005 is deemed a Special Court.

Section 29, the presumption as to the offence. Where a person is prosecuted for committing, abetting or attempting an offence under sections 3, 5, 7 or 9, the Special Court SHALL PRESUME that he committed, abetted or attempted it, UNLESS THE CONTRARY IS PROVED.

Section 30, the presumption of culpable mental state. The Special Court shall presume the existence of the culpable mental state, and it is a defence for the accused to prove that he had none, a fact being proved only when the court believes it to exist BEYOND REASONABLE DOUBT and not merely on a preponderance of probability.

Sections 31 and 32. The criminal procedure law applies save as otherwise provided, and the Special Court is deemed a Court of Session; and a Special Public Prosecutor is appointed for every Special Court, eligible only if in practice for not less than seven years.

Section 33, procedure and powers. Cognizance without committal; questions to the child put THROUGH the Special Court and not directly by counsel; frequent breaks; a parent or trusted person to be present; the child not to be called repeatedly to testify; no aggressive questioning and no CHARACTER ASSASSINATION; the child's identity not to be disclosed; and the Special Court may order compensation for physical or mental trauma or for immediate rehabilitation.

Section 34. Where the offence is committed BY a child, the Juvenile Justice Act applies; and the Special Court determines age, recording its reasons in writing.

Section 35. The evidence of the child to be recorded within THIRTY DAYS of the Special Court taking cognizance, with reasons for delay recorded; and the trial to be completed, as far as possible, within ONE YEAR from the date of taking cognizance.

Sections 36 to 38. The child not to be exposed to the accused while testifying, the Court being empowered to use video conferencing, single visibility mirrors or curtains, while ensuring the accused can hear and communicate with his advocate; trial IN CAMERA in the presence of the parents or a trusted person, with a commission where the child needs to be examined elsewhere; and the assistance of a translator, interpreter, special educator or expert.

Sections 39 and 40. State guidelines for the association of non-governmental organisations, professionals and experts in psychology, social work, physical and mental health and child development at the pre-trial and trial stages; and the right of the family or guardian to a legal counsel of their choice, with the LEGAL SERVICES AUTHORITY to provide a lawyer where they cannot afford one.

The remaining sections

Section 41. Sections 3 to 13 do not apply to a medical examination or medical treatment undertaken with the consent of the child's parents or guardian.

Section 42. Where an act is punishable both under this Act and under the listed provisions of the Penal Code or section 67B of the Information Technology Act 2000, the offender is liable to the punishment GREATER IN DEGREE.

Section 42A. The Act is in addition to and not in derogation of any other law, and in case of inconsistency has OVERRIDING EFFECT to the extent of the inconsistency.

Section 43. Public awareness: wide publicity through television, radio and print at regular intervals, and periodic training for officers of the Central and State Governments, including police officers.

Section 44. The National and State Commissions for Protection of Child Rights MONITOR the implementation of the Act, with the same powers as under the Act of 2005 when inquiring, and include in their annual report a separate chapter on their activities under this Act.

Sections 45 and 46. Rule-making by the Central Government, including the manner of deleting, destroying or reporting material under section 15; and removal of difficulties by order within two years.

A worked example

A boy of eleven is assaulted by a warden at a residential school. The school does not report it. Six months later the boy's parents complain.

The offence. If penetrative, sections 3 and 4; and AGGRAVATED under section 5, because the offender is on the staff of an educational institution, is in a position of trust or authority, and the child is below twelve, so section 6 applies: not less than twenty years to imprisonment for the remainder of natural life, or death.

Is it gender-neutral? Yes. Section 2(1)(d) says "any person below the age of eighteen years", and sections 3 and 7 speak of a child, so the boy is protected exactly as a girl would be.

The school's failure. Section 21(2): a person in charge of a company or an institution who fails to report an offence in respect of a subordinate is punishable with up to one year and fine. Section 19 obliged any person with knowledge to report.

The statement. Section 24: at his residence or a place of his choice, by a woman sub-inspector so far as practicable, not in uniform, with no contact with the accused and no night detention; section 26, in the presence of his parents.

The trial. Special Court under section 28; presumption under section 29 that the warden committed the offence unless the contrary is proved, and under section 30 as to the mental state; questions through the court under section 33(2); no exposure to the accused under section 36; in camera under section 37; evidence within thirty days and trial within a year so far as possible under section 35.

And what he gets. Compensation under section 33(8) for trauma and immediate rehabilitation, and the fine under section 6(2), which is to be paid to him.

What this does NOT mean

It does not mean the Act is only about girls. It is gender-neutral as to the victim and, in most sections, as to the offender.

It does not mean consent is a defence. No provision refers to the consent of the child, and section 63 of the Sanhita makes intercourse with a person under eighteen rape irrespective of consent.

It does not mean POCSO displaces the general law. Section 42A makes it additional, with overriding effect on inconsistency, and section 42 decides which punishment applies.

And it does not mean the presumptions reverse the burden absolutely. Section 30(2) requires the accused's defence to be proved beyond reasonable doubt rather than on a balance, which is a heavy standard, and the presumption in section 29 operates only after the prosecution has established the foundational facts.

Quick revision

Act 32 of 2012, in force 14 November 2012; Amendment Act 25 of 2019 from 16 August 2019. s.1 extent; s.2(1)(d) child means any person below EIGHTEEN, gender-neutral. Offences: s.3 and s.4 penetrative sexual assault, ten years to life, twenty years where the child is below sixteen, fine paid to the victim; s.5 and s.6 aggravated, twenty years to imprisonment for the remainder of natural life or DEATH; s.7 and s.8 sexual assault, three to five years; s.9 and s.10 aggravated, five to seven; s.11 and s.12 sexual harassment, up to three years; s.13 and s.14 use of a child for pornographic purposes, five years and seven on a subsequent conviction, with the underlying offence added under s.14(2); s.15 storage and possession, three distinct offences; ss.16 to 18 abetment and attempt, attempt at up to one half.

Reporting: s.19 any person INCLUDING THE CHILD; s.20 media, hotels, hospitals, studios; s.21 failure, six months, and a child not liable; s.22 false complaint; s.23 no disclosure of identity in the media.

Procedure: s.24 statement at the child's residence by a woman sub-inspector NOT IN UNIFORM, no contact with the accused, no night detention; s.25 recorded as spoken, the accused's advocate excluded; s.26 in the presence of parents, with an interpreter or special educator; s.27 medical examination even without a first information report, a girl by a woman doctor; s.28 Special Court in each district; s.29 PRESUMPTION as to sections 3, 5, 7 and 9; s.30 presumption of culpable mental state, rebuttable only beyond reasonable doubt; ss.31 and 32 the criminal procedure law and a Special Public Prosecutor of seven years' practice; s.33 questions through the court, breaks, no aggressive questioning or character assassination, and compensation; s.34 an offence by a child goes to the Juvenile Justice Act and the Court determines age; s.35 evidence in THIRTY DAYS and trial in ONE YEAR so far as possible; s.36 no exposure to the accused; s.37 in camera; s.38 interpreter or special educator; s.39 expert guidelines; s.40 counsel of choice and legal aid; s.41 medical treatment excepted; s.42 the GREATER punishment; s.42A overriding effect; s.43 publicity and training; s.44 monitoring by the Commissions; ss.45 and 46 rules and removal of difficulties.

Test yourself

1. Why was POCSO needed when the Penal Code already punished sexual offences? Because the rape provision was confined to a woman, so a boy had only the general provisions; because it required penetration of a particular kind and so missed the acts most commonly committed against a young child; because there was no offence of non-contact sexual conduct against a child; because there was no procedure for a child witness; and because nobody was under a duty to report.

2. Set out the graded scheme of offences. Penetrative sexual assault, sections 3 and 4; aggravated penetrative sexual assault, sections 5 and 6; sexual assault, sections 7 and 8; aggravated sexual assault, sections 9 and 10; sexual harassment, sections 11 and 12; use of a child for pornographic purposes, sections 13 and 14; and storage or possession of such material, section 15.

3. State the two presumptions and the standard for rebutting them. Section 29: where a person is prosecuted for committing, abetting or attempting an offence under sections 3, 5, 7 or 9, the Special Court shall presume that he did so unless the contrary is proved. Section 30: the Court shall presume the culpable mental state, and it is a defence for the accused to prove that he had none, a fact being proved only when the Court believes it to exist BEYOND REASONABLE DOUBT and not on a preponderance of probability.

4. Give five features of the child-friendly procedure. The statement recorded at the child's residence or place of choice by a woman sub-inspector not in uniform, with no contact with the accused and no detention at night, section 24; the statement recorded as spoken by the child in the presence of a parent or trusted person, sections 25 and 26; questions put through the Special Court and not directly by counsel, with breaks and without aggressive questioning or character assassination, section 33; the child not exposed to the accused, with video conferencing or screens, section 36; and trial in camera, section 37.

5. What do sections 42 and 42A do? Section 42 provides that where an act is punishable both under this Act and under the listed provisions of the Penal Code or section 67B of the Information Technology Act, the offender is liable to the punishment greater in degree. Section 42A provides that the Act is in addition to and not in derogation of any other law and, in case of inconsistency, has overriding effect to the extent of the inconsistency.