By Ms. Bini. R.A
Over the past decade, crimes against children are increasing enormously. Whatever measures were taken to combat the same no improvement had came. And then Parliament finally enacted a comprehensive legislation to particularly deal with sexual offences against children. The result was the passing of the Protection of Children from Sexual Offences Act, 2012. However, this Act has not met its objectives which paved way for severe criticism of the Act. And now Parliament has amended this existing law and made certain changes which ought to make the Act more effective.
2.BACKGROUND OF THE ACT
Traditionally, the crimes against children were dealt under the Indian Penal code, 1860. But IPC did not had any explicit provision for sexual offences against children. The sexual offences against them are dealt under Section 375 of the IPC, i.e., rape. In addition section 354 outraging the modesty of women was also included. Children were treated just like adults, and there was serious need to have a separate legislation to deal with sexual offences against children. Ultimately, the POCSO Act was passed successfully on 14 November 2012.
POCSO Act dealt with various forms of sexual offences against children and punishment for the same. The Act even discussed about child friendly procedures throughout investigation and trial till the disposal of the case. The Act has forty six provision exclusively to deal only with the sexual offences against children. But the Act suffered from serious lacunas.
· Though the Act had prescribed punishment for the offenders, the punishment were not harder.
· The offences against children has not even decreased.
· The Act stipulates the cases to be disposed within a year, but the cases were pending before such courts till now.
· The conviction rate was less.
Therefore, the Union Government thought to make certain amendments in the existing laws and passed the POCSO (Amendment) Act, 2019.
3.OVERVIEW OF THE NEW ACT
The POCSO (Amendment) Act, 2019 deals exclusively about child sexual assault, child sexual harassment and child pornography. The Amendment Act tried to cover the loopholes in the 2012 Act and it has achieved to certain extent. The new provisions of the amended Act are:
· Stringent punishment – the Amended Act enhanced punishment for some of the child sexual offences. Firstly, Section 4 has been amended and the punishment for penetrative sexual assault has been increased. In the earlier Act it stipulates seven years of imprisonment and the new Act provides for ten years of imprisonment. Also if penetrative sexual assault has been committed against a child below the age of sixteen year, then the punishment is twenty years of imprisonment which may be extended to life imprisonment with fine. Secondly, section 5 and 6 has been amended and it enhanced the punishment of aggravated penetrative sexual assault from ten years of imprisonment to life imprisonment in the earlier Act to twenty years of imprisonment to life imprisonment or even death penalty.
· Child sexual abuse during violence at natural calamity – earlier the Act provides for the punishment of abusing a child sexually at times of communal or sectarian violence. The amendment Act has removed such words and added punishment for person who is indulging in abusing a child sexually at times of violence during communal or sectarian or during natural calamity or such similar situations.
· Child pornography – the 2012 Act provides for the punishment for storing child pornography for any commercial purposes. But now section 15 has been widened by an amendment and includes punishment even for possessing pornography involving a child in any form, and failing to delete or destroy or to report to the concerned authority are also included. The punishment for this under the Amended Act is fine of Rs. five thousand and in the second or subsequent offence, the fine shall not be less than Rs. ten thousand.
4.POSITIVE SIDE OF THE ACT
The amended Act has been welcomed by most of the community due to various reasons and some of them are:
· The 2019 Amendment Act is progressive in nature. It has gone beyond the 2012 Act;
· The Amendment Act tried to meet the aspirations and expectations of the victims of the child sexual abuse; and
· It is believed that imposing death penalty to aggravated penetrative sexual assault on a child will actually be a deterrence to the offenders.
5.NEGATIVE SIDE OF THE ACT
Though the Amendment Act has various positive sides, the Act also suffers from several disadvantages like:
· The Amended Act has only focused on the way of punishing the offenders. The Act has not given any provisions on how to prevent sexual abuse against children, which is a serious loophole in the present Amended Act;
· Lack of public expenditure for treating, counselling and re-habilitating the victims of child sexual abuse, because in some instances parents would abandon such children;
· Whether actually imposing death penalty will be a deterrent to the offenders and will it reduce crimes against children is a million dollar question? How far death penalty is going to be implemented is another big question? All the answers to these questions lies on the successful implementation of the Act; and
· In some instance parents of the victim child are scared to complaint against the offender, because in most cases the offender is known to the victim and they also concern about the future of the child.
India is a country with huge number of child population. But children in India are not safe. They are becoming victims of various heinous offences like sexual assault, child pornography, kidnapping and abduction. They are been raped without even showing little mercy. Their childhood life has been ruined due to this. Therefore keeping in mind all these, effective and strong implementation of the POCSO (Amendment) Act, 2019 is the need of the hour. Many legislations remain strong in paperwork but they are poorly implemented. That situation should not be in the case of this Act, because sexual abuse against child is barbaric act.