The Protection of Children from Sexual Offences (Amendment) Bill, 2019

The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was passed by both Houses of the Parliament, post which the President of India, Ram Nath Kovind, gave his assent for the same on 5^th August, 2019. The Bill has the effect of amending the The Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Statement of Objects and Reasons of the Bill, 2019 states: “The said Act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child.”

Important Statistics

During the debate on the Bill, Smriti Irani, the Women and Child Development Minister, stated that 6.20 lakh sexual offenders were listed in the national database, and were being tracked by investigation agencies. She also expressed her concern about the increasing trend in the number of juvenile perpetrators of crimes.

She said that the government is working to create 1023 fast track courts under the Nirbhaya Fund, with a view to providing quick justice in cases of crimes against women. An approximate amount of Rs.75 lakhs would be spent in the creation of infrastructure for each court. 18 states have given their consent to set up fast track courts. They will be established within a period of 2 years.

She expressed her concern with respect to the slow rate of conviction in POCSO cases. She stated that adequate steps had been taken for witness protection and the states urged to create a fund for the purpose of witness protection. About 444 out of a total of 680 Child Welfare Committees and about 509 out of a total of 675 Juvenile Justice Boards were working to full strength.

Intent behind the amendment:

The Amendment Bill was passed keeping in mind the following objectives:

1. To stop the rampant sexual abuse of children, by providing a deterrent in the form of strong penal provisions in the Amendment Act.
2. To provide more stringent punishment, including the death penalty, for aggravated sexual offences against children.
3. To protect the interests of children who are vulnerable in times of distress, as well as ensure their safety and dignity.
4. To establish clarity with respect to different aspects of child abuse and the punishment thereof.
5. To look into the sexual assault of both minor boys and girls; being gender-neutral.
6. To provide for stringent punishment for storing and distributing pornographic material and life imprisonment, for using children for pornographic purposes.
7. To establish Special Courts for the trial of such offences.

What the Amendment Bill provides for:

Penetrative sexual assault:

Under the Protection of Children from Sexual Offences Act, 2012; a person commits “penetrative sexual assault”, if he:

• Penetrates his penis into the vagina, mouth, urethra or anus of any child
• Makes any child do the same
• Inserts any other object into the body of the child
• Applies his mouth to the body parts of any child.

Under the Act, 2012; a person committing “penetrative sexual assault” was liable for punishment in the form of imprisonment between 7 years to life imprisonment, and a fine. The Amendment Bill, 2019 has increased the minimum punishment from 7 years to 10 years. It further adds that if any person commits “penetrative sexual assault” on a child below the age of 16 years, he shall be punished with imprisonment between 20 years to life imprisonment, along with fine.

Aggravated penetrative sexual assault:

The Act, 2012 defines certain actions in the category of aggravated penetrative sexual assault. These include:

• cases wherein a police officer, member of the armed forces, or a public servant commits the offence of penetrative sexual assault on any child
• cases wherein the offender is a relative of the child
• cases wherein the assault lead to injury to the sexual organs of the child
• cases wherein the child becomes pregnant, etc..

The Amendment Bill adds two more grounds to the above definition of aggravated penetrative sexual assault-

1. An assault that results in the death of the child
2. An assault that is committed during a natural calamity, or in any similar situations of violence.

The Act, 2012 provided for punishment for aggravated penetrative sexual assault as imprisonment between 10 years to life imprisonment, and fine. The Amendment Act, 2019 increases the minimum punishment from 10 years to 20 years, and the maximum punishment to the death penalty.

Aggravated sexual assault:

Under the Act, 2012; “sexual assault” includes where any person touches the vagina, penis, anus or breast of a child with sexual intent, and without penetration. “Aggravated sexual assault” includes instances wherein the offender is a relative of the child, or if the assault injures the sexual organs of the child, etc.

The Bill, 2019 adds 2 more offences to the present definition of “aggravated sexual assault”-

1. an assault committed during the time of a natural calamity,
2. The administering or help in administering any hormone or any chemical substance, to a child, for the purpose of attainment of early sexual maturity.

Pornographic purposes:

Under the Act, 2012; a person would be held guilty of using a child for pornographic purposes if he uses a child in any form of media for the objective of sexual gratification. There is also penalty provided for persons who use children for pornographic purposes resulting in sexual assault.

The Bill, 2019 defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated image indistinguishable from an actual child. Further, the Amendment Bill, 2019 enhances the punishments for certain offences.

Storage of pornographic material:

The Act, 2012 penalises storage of pornographic material for commercial purposes, levying a punishment of up to 3 years, or fine, or both. The Amendment Bill, 2019 provides that the punishment can be imprisonment between 3 years to 5 years, or fine, or both. Further, the Amending Bill, 2019 adds 2 more offences for storage of pornographic material involving children-

1. Failing to destroy, or delete, or report pornographic material involving a child
2. Transmitting, displaying or distributing such material except for reporting it.

Introduction of the death penalty:

Section 5 of the Amendment Act, 2019 states:

“For section 6 of the Principal Act, the following section shall be substituted, namely:-

(1). Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

(2). The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim”.

The Amendment Act, 2019 introduced the death penalty for aggravated penetrative sexual assault on children to create a deterrent effect. It refers to the Supreme Court judgments in Machhi Singh (in 1983) and Devender Pal Singh (in 2002), in which the Apex Court had held that the death penalty can be awarded only in rarest of the rare cases.

Concerns over the death penalty:

It has mostly been seen that the perpetrators of abuse are family members, and hence having the death penalty may discourage the registration of the crime itself. It also may have the effect of proving to be a threat to the life of the minor as the maximum punishment for murder is also death sentence.

The 262^nd report of the Law Commission of India, 2015 provides for the abolition of the death penalty; the only exception being in terror cases.

The Justice J.S.Verma Committee, constituted in the year 2013 as an aftermath to the Nirbhaya case after due deliberations were against the imposition of the death penalty in cases of rape.

It is mostly believed that the real deterrence effect comes by the certainty of punishment and not by its severity.

Research has shown that despite stringent punishments, there has been no reduction in the rate of commission of crimes, thus proving the limitation of the deterrent theory.

Steps to be taken

There have been innumerable concerns regarding the implementation of the Protection of Children from Sexual Offences (POCSO) Act, 2012 such as:

1. Lack of adequate Special Courts for the trial of such offences
2. Lack of sensitization for investigators as well as prosecutors in dealing with child victims
3. Extremely poor rate of convictions

The direction of the Apex Court to set up special courts within a period of 60 days of the order in each district that has greater than 100 pending cases under the Act must be urgently complied with.

Before providing death penalty to any convict, the said provision must be discussed at length and debated as to the pros and cons as well as the possible consequences, and it should be kept in mind that death penalty must be used only in the rarest of the rare cases.

The most important measure that can help in the prevention of the offence is awareness as well as sensitization of society.

Conclusion:

There has been a rising trend in recent times in the incidences of child sexual abuse which clearly demonstrates the inhumane mindset of the abusers who have been barbaric in their approach. Children fall easy prey to such people owing to their tender age, physical vulnerability as well as the inexperience of life and society. Due to all these reasons, there was a strong impending need to take stringent measures to deter the rising trend of child sex abuse in India.

The amendments brought about by the Amendment Act, 2019 have made sure that by enhancing the punishments and penalties for various offences, the perpetrators of such crimes shall be punished and this would also serve as a deterrent for the potential offenders; thus ensuring the safety, security and dignified childhood for a child.

However, it should also be noted that before providing death penalty to any convict, it should be widely discussed and debated and it should only be used in the rarest of rare cases.

“The views of the authors are personal“

Frequently Asked Questions

Why was the Protection of Children from Sexual Offences (Amendment) Bill, 2019 introduced?

The Amendment Bill was passed keeping in mind the following objectives:

1. To stop the rampant sexual abuse of children, by providing a deterrent in the form of strong penal provisions in the Amendment Act.
2. To provide more stringent punishment, including death penalty, for aggravated sexual offences against children.
3. To protect the interests of children who are vulnerable in times of distress, as well ensure their safety and dignity.
4. To establish clarity with respect to different aspects of child abuse and the punishment thereof.
5. To look into the sexual assault of both minor boys and girls; being gender neutral.
6. To provide for stringent punishment for storing and distributing pornographic material and life imprisonment, for using children for pornographic purposes.
7. To establish Special Courts for trial of such offences.

What amendments did the Protection of Children from Sexual Offences (Amendment) Bill, 2019 bring about?

The following amendments have been brought about:

1. In terms of penetrative sexual assault, the Amendment Bill, 2019 has increased the minimum punishment from 7 years to 10 years. It further adds that if any person commits “penetrative sexual assault” on a child below age of 16 years, he shall be punished with imprisonment between 20 years to life imprisonment, along with fine.
2. With respect to aggravated penetrative sexual assault, The Amendment Bill adds two more grounds to the definition of aggravated penetrative sexual assault-
3. assault that results in the death of the child
4. assault that is committed during a natural calamity, or in any similar situations of violence.

The Amendment Act, 2019 increases the minimum punishment from 10 years to 20 years, and the maximum punishment to death penalty.

1. Under the Act, 2012; “sexual assault” includes where any person touches the vagina, penis, anus or breast of a child with sexual intent, and without penetration. “Aggravated sexual assault” includes those cases wherein the offender is a relative of the child, or if the assault injures the sexual organs of the child, etc. The Bill, 2019 adds 2 more offences to the present definition of “aggravated sexual assault”-
2. assault committed during the time of a natural calamity,
3. administering or help in administering any hormone or any chemical substance, to a child, for the purpose of attainment of early sexual maturity.
4. Under the Act, 2012; a person would be held guilty of using a child for pornographic purposes if he uses a child in any form of media for the objective of sexual gratification. There is also penalty provided for persons who use children for pornographic purposes resulting in sexual assault.The Bill, 2019 defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer generated image indistinguishable from an actual child. Further, the Amendment Bill, 2019 enhances the punishments for certain offences.
5. The Act, 2012 penalises storage of pornographic material for commercial purposes, levying a punishment of up to 3 years, or fine, or both. The Amendment Bill, 2019 provides that the punishment can be imprisonment between 3 years to 5 years, or fine, or both. Further, the Amending Bill, 2019 adds 2 more offences for storage of pornographic material involving children-
6. failing to destroy, or delete, or report pornographic material involving a child
7. transmitting, displaying or distributing such material except for reporting it.

Why was death penalty introduced in the Amendment Bill, 2019?

The Amendment Act, 2019 introduced death penalty for aggravated penetrative sexual assault on children to create a deterrent effect. It refers to the Supreme Court judgments in Machhi Singh (in 1983) and Devender Pal Singh (in 2002), in which the Apex Court had held that death penalty can be awarded only in rarest of the rare cases.

Section 5 of the Amendment Act, 2019 states:

“For section 6 of the Principal Act, the following section shall be substituted, namely:-

(1). Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

(2). The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim”.

Why were there concerns over providing for death penalty?

It has mostly been seen that the perpetrators of abuse are family members, and hence having death penalty may discourage the registration of the crime itself. It also may have the effect of proving to be a threat to the life of the minor as the maximum punishment for murder is also death sentence.

The 262^nd report of the Law Commission of India, 2015 provides for the abolition of the death penalty; the only exception being in terror cases.

The Justice J.S.Verma Committee, constituted in the year 2013 as an aftermath to the Nirbhaya case, after due deliberations was against the imposition of death penalty in cases of rape.

It is mostly believed that the real deterrence effect comes by the certainty of punishment and not by its severity.

Research has shown that despite stringent punishments, there has been no reduction in the rate of commission of crimes, thus proving the limitation of the deterrent theory.

What are the steps that need to be taken for the proper implementation of this Bill?

There have been innumerable concerns regarding the implementation of the Protection of Children from Sexual Offences (POCSO) Act, 2012 such as:

1. Lack of adequate Special Courts for the trial of such offences
2. Lack of sensitization for investigators as well as prosecutors in dealing with child victims
3. Extremely poor rate of convictions

The direction of the Apex Court to set up special courts within a period of 60 days of the order in each district that has greater than 100 pending cases under the Act must be urgently complied with.

Before providing death penalty to any convict, the said provision must be discussed at length and debated as to the pros and cons as well as the possible consequences, and it should be kept in mind that death penalty must be used only in the rarest of the rare cases.

The most important measure that can help in the prevention of the offence is the awareness as well as sensitization of the society.