A Critical Analysis of the POCSO Amendment (2019)

Introduction and Salient Features of the law: 

The Protection of Children from Sexual Offences Act was first passed in 2012 to safeguard children under the age of 18 (minors) from sexual exploitation. The three main offences it seeks to provide legal penalties for are sexual assault, sexual harassment and child pornography. It is a gender-neutral law with an objective of protecting children against both contact and non-contact sexual abuse. It also led to the establishment of special courts for the trial of such offences.

In 2019, POCSO was amended to increase its ambit, to add more provisions. Some of the new clauses include: A minimum of 20 years punishment and in exceptional cases the death penalty being introduced for aggravated penetrative sexual assault committed against children. It further includes more stringent punishment for sexual assault, rigorous fine and imprisonment for child pornography.

‘Aggravated sexual assault’ includes cases where the offender is a relative of the child, or a person in a position of trust. Cases where the assault injures the sexual organs of the child, or where the child has a mental disability are also included. People in positions of authority like police officers, members of the armed forces, or public servants also fall within the ambit of this provision. 

“The Protection of Children from Sexual Offences (Amendment) Bill of 2019 actually weakens the POCSO Act, Shailabh Kumar, lawyer and co-director of Haq: Centre for Child Rights, said. Including death penalty as punishment could reduce the number of cases reported and might lead to murder of the victims.

Loopholes in The Act:

There are various loopholes in the amendment that are ambiguous in nature. The compensation scheme is not clearly defined. The National Legal Services Authority has outlined a compensation scheme for victims of sexual abuse. Subsequent to recommendations made by the amendment, no rules have been formulated by the Ministry of Women and Child Development, while the Bill fails to specify who will receive the compensation in case of death of the victim. Ground rules for commensurate compensation need to be laid down by the ministry.

When it comes to provisions under aggravated assault, there are no guidelines delineating how people in positions of power (police officers or civil servants) will be tried. Outlining these details is vital for a country where power and impunity are two sides of the same coin. Special sensitization programs for fast track courts, including POSCO courts, prosecutors and judges should be made a requirement to make courts more children friendly spaces. Psychological therapy for children is crucial when it comes to dealing with the trauma of abuse. More rehabilitative services including free of cost mental health practitioners is a necessity to manage the long-standing effects of abuse.

The difference between teenage consensual sex and non-consensual sex is hard to differentiate, and thus the ‘age of consent’ needs to reworked. As sexual mores evolve in society, archaic conditions are a setback to freedom, sexual agency and can often be misused by families to cover up cases of elopement and inter-caste marriages.

The recent interpretation by the Nagpur Bench, of the Bombay High Court deeming groping the breasts of a minor over the clothes, as falling under the ambit of outraging the modesty of a woman (Section 354 of IPC), instead of falling under POCSO since no skin-to-skin contact took place, is extremely problematic. Section 7 of the POCSO act defines sexual assault as physical contact with sexual intent sans penetration. It doesn’t define skin-to-skin contact as essential. Narrowing the ambit of the legislation is inconsistent with the act as well as sets a disappointing precedent for the protection of children assaulted through non-contact abuse.

This judgement undermines sexual harassment faced by minors, and trivializes molestation as not being a grave offence. It normalizes trauma and socializes women to be passive and complacent to abuse in our country. It doesn’t hold men accountable for their actions and places the burden of ‘not getting assaulted’ on women. According to the feminist Susan Brown Miller, the fear of sexual assault is a form of mental violence in itself, and judgments like these further give impetus to mental violence faced by women, apart from the physical. 

Critiquing the Death Penalty:

There are various reasons to critique the death penalty introduced by this act as a short-sighted move, that might lead to additional complications. In 94.6% of cases in 2016 according to the National Crime Bureau, the abuser was a relative of the child or was known to the child. In such a case, it increases the chances of harming or even murdering the child so as to avoid stringent punishment.

Secondly there could be a drastic fall in reporting of the cases, as the family could often coerce children into keeping the matter to themselves, to protect a relative or friend from the death penalty. 

Thirdly, no empirical evidence exists to suggest that death penalty has a deterrent effect over life imprisonment, according to the Law Commission’s 2015 report on capital punishment. The Justice J.S. Verma Committee, set up in the aftermath of the heinous 2012 Nirbhaya gang rape case, did not think adding the death penalty for rape cases was a way to make India safer for women. While there hasn’t been a reduction in horrific cases like Unnao and Hathras which gained mainstream media attention, many survivors don’t get access to justice nor have the privilege of getting their stories heard at all. Thus, accessing accurate figures of child sexual abuse is a challenge in itself.

Another aspect to highlight is that often minorities can be targeted who don’t have the financial means to afford legal aid. The 2011 census shows that Muslims, Dalits, and Tribals comprise 14.2%, 16.6% and 8.6% of the population respectively but make three-fourth of the number of undertrial cases in total prison populations. The situation could be exacerbated as harsher punishment is introduced in the legal system, for the marginalized.

Lastly, equating the idea of rape with the death penalty is problematic in itself. Feminist scholars and activists have recently spoken out against victim blaming and ostracization of survivors who find it difficult to be reintegrated into mainstream society post sexual assault. According to many feminists a woman’s honour and sexuality is intrinsically linked and keeping this honour intact is her duty, which makes her life worth living. By according the death penalty, the notion assumed is that rape is a fate far worse than death and that rape destroys a woman’s life completely. Breaking such stereotypes is important as it normalizes the fact that women can lead meaningful lives, on their own terms, even after dealing with abuse.

Long-term Solutions to Decrease Child Sexual Assault:

A group of women lawyers have recently expressed disappointment over lack of representation of women, Dalits, Adivasis or members of the LGBTQIA+ community in the National Level Committee for Reforms in Criminal Law, constituted by the Ministry of Home Affairs. The committee was stipulated recently to review criminal laws in the country and has predominantly male academicians as members. Policy making needs to involve marginalised communities for more holistic solutions rooted in practical lived experiences, which can only happen when committees like these are made more representative in nature. With a diverse set of communities on board, loopholes in acts like POCSO can be seen from multiple perspectives.

Certain forms of restorative justice have been incorporated in the criminal justice systems of different countries like Canada and New Zealand. According to NLUD’s report on Restorative Justice and Child Abuse in India, Restorative justice is about repairing the harm done to relationships. It is about encouraging accountability of offenders through reconciliation practices, to reduce recidivism. It is about resolving conflict between the offender and victim by enabling dialogue between them in a safe environment.

Often survivors, especially children take years to process abuse endured by them. Legal proceedings and tiresome trials don’t always address the psychological needs and emotional recovery of survivors. It works at different levels by applying victim-centric approaches, offender-centric approaches and dialogue based approaches. Offender focused programmes include Circles of Accountability and Support where social community workers or volunteers help former sex-offenders reintegrate into society. Victim focused programmes include measures to reduce shame and stigma, provide rehabilitation, restitution and educate and empower victims.

The National University of Delhi’s Criminology and Victimology Centre, continues to steadily work on the concept of such justice, which is in its nascent stages in India. Counsel to Secure Justice works with child sexual abuse survivors to address their emotional needs, during criminal proceedings. Ashiyana foundation works with juvenile offenders for petty crimes to facilitate an offender-centric approach, and provide a humane environment for them to realize their mistakes. This approach has to be further explored and developed to address more serious crimes in India, like rape. Dialogue based approaches have not been explored either, the dynamics of which need to be navigated carefully in our country where the victims of abuse often know the offender.

There are no definitive solutions to redress sexual assault, but systemic changes are what will go a long way in contributing to incremental change. These include sex education classes that talk about both the biological as well as the social aspect of sex, discussion of concepts like consent and coercion, deconstructing rape culture and how sexual violence is used as a tool of power, for students. Open discussions introduced in schools and starting conversations is a small step in the direction of working towards a safer, more inclusive society. Rethinking our idea of retributive justice and its efficacy is the need of the hour.

Diya Narag is a first year LLB student at Jindal Global Law School interested in the intersection of human rights and policy-making.

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