The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in Rajya Sabha by the Minister of Women and Child Development, Ms. Smriti Zubin Irani on July 18, 2019 and later passed by both houses of parliament. The Bill amends the Protection of Children from Sexual Offences Act, 2012.  The Act seeks to protect children from offences such as sexual assault, sexual harassment, and pornography.
 

• Penetrative sexual assault: 

Under the Act, a person commits “penetrative sexual assault” if he: (i) penetrates his penis into the vagina, mouth, urethra or anus of a child, or (ii) makes a child do the same, or (iii) inserts any other object into the child’s body, or (iv) applies his mouth to a child’s body parts.  The punishment for such offence is imprisonment between seven years to life, and a fine. 

 The Bill increases the minimum punishment from seven years to ten years.  It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine. 
 

• Aggravated penetrative sexual assault: 

The Act defines certain actions as “aggravated penetrative sexual assault”.  These include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.  It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others. 

The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.  These include: (i) assault resulting in death of child, and (ii) assault committed during a natural calamity, or in any similar situations of violence.  Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine.  The Bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
 

• Aggravated sexual assault: 

Under the Act, “sexual assault” includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration.  “Aggravated sexual assault” includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others. 

The Bill adds two more offences to the definition of aggravated sexual assault.  These include: (i) assault committed during a natural calamity, and (ii) administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.

• Storage of pornographic material: 

The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both.  The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both. 

The Bill adds two other offences for storage of pornographic material involving children.  These include: (i) failing to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it

• Pornographic purposes:

Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault. 

 The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.  In addition, the Bill enhances the punishments for certain offences as shown in Table.

Table : Punishment for offences for using child for pornographic purposes

Impact

1. The amendment is expected to discourage the trend of child sexual abuse by acting as a deterrent due to strong penal provisions incorporated in the Act.
2. It intends to protect the interest of vulnerable children in times of distress and ensures their safety and dignity. 
3. The amendment is aimed to establish clarity regarding the aspects of child abuse and punishment thereof.
4. the Bill defines child pornography so that sexual predators indulging in such heinous crimes could be punished.
5. The Bill,  would provide added legal protection to 39 per cent of population or 43 crore children, irrespective of whether they are a girl or boy
6. Recalling a case wherein children were administered drugs and harmones to make them sexually active, she said, the law is aimed at providing stringent punishment to such offenders

Concerns

1. the introduction of the death penalty may backfire in cases of child sexual abuse and even have a catastrophic effect. Often, the perpetrators of abuse are family members and having such penalty in the statute book may discourage the registration of the crime itself. Also, it may threaten the life of the minor as the maximum punishment for murder is also the death sentence.
2. The Justice J.S. Verma Committee, which was constituted in 2013 in the aftermath of the Nirbhaya case, after due deliberations found itself against the imposition of death penalty in rape cases.
3. The 262nd Report of the Law Commission of India, 2015, also provides for abolition of the death penalty except in terror cases.
4. It largely diverts attention from the core issues of infrastructural apathy, procedural lapses and trial delays and conveniently evades the fact that ‘it is the certainty of punishment rather than its severity which has deterrence in real sense’.
5.  It is pertinent to note here that even a year-and-a-half after the passage of the Criminal Law (Amendment) Bill, 2018, which introduced the death penalty for rape of a minor girl, such incidents have not been under check.
6. Globally, there is research to support the view that despite stringent punishments, there is no fall in the rate of commission of crimes.
7. According to National Crime Records Bureau data of 2016, the conviction rate in POCSO cases is 29.6% while pendency is as high as 89%. The prescribed time period of two months for trial in such cases is hardly complied with.

Conclusion

The bill is gender neutral and provides for the death penalty for “aggravated penetrative sexual assault of a child”, thus bringing both these pieces of legislation on a par with each other in this respect. With these amendments and with the Supreme Court considering child abuse “intolerable”, there seems to be reasonable hope now that vulnerable children could be safer. The Bill is a step forward in preventing child abuse but the consequences of providing for the death penalty need to be closely observed.