Context:

Protection of Children from Sexual Offences (Amendment) Bill, 2019 has been passed by both the houses of Parliament and set to become the ‘law of the land’.

Details:

• There has been much development with respect to the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• The bill was introduced with an objective of stopping the rampant sexual abuse of children, the Protection of Children from Sexual Offences (Amendment) Bill, 2019.

Highlights of the bill:

The amendment bill has a number of provisions to safeguard children from offences of sexual assault and sexual harassment.

• The Criminal Law (Amendment) Act, 2018 introduced the death penalty for rape of girls below the age of 12. At the same time, the POCSO Act, provides that where the same act constitutes an offence under the POCSO Act and any other law, then the offender will be punished under the Act or such law, whichever provides for greater punishment.
  • This has created an issue as the effect of such an amendment was death penalty for rape of minor girls but not for assault against minor boys.
  • The Bill does away with such a discrepancy. It 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.
• The definition of ‘Sexual Assault’ has been extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for the purpose of penetrative sexual assault.
• The bill is critical because it clearly defines child pornography and makes it punishable.
  • 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.
  • The amendments also penalize the transmitting of pornographic material to children and propose to synchronise it with the Information Technology Act.
• The bill seeks to enhance punishment for sexual offences against children, with a provision of death penalty.
  • According to the amendment bill, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.
  • In case of aggravated penetrative sexual assault, the bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
• To curb child pornography, the Bill provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and fine.
• However, in the event of second or subsequent conviction, the punishment would be up to seven years and fine.

Concerns:

• The Bill provides for death penalty for the rape of minors. The intention of the Bill is to have a deterrent effect; but it can be argued that 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.

Death penalty – a double edged sword:

• The debate is about the probable ramifications of ‘death penalty’ provision in the Act.
• Today, the death penalty has become a prominent tool of symbolic legislation. Many a time, the Government, by introducing the death penalty, portrays itself to be strict and serious with regard to such offences.
• But, 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.
• 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.
• 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.
• The 262nd Report of the Law Commission of India, 2015, also provides for abolition of the death penalty except in terror cases.
• Globally, there is research to support the view that despite stringent punishments, there is no fall in the rate of commission of crimes.
• Robin Conley in his book, Confronting the Death Penalty, has observed that the death penalty may seem just and appropriate in abstract but once you are privy to its practicality, it becomes less appealing.

The Supreme Court data:

• The Supreme Court has recently taken cognisance of the sexual abuse of children, directing its registry to file a case as writ petition with cause title “In-re Alarming Rise in The Number of Reported Child Rape Incidents”.
• 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.
• The court has also taken note of the delay in trials, in turn directing the Central Government to set up special courts within 60 days of the order in each district having more than 100 pending cases under the Act.

The Bill is a step forward in preventing child abuse but the consequences of providing for the death penalty need to be closely observed.