POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography. It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished. The Union Cabinet has approved amending the POCSO Act, to introduce the death penalty as a punishment for certain offences.

  The POCSO Act has been in force since 2012. Although it has acted as a deterrent, there are some instances of child abuse. Example: Gang rape cases in Kathua, J&K; Unnao in Bihar in 2018. The Central Government has decided to make the law stricter and proposed the following amendments to POCSO Act.

• Introduction of the death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault (Sections 4, 5 and 6).
• Cases of sexual assault, by following, will be treated as “aggravated offence”.
  1. police officers
  2. members of the armed forces
  3. public servants
  4. gang-penetrative sexual assault and
  5. relatives
  6. where the survivor is less than 12 years old
• Attempt to inject hormones in children to attain early sexual maturity for the purpose of penetrative sexual assault.
• A hefty fine would be imposed for not deleting, not destroying child pornographic material or not reporting child pornography.

The proposed amendments have been debated at great lengths due to the following concerns

• Guilty till proved innocent:
• Instead of “innocent until proven guilty”, the court assumes that the accused is guilty once the prosecution lays the foundation of the case.
• The Act also presumes that the accused person had a sexual intent when touching the child (Section 30).
• Burden of proof:
• Usually, in criminal cases, the burden of proof lies on the prosecution, and the guilt must be proved beyond reasonable doubt.
• Under POCSO, however, there is a presumption that a person who is prosecuted for an offence has actually committed the offence, unless the contrary is proved (Section 29).
• Thus, POCSO is already a stringent act. The amendments don’t try to make any changes in above sections.
• Affects Right to Life:
• Under Article 21 of the Constitution, a person can only be deprived of their life or liberty in accordance with the procedure established by law. This procedure must be just, fair and reasonable.
• Imposing death penalty in an offence with a presumption of guilt cannot be a just or fair procedure.
• Without quality legal representation, it is virtually impossible for an accused to overcome the presumption of guilt.
• Against the poor:
• Legal process requires high-quality lawyering, which is highly expensive.
• Economic vulnerability impacts the experience of the prisoner during the investigation and trial.
• For daily-wage earners, the legal process means loss of income as well.
• If the accused is in jail, their family will have to collect evidence and find witnesses.
• Neighbours or employers may not readily give evidence for migrant workers.
• About half of the sample of 383 prisoners spoke about lack of access to lawyers. (Death Penalty Project Report, 2016)
• Reports and Recommendations overlooked:
• The 262nd Law Commission Report has recommended universal abolition of the death penalty, except in terror cases.
• Even Justice Verma committee decided against recommending the death penalty for rape.
• Death penalty has not proved to be a deterrent against commission of such heinous acts.
• The Death Penalty Project Report also revealed that Death row prisoners are typically overwhelmingly poor, lower caste, or religious minorities.
• About 76% of death row prisoners were from backward classes and religious minorities.
• Provision of death penalty in rape cases will only make matters worse by slowing the administration of justice. Besides, when victim is the sole witness, as in most sexual assault cases, it will induce murder of rape victims by the perpetrators of the crime to destroy the evidence.

The following issues need to be looked into instead of enforcing death penalty for effective implementation of laws like POSCO:-

• The appalling lack of infrastructure and manpower in the criminal justice system.
• Most districts continue to try cases of child sexual abuse in regular sessions courts, designated as special courts for the sake of compliance
• Investigations are regularly botched up by an understaffed, poorly trained, overburdened police force which has little to no forensic support.
• The fact that the ordinance reduces the time given to the police to file a charge sheet, and to the court to decide appeals against sentencing, displays a complete lack of understanding about the issues on the ground.
• Given the unavailability or unreliability of age-related documents in most parts of the country, reliance is placed on ossification tests to prove the age of the victim in cases under the POCSO.

Way Forward:

• The Supreme Court has ruled in Bachchan Singh case that death penalty should be awarded in the “rarest of the rare”
• Fast track courts and Special trial courts (already in provision of POCSO Act) to provide justice at the earliest to the victims. Instead of death penalty, a combination of heavy financial penalty, life imprisonment with no provision of parole can act as deterrent.
• Reformative justice instead of Retributive justice, along with counselling to get back into the society as a reformed human being.
• Providing sex-education to children, which is neglected in India. This makes them more aware of the various protective laws like POCSO, good touch-bad touch etc.