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

Both the houses of parliament have approved the Protection of Children from Sexual Offences (Amendment) Bill, 2019. The Bill amends the Protection of Children from Sexual Offences Act, 2012 seeks to protect children from offences such as sexual assault, sexual harassment, and pornography.

Features of the Bill

Penetrative Sexual Assault

• The 2012 act provided punishment of imprisonment between seven years to life and a fine for Penetrative Sexual Assault. The Bill increases the minimum punishment from seven years to ten years.
• The bill also provides 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 2012 act defined the aggravated penetrative sexual assault to include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.  It definition also covered 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 punishment for aggravated penetrative sexual assault under the 2012 act was imprisonment between 10 years to life, and a fine.
• The bill adds few more instances under the definition to include assault resulting in death of child, assault committed during a natural calamity, or in any similar situations of violence and  and (ii) administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity to the definition of the aggravated penetrative sexual assault.
• The Bill also increases the minimum punishment from ten years to 20 years, and the maximum punishment to the death penalty.

Child Pornography

• The bill defines child pornography as any visual depiction of sexually explicit conduct involving a child which include photographs, video, digital or computer-generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict a child.
• The amendment also aims to expand the ambit to include pornographic content where adults or young adults pretend to be children.
• The bill aims to enhance the fine for possessing child porn but not deleting or reporting it to Rs 5,000 from the earlier proposal of Rs 1,000.
• Further if a person stores such content for distributing it further, except for when presenting it in court as evidence, the accused could face a punishment of up to three years.

The bill has aspects which have to be welcomed as it provides for provisions such as specific definition to what ‘child pornography’ is; ‘using a child for pornographic purposes’ and for ‘possessing or storing pornography involving a child’ is punishable. It has also widened the ambit of ‘Aggravated sexual assault’.

Sexual Abuse of Minor Boys

The Criminal Law (Amendment) Act, 2018 had introduced the death penalty for rape of girls below the age of 12. Even the POCSO Act, under Section 42 provided that where the same act constitutes an offence under the said 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 the death penalty for rape of minor girls but not for assault against minor boys.

The 2019 bill addresses this discrepancy by making the law gender-neutral. The bill provides 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.

Sexual Abuse of Children

Taking cognisance of the sexual abuse of children the Supreme Court has directed the registry to file a case as writ petition with cause title “In-re Alarming Rise in The Number of Reported Child Rape Incidents”. The Supreme Court is advocating for a ‘zero-tolerance policy’ toward child rape.  The data collected by the Supreme Court n sexual crimes against children shows the following:

• 24,212 FIRs were filed across India from January to June 2019.
• According to the National CrimeRecords Bureau data of 2016, the conviction rate in POCSO cases was 29.6% while pendency rate was as high as 89%. ‘
• The prescribed time period of two months for trial in such cases is hardly complied with.

Taking note of the delay in trials the Supreme Court has directed 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.

Death Penalty: Counterproductive?

The other important aspect of the bill is the introduction of the death penalty for the rape of minors. The government justifies the death penalty for child sex abuse by referring to the judgments of the Supreme Court in Machhi Singh(1983) and Devender Pal Singh (2002) wherein the court has held that the death penalty can be awarded only in rarest of rare cases and the death penalty will have a deterrent effect.

But the bill fails to acknowledge that the death penalty could 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. The death penalty may even threaten the life of the minor as the maximum punishment for murder is also the death sentence.

In imposing the death penalty the government has sidelined the recommendations of:

• Justice J.S. Verma Committee constituted in 2013 in the aftermath of the Nirbhaya case, after due deliberations found itself against the imposition of the death penalty in rape cases.
• The 262nd Report of the Law Commission of India, 2015 which provides for the abolition of the death penalty except in terror cases.

Death Penalty: Deterrence?

A major argument in favour of the death penalty is it would act as a deterrent factor. Often the Government by introducing the death penalty portrays itself to be strict and serious in dealing with such offences. Time and again the death penalty is largely diverting the 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 a real sense.

It must be noted 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. Hence the debate of child sex abuse or any other heinous crime must not be about retaining or abolishing the death penalty but the probable ramifications of its provision in the Act.

Safer adobe for Children

With these amendments and 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 must be closely observed.