Strengthening POCSO Act 2012 | 24 Sep 2024

Source: HT 

Why in News? 

Recently, the Supreme Court ruled that watching or possessing sexually explicit material involving minors is illegal under the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

• It constitutes a punishable offence under the POCSO Act, 2012 regardless of whether the material is further shared or transmitted.  
• It overturned a prior ruling by the Madras High Court, which had determined that private viewing of child pornography did not amount to an offence without further distribution. 

What are Key Highlights of the Supreme Court Ruling? 

• Redefinition of Terminology: The Supreme Court (SC) has urged the Union government to replace the term "child pornography" with "child sexual exploitative and abuse material" (CSEAM).  
  • This change is significant because the term "pornography" often implies consensual adult conduct, failing to accurately represent abuse and exploitation. 
• Expansion of Section 15 of the POCSO Act, 2012: The SC provided a stricter interpretation of the term “storage of child pornography” under Section 15 of the POCSO Act, 2012. Previously, this provision primarily addressed storage for commercial purposes. The court's interpretation of Section 15 introduces three key offences. 
  • Possession Without Reporting: A person who stores or possesses child pornography must delete, destroy, or report it to the designated authority. Failure to do so can be punishable under Section 15(1). 
  • Intent to Transmit or Distribute: Individuals who possess child pornography intending to transmit or display it in any manner, except for the purpose of reporting, can face charges under Section 15(2). 
  • Commercial Possession: Storing child pornography for commercial purposes falls under Section 15(3), which outlines the most severe penalties. 
• Concept of Inchoate Offences: The ruling classifies the offences under Section 15 as "inchoate" offences, meaning they are preparatory actions taken toward committing further crimes. 
• Redefinition of Possession: The court expanded the definition of "possession" in child pornography cases. It now includes "constructive possession," which refers to situations where an individual may not physically hold the material but has the ability to control it and knowledge of that control.   
  • E.g., Watching child pornography online without downloading it can still be considered in possession.  
  • If an individual receives a link to child pornography but closes it without reporting, they may be held accountable if they do not inform authorities, even if they do not retain physical possession after closing the link. 
• Educational Reforms: The court urged the government to promote comprehensive sex education in schools and society, countering misconceptions that often stigmatised discussions about sexual health. 
  • This education should include topics such as consent, healthy relationships, gender equality, and respect for diversity. 
• Awareness About Pocso Act, 2012: Sections 43 and 44 of the POCSO Act, 2012 require central and state governments, along with the National Commission for Protection of Child Rights (NCPCR), to promote widespread awareness of the Act. 
• Formation of an Expert Committee: An expert committee should be tasked with devising comprehensive programs for health and sex education and increasing awareness of the POCSO Act, 2012 among children. 
• Victim Support and Awareness: The judgement underscored the need for robust support systems for victims of CSEAM, including psychological counselling, therapeutic interventions, and educational support. 
  • Programmes like cognitive behavioural therapy (CBT) may help address the cognitive distortions that fuel such behaviour among offenders.

What is the POCSO Act? 

• About: The law aims to address offences of sexual exploitation and sexual abuse of children. The Act defines a child as any person below the age of 18 years. 
  • It was enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992. 
• Features: 
  • Gender-Neutral Nature: The Act recognises that both girls and boys can be victims of sexual abuse and that such abuse is a crime regardless of the gender of the victim. 
  • Confidentiality of Victim’s Identity: Section 23 of the POCSO Act, 2012 mandates that the identity of child victims must be kept confidential. Media reports cannot disclose any details that could reveal the victim’s identity, including their name, address, and family information.  
  • Mandatory Reporting of Child Abuse Cases: Sections 19 to 22 compel individuals who have knowledge or reasonable suspicion of such offenses to report them to concerned authorities.. 
• Gaps in Implementation of the POCSO Act, 2012: 
  • Lack of Support Persons: A critical gap identified in the implementation of the POCSO Act, 2012 is the absence of “support persons” for victims. The Supreme Court found that in 96% of POCSO cases, victims were not provided with the necessary support throughout the legal process.  
    • A support person may be a person or organisation working in the field of child rights or child protection. 
  • Insufficient Designation of POCSO Courts: Not all districts have designated POCSO courts. As of 2022, only 408 POCSO courts were established across 28 states as part of the Fast Track Special Court’s Scheme. 
  • Shortage of Special Public Prosecutors: There is a lack of Special Public Prosecutors specifically trained to handle POCSO cases.  

Conclusion 

A coordinated effort among stakeholders, including educators, healthcare providers, and law enforcement, is vital for early intervention in child sexual exploitation. Societal responsibility and a shift in attitudes are essential to prevent victimisation and support recovery, ensuring that victims can heal and regain their dignity and hope.