To deal with sexual assault and exploitation of children, the government has established a special law, POCSO Act, 2012. The said law sanctions any violation acknowledged sexual abuse of children by prescribing strict punishments keeping in mind the gravity of violations. There are different developments of the Act to ensure justice to won. Medical examination of the victim must be done with a minimum of pressure. The POCSO Amendment Act 2019 enacted to increase the punishment upto death penalty and incorporated steps to curb child pornography. However, the amendment seems arbitrary and unclear.
POCSO AMENDMENT ACT, 2019
Here declare certain provisions of Amendment of 2019 which the authors suggested to be arbitrary and vague in nature.
THE REASONABLE CLASSIFICATION
Section 4 (2) of the POCSO Act, which was inserted by the POCSO Amendment Act of 2019 provides for classification which is unreasonable and violates Article 14 of the Constitution.
Article 14 provides for “equal protection of the law”. These laws prohibit the class but allowed a reasonable classification of people or things.The classic communications test set forth in the case of Anwar Ali Sarkar said;
“In order to pass the test of classification allowed two conditions must be fulfilled:
- That classification should be established in differentia understood that distinguish people who are grouped together from others left the group, and
- Its differentia must have a rational relationship with the object sought to be achieved by the Act. The differentia which is the basis of classification and the object of the Act is different and what is required is that there should be a relationship between them.
This test set by the Hon’ble Supreme Court in the case of Anwar Ali Sarkar has affirmed and applied in subsequent cases dealing with the issue of infringement of Article 14 by the court. For example, in D. S. Nakara v. Union of India, the classification made between pensioners who retired before a certain date and those who retire after that date held unreasonable by the Court and held arbitrarily. As such, it is a violation of Article 14 and as a result, Regulations 34 Central Service rules aside.
Before the law was passed in 2019, punishment for penetrative sexual assault as per POCSO Act 2012 was of seven years in prison to life and also fine.The Act of 2019 increased the minimum term of the sentence ‘seven’ to ‘ten’ years by amending Article 4(1)
The Act also inserted two sub-clauses to Section 4: Section 4(2) and 4(3).
Now, a new sub-clause (2) inserted by Act penalties for offenders who commit penetrative sexual assault on a child under sixteen. It is important to note that the minimum prison term (twenty years) has also increased in this new article is inserted.
By incorporating sub-paragraph (2), the legislature makes the classification of a child under sixteen years old and a boy who are above the age of sixteen but under eighteen years of age. However, the legislature has defined “child” as “any person under the age of eighteen years, for the purposes of this Act. Thus, the above classification should be reasonable classification because it was done in the same group, namely, ‘children’.
No differentia understood in this classification. The differentia in this classification is not clear, because there is uncertainty in determining the age of maturity factor. For example, A child of seventeen years may have the same maturity as one of fifteen years and in some cases, it may be otherwise. At times, some may reach maturity at the age of nineteen only, while some may reach maturity at the age of seventeen itself. A child of fifteen years may appear like a nineteen.
It should be noted that the differentia must have a rational relationship with the object sought to be achieved by the Act. The purpose of this Act is to protect children from crimes of sexual violence, sexual harassment and pornography and provides for the establishment of the Special Court for the trial of the offense and for matters connected therewith or incidental extra. Therefore, the main purpose of laws that protect children, this differentia has absolutely no nexus to the object sought to be achieved by the Act. This classification provides a way for the thought that raping a child under sixteen years of an offense graver, while on the other side of raping a child sixteen or seventeen years old, who may have the same maturity as several children belonging to another class is not considered a violation graver , This classification thus, is unreasonable and therefore violative of Article 14.
Also, a new sub-clause inserted (3) states as “Fines imposed under subsection (1) must be fair and reasonable and is paid to the victim to cover the cost of treatment and rehabilitation of victims.” It is pertinent to note that the newly inserted clause (2) also provides for the payment of fines in case of violations, but sub-paragraph (3) does not speak of fines imposed by Article 4 (2). Is it not necessary that the fines imposed under Article 4 (2) should be reasonable and should not be used for the rehabilitation of victims?
Article 11 and 12 of the POSCO act provide for provisions on sexual harassment and punishment for it. Section 11 states as “Someone said to sexually abusing a child when the person with the intention of sexual …” In addition, it has been provided that any question involving “sexual intent” will be a question of fact. It is a fact ascertained that y is known that questions involving the intent are very difficult to prove before the court of law. Also, there arises the question of whether the perpetrator acted Conduct set forth in Article 11 without sexual intent, will not amount to sexual harassment? Even Section 354A of the Indian Penal Code, which describes sexual harassment does not use the term “sexual intent”, because not a mandatory requirement for sexual harassment. Thus, the term sexual intention of creating a loophole in Section 11 of the Act, which will support the offender.
CHAOS REGARDING THE UNDERSTANDING OF THE LIFE IMPRISONMENT
The POCSO Act leaves some controversy and confusion regarding the understanding of the concept of life in prison. Section 4 (2) and 6 (1) is inserted by POCSO Act 2019 the use of the words “life imprisonment, which means prison for the rest of the natural life of man”, not only use the term “life imprisonment” as in Section 4, 6, 14 (2), 14 (3) of the principal. This new insertion of words leads to the misconception that the latter section does not provide for life imprisonment for the rest of the people’s natural life. It is not necessary to be mentioned in the provisions of that life imprisonment means imprisonment for the rest of the natural life of the man, because he considered that the existing provisions did not mention the more so, does not mean the same.
Article 53 of the Indian Penal Code provides for prison life. Prison life imprisonment means walking for the remaining period of the convict’s natural life, unless alleviated or transmitted by the authorities. “Imprisonment life is not the same as 14 years or 20 years in prison. There is no provision either in the IPC or the Code of Criminal Procedure whereby life imprisonment could be treated as 14 or 20 years without remission by the appropriate government official. He can, however, be released if the appropriate government passed a separate order handed portion not over punishment. ”
While the Court in India has insisted on the question that a prison term for life means imprisonment for the remainder of natural life, to include a provision such as Section 4 (2) 6 and 6 (1) bearing words like, very much tend to ignore life imprisonment. It also lost a deterrent since the perpetrators punished under Section 14 (2) and 14 (3) will use this as a loophole and escape from their original sentence of life in prison.
Also, one more important point to note in this regard is that, is it possible to calculate the term “One and a half of imprisonment for life”? 18 Section 10 of the Act provides for punishment for an attempt to commit a crime. It provides that the maximum penalty will be a term that may include one half of life imprisonment. Maybe 20 or 30 years or term that is not fixed. Not fixing the maximum term of punishment, he left for the judges to decide it. The term “one and a half of imprisonment for life ‘is uncertain. This led to many interpretations possible to fix a maximum term of punishment and hence the provisions are clearly and therefore violative of Article 14 of the constitution.
INCLUDING DEATH PENALTY AS A PUNISHMENT
The new changes are made in the Act by POCSO Act of 2019 actually reduced the deterrent effect by including the death penalty as punishment. Section 6 (1), which included replacing section 6 of the principal Act the death penalty as a maximum sentence for aggravated penetrative sexual assault.
The introduction of the death penalty may be even more problematic in cases such as where the perpetrator is a family member of a victim or victims. Corresponding crime reports National Crime Records Bureau (NCRB) in India, in 2016, 94.6% of the cases registered under rape with penetrative sexual violence against children committed by people known to the victim. Viewed in a realistic perspective, there is a very remote possibility in cases where a child is sexually abused by family members or relatives, they will come forward and register a complaint, knowing that the complaint will cause the death of the person concerned. Thus, there is a high possibility that a smaller number of cases reported. The introduction of the death penalty may also increase the likelihood of rape and murder case of a high, since the disclosure of sexual acts with the survivors can lead to the death penalty.
Furthermore, as stated in the 2015 report of the Law Commission on the death penalty, there is no empirical evidence suggests that the death penalty has a deterrent effect over and above the life imprisonment.
TREATING A MINOR ACCUSED AS A JUVENILE
section 34 of Amendedact states that when any offense committed by a child as specified in the terms, they should be treated under the Juvenile Justice Act, 2015, and corresponding questions with regard to the person’s age is in dispute, shall be determined by the Special Court. (11) In carefully from the top, states that if there is a child less than 18 years of doing any offense specified under the Act should be addressed under the Act Juvenile and aspects of age if he is underage or not is a legal question to be answered by Special court.
Accordingly, when minor accused of committing a sexual offense, the Court will look at questionas to whether he should be treated under the Juvenile Justice Act or POCSO Act. This is done on the basis of questioning the age of the accused, but the attacks do not ever considered. As a result, minors who commit heinous crimes are not punished for the severity of the offenses they did.
In the famous case of Kathua Rape, in which an innocent 8 year old girl kidnapped and raped by eight accused, the six of them were found guilty and one was acquitted on benefit of the doubt and the other defendants who are minors, tried under the courts. It is pertinent to note that, the researchers state that on 10th Jan she was kidnapped by a teenager and later on the same day, he was taken to the temple and raped by him, and it was also found that the teen had been strangled and destroyed the face of the deceased with a stone that causes Dead. The most important part is that the prime accused juvenile defendant who has not been found guilty of such a heinous crime, “half justice” only given to families of the deceased. But until now, the rest of the accused have not been hanged and the judicial process drags, with various petitions filed by the accused.
Even in Nirbhaya Case, a teenager who was the main reason for the death of the deceased, as it has been hit with an iron rod, is treated as a juvenile and given a prison sentence of three years, now he works as a cook in several parts of southern nation. Although it is an indisputable fact that the teen action has also led to the rape and death of the deceased, they are protected by a shield that he was a teenager. This shield should be split and each defendant may be minor who has committed any sexual offense, should be treated as an adult, for justice to prevail.
section 34 of the Act, shall be such that, when there is minor who a defendant who has committed a heinous crime, he should be treated as an adult based on the actions and must be given extreme punishment. Aspects treat the defendant as a minor under the Juvenile Justice Act, because of their age can not be accepted. This fallacy under Article 34 amended such that it helps in achieving the object code and to ensure that justice is given to the right people.
It is true that the loopholes can be made, but the law is good and efficient. The POCSO Act is a comprehensive law that was initiated to protect children from sexual abuse and exploitation. Given the well-being of the people, the legislature is to make laws, and there is no way to be the intent of the legislation will create legal uncertainty and inefficient. However, the amendment is arbitrary and contrary to fair procedures, at certain points it profitable actors. The authors noticed that certain provisions of the amendment shall be removed with the procurement law in the sense of its unvarnished.
Author: VAMSI KRISHNA GANGINENI,
IFIM LAW SCHOOL 1ST YEAR