People protest against the impending release of juvenile accused in Nirbhaya case, at Jantar Mantar, New Delhi, on November 21, 2015. (HT archive)
People protest against the impending release of juvenile accused in Nirbhaya case, at Jantar Mantar, New Delhi, on November 21, 2015. (HT archive)

Decoding the proposed changes in the POCSO Act

The parliamentary standing committee, headed by Congress MP Anand Sharma, has recommended to the Centre that the juvenile delinquency age be reduced from 18 to 16, and all accused above 16 be tried as adults for trials under the POCSO Act
UPDATED ON MAR 23, 2021 06:54 AM IST

In its latest report, the parliamentary standing committee on home affairs has recommended to the Union government that the juvenile delinquency age be reduced from 18 to 16, and all accused above 16 be tried as adults for cases registered under the Protection of Children from Sexual Offences (POCSO) Act.

The standing committee, headed by Congress Member of Parliament (MP), Anand Sharma, presented its report to Rajya Sabha on March 15, with a strong pitch for a review of the threshold age for trials under the POCSO Act. What has the report said and what is the existing legal regime under the POCSO Act?

Why has the report made a recommendation for bringing down the juvenile delinquency age?

The panel underlined a consistent rise in the cases registered under the POCSO Act between 2017 and 2019. The number of POCSO cases in 2017 was 31,668, which increased to 38,802 in 2018. A total of 46,005 cases were registered in 2019.

Noting that there had been a large number of cases under the POCSO Act where delinquent juveniles were the offenders, the committee expressed concerns that minor sexual offenders may commit more serious and heinous crime if the issue was left unaddressed.

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“The committee believes that minor sexual offenders may commit more serious and heinous crimes if left untreated/uncounselled. Therefore, it is very important to relook at these provisions because more and more juveniles are getting involved in such crimes,” stated the report.

It, thus, recommended that the ministry of home affairs should take up the matter with the ministry of women and child development “to review the current age limit of 18 years and see if it can be reduced to 16 years for the applicability of the POCSO Act, 2012.”

What is POCSO Act and the definition of a “child” therein?

POCSO Act came into force in June 2012, putting in place a legal regime to protect the children from offences of sexual assault, harassment and pornography. The provisions under the law provide for safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.

The Act defines different forms of sexual abuse which includes penetrative and non-penetrative assault, sexual harassment, use of child for pornography, child trafficking etc. It makes it the legal duty of a person aware of the offence to report the sexual abuse, failing which the person can be punished with imprisonment of six months or a fine. The law mandates the special court to complete the trial within one year from the date of taking cognisance of the abuse.

Section 1(d) of the Act defines a “child” as any person below the age of 18 years. The definition of “child” applies both to the victims as well as offenders. This definition is in consonance with the definition of “child” under the Juvenile Justice Act. Under Section 2(12) of the Juvenile Justice Act, a “child” means a person who has not completed 18 years of age.

How are juveniles tried under the present system of law?

Delinquents below 18 are tried under the Juvenile Justice Act, 2000, which calls them “children in conflict of law”. Age on the date of the offence is the basis for determining whether a delinquent should be tried as a child or an adult.

Under the juvenile justice system, a delinquent found guilty of committing any offence can be housed in a special home for a maximum period of three years, following which he or she must be released.

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However, the Juvenile Justice Act of 2000 was amended in 2015 with a provision, allowing for delinquents between the age of 16 and 18 to be tried as adults under certain circumstances. While the amended Act does not make it mandatory for all in the age group 16-18 to be tried as adults, it states that those committing a heinous offence — one that attracts a minimum punishment of seven years — can be tried as adults before a regular court instead of a juvenile court.

This amendment was brought in the wake of the December 2012 gang rape case in the national Capital when one of the perpetrators was found to be a juvenile (17 years of age) and his trial was shifted to a juvenile court. On December 20, 2015, despite massive public outcry, the juvenile was released from the correction home after he completed three years.

Set up to revamp the criminal laws, Justice JS Verma committee made several recommendations in 2013 but stated that it was not inclined to reduce the age of a juvenile from 18 to 16. However, the then minister of women and child development, Maneka Gandhi, asserted the need to create a distinction in law based on the gravity of crime committed by a juvenile. The amendment was proposed by her ministry in 2014, leading to the amendment in the Juvenile Justice Act the next year.

There are 21 such sections under the Indian Penal Code alone where the minimum punishment is seven years in jail after conviction. Besides, there are a host of provisions in other laws such as Narcotic Drugs and Psychotropic Substances (NDPS) Act, Arms Act, Unlawful Activities (Prevention) Act, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and Maharashtra Control of Organised Crime Act (MCOCA) in which juveniles can be tried as adults.

What is the procedure to try a juvenile as an adult?

Section 15 of the Juvenile Justice Act lays down the procedure for a “preliminary assessment” of a juvenile above the age of 16 years in cases of heinous offences. There are three parameters for conducting a preliminary assessment to determine whether the child should be tried as an adult or under the juvenile justice system.

This includes his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.

A juvenile court relies on a probation officer’s social investigation report and a government hospital’s mental health report and may also take the assistance of experienced psychologists or psycho-social workers or other experts before arriving at a conclusion. If a juvenile court finds that the child can be tried as an adult, the case is transferred to a designated children’s court, which again decides whether the decision is correct or not.

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Under the new law, juveniles can be sentenced to imprisonment, including imprisonment for life. However, it prohibits imposition of death penalty and life imprisonment without the possibility of release.

There are many sections in the POCSO Act where the minimum punishment is more than seven years in jail. For example, the minimum punishment for penetrative sexual assault under the POCSO Act is ten years in jail whereas it is 20 years’ imprisonment for aggravated penetrative sexual assault. In all these cases, a juvenile can be tried as an adult after complying with the procedure prescribed under the 2015 amendment.

However, there are several other crimes under the POCSO Act in which the maximum punishment is up to seven years in jail or less. The punishment for sexual assault under POCSO Act is a minimum of three years up to a maximum of five years. Punishment for aggravated sexual assault is for a term not less than five years but may extend to seven years. Similarly, POCSO Act provides that whosoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years. Commercial use of pornographic material involving a child is an offence punishable up to five years in jail.

If one looks at the conclusion of the parliamentary committee, it has recommended a change in the definition of “child” under the POCSO Act by reducing the cut off age from 18 to 16. By doing so, irrespective of the nature or severity of the offence, anyone above 16 will have to be tried like an adult if accused under the POCSO Act. However, this will require parliamentary approval and necessary changes in the POCSO Act as well as the Juvenile Justice Act.

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