TOPIC: -

POCSO AMENDMENT BILL 2019:

LOOPHOLES IN THE AMENDED ACT

NAME: PLABANI PANDA

COURSE: BBA.LLB [B]
ROLL.NO: 1982063
 POCSO AMENDMENT BILL 2019 :
LOOPHOLES IN THE AMENDED ACT
BY PLABANI PANDA [1982063]

This aticle deals with the amendment bill to the The Protection of Children
from Sexual Offences Act 2012 that was enacted to provide a robust legal
framework for the protection of children from offences of sexual assault,
sexual harassment and pornography, while safeguarding the interest of the
child at every stage of judicial process. The bill seeks to enhance imprisonment,
including a provision for death penalty, for committing sexual crimes against
children. Ever since the amendment there have been conflicting views
regarding the newly added rigid provisions .Even after mandating such
stringent laws, the problem lies with the poor conviction rate under the law.
Thousands of such cases end up in acquittal of the accused due to lack of
evidence. Such amendments with aspect to severe punishments should not
deflect our attention from the problems that the existing act has been trying to
tackle so far, be it lack of specialized courts, sensitization for investigators and
prosecutors in dealing with child victims etc. Another concern with regard to
the implementation is allocating the budget in an efficient manner despite of
making provision of good amounts. Regardless of having such good aspects,
the penal punishment of death penalty might be more of a problem than of a
solution. This could lead to more murders so as to deter the survivor from
disclosing about the sexual assault. Just enacting strict provisions might not
always be the sure shot solution when it comes to offences of this nature.
Hence this article focuses on the loopholes with regard to that of the newly
amended act and its provisions led down by the government.
 INTRODUCTION
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was designed to
efficiently address the heinous crimes of sexual abuse and sexual exploitation of children
in India. The Act is a gender-neutral legislation which defines a child as any individual
below 18 years of age. It provides protection from sexual abuse including penetrative
sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual
assault, sexual harassment, using the child for pornographic purposes and trafficking of
children for sexual purposes. It stipulates stringent punishment graded as per the
severity of the offence, with a maximum term of rigorous imprisonment for life and
fine. But some questions arise with regards to the effectiveness of the newly mandated
law. Now what actually makes the amendment act different? Will now the laws be
effective with this amendment? These are some questions that this article would be
dealing with.

Let’s have a look at the key changes that has been proposed in the amendment bill 2019.
The penalty for such offence under Section 4 Penetrative Sexual Assault is
imprisonment between 7 years to life and fine. The bill increases the penalty from 7
years to 10 years. It further provides that if an individual commits Penetrative Sexual
Assault on a child below the age of 16 years, they will be punished with imprisonment to
life with fine between 20 years. The Bill adds 2 additional grounds to the definition of
Aggravated Penetrative Sexual Assault (Section 5 and 6) which contains: the assault
resultant in death of a child, assault committed during a natural calamity or any similar
situations of violence. The penalty for APSA is now 10 years of imprisonment for life
with a fine. The Bill also increases the punishment from 10 years to 20 years and the
maximum punishment to the death penalty. Under Aggravated Sexual Assault (Section
9) the Bill adds 2 more offences to the definition. Assault committed during a natural
calamity and administrating or help in administering any hormone or chemical substance
to a child for purpose of attaining early sexual maturity. Under Pornographic Purposes
(Section 14) it defines child pornography as any visual depiction of sexually explicit
conduct involving a child including photographs, video, digital or computer-generated
image indistinguishable from an actual child. The Act penalizes Storage of
Pornographic Material (Section 15) for commercial purposes with a punishment of up
to 3 years or fine or both. The Bill amends this to provide that the punishment can be
imprisonment between 3 years to 5 years, or fine or both. Also, the Bill adds 2 other
offences- failing to destroy, delete or report pornographic material involving a child and
transmitting, displaying, distributing such material except for the purpose of reporting it.
STRINGENT PROVISIONS, WEAK IMPLEMENTATION ?

The POCSO Amendment Bill 2019 posits the death penalty for raping a child below 12
years of age. However, the death penalty has never been a solution to combat rapes or
forms of crime. There is still no substantive education system and progress in political
statements about rape and rape legislations in India and rape laws like POCSO distressing
from poor implementation. Rather increasing the severity with regards to the conviction it
is important to look after the issue with the low conviction rate under such strict laws.
Further is the question that even if the law is made stringent, will it be able to cover the
loopholes which generally come in the way of legal recourse in seeking justice in our country.

This extreme punishment might be able to safeguard the female sex from sexual atrocities,
especially when such crimes are under reported and the victim is fearful of the case going
public. In addition is the unfortunate reality of the offenders being known to the victims in
majority of the cases and at times is a close relative or a friend. The abysmally low conviction
rate of sexual assaulters in our country should make us reflect on solutions going beyond the
sanctioning of the death sentence on the perpetrator of the rape. We should be thinking of ways
of overhauling the legal enforcement system including the police forces and the judicial
machinery for prompt, sensitive responses to give justice to rape victims and bring down their
trauma and humiliating experience so that the rapist is put to shame rather than the victim being
made to feel guilty. It is more appropriate to focus on mechanisms to protect the victims and
more significantly to provide safer environment for girls and women and bring down
incidences of rape.

Death penalty in cases of rape can be more dangerous to the victim than helpful. It would
increase the chances of murder cases as the disclosure of sexual assault by the victim could be
a threat for the offender and eventually to get him on the said it will lead to the death of the
victim. It is a myth to punish child rape with the death penalty to reduce child sexual abuse.
Since the causes of rape are variable and subjective, it can lead to some short term
reduction. India must acknowledge its weak performance in enforcing the law and take
immediate action to close the widening gap between principle and practice.

Instead of amending laws, the Government is supposed to focus on existing laws and their
slow paced justice delivery. A prolonged legal process often adds to the victim’s suffering.
Victims have to wait for years to get justice; even in cases where death penalty has been
handed out, those convicted may have chances to appeal against their sentence. Hence we
need to strengthen our liveliness and efforts on existing legislation rather than looking to
amend more laws and making still further newer laws, strange to our society, culture,
lifestyles, conventions and hard realities of the people.
https://nludelhi.ac.in/home.aspx

https://www.thehindu.com/news/national/rajya-sabha-passes-pocso-amendment-bill-
2019/article28700223.ece

https://www.indiatoday.in/india/story/rajya-sabha-passes-pocso-protection-of-children-from-sexual-
offences-amendment-bill-1573122-2019-07-24

https://www.thecitizen.in/index.php/en/NewsDetail/index/9/17309/Death-Penalty-for-Rape-of-Kids-is-
No-Solution