1. POCSO: The Criminal Law
Amendment Ordinance, 2018
SUBMITTED BY MISS RISHU MALA DHIMAN
LL.B LL.M (CONTITUTION AND ENVIRONMENTAL LAW)
LAW IS TOOL FOR THE CHANGE IN THE SOCIETY
3. INTRODUCTION:
In order to effectively address the heinous crimes of sexual abuse and
sexual exploitation of children through less ambiguous and more stringent legal
provisions, the Ministry of Women and Child Development championed the
introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The Act defines a child as any person below eighteen years of age, and regards the
best interests and well-being of the child as being of paramount importance at every
stage, to ensure the healthy physical, emotional, intellectual and social development of
the child.
4. It defines different forms of sexual abuse, including penetrative and non-
penetrative assault, as well as sexual harassment and pornography, and deems a
sexual assault to be “aggravated” under certain circumstances, such as when the
abused child is mentally ill or when the abuse is committed by a person in a position
of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or
doctor. People who traffic children for sexual purposes are also punishable under the
provisions relating to abetment in the Act. The Act prescribes stringent punishment
graded as per the gravity of the offence, with a maximum term of rigorous
imprisonment for life, and fine.
5. According to a report by child rights NGO CRY, sexual offence is committed against
a child in India every 15 minutes and there has been an increase of more than 500 per
cent over the past 10 years in crime against minors.
"While Uttar Pradesh tops the list with 15 per cent of recorded crimes against
children, Maharashtra and Madhya Pradesh closely follow with 14 per cent and 13 per
cent respectively," the report said.
Available at: https://www.indiatimes.com/news/india/6-horrendous-rape-cases-in-2018-so-far-show-that-minors-
are-biggest-victims-of-sexual-assaults-343892.html
6. 1. 8-year-old raped in Kathua
An eight-year-old innocent girl was brutally raped for days. She was sedated, tortured
before finally killing her inside a temple. The nomadic girl had gone missing on
January 10 and her body was recovered from the Rasana forest on January 17.
according to the investigation, it came out that the innocent Bakherwal girl was raped
and killed to make the nomads move out of the area in fear. Yes, just to make them
leave Kathua.
2. Sitapur gangrape
A father allegedly ‘gifted’ his daughter to his friends and later joined them to gang-
rape her in Sitapur district, about 70 km away from Lucknow. Isn't it disgusting?
One of the three accused in the crime was arrested on Tuesday while the others are
on the run.
Police said the accused who is in his late 50s — and his daughter were visiting a fair in
Kamlapur area on the evening of April 15. After attending the fair, the accused called
his friend Maan Singh, a history-sheeter, to the spot.
7. 3. 13-year-old raped 9-year-old in Uttar Pradesh
This is even more shocking, a 13-year-old boy allegedly raped a nine-year-old girl at
his home in Mainpuri, Uttar Pradesh. The boy had reportedly lured the girl with a
silver ring. According to police the alleged rape was committed on Wednesday when
the girl was alone at home. The suspect had lured her to his house and committed
the crime.
4.10-year-old raped and killed in Chhattisgarh
A 25-year-old man raped and then killed a 10-year-old in Chhattisgarh during a
wedding. Police said the accused aged 25, who has been arrested, admitted to have
raped and killed the child by smashing her head with a stone. Finding everyone
involved in the wedding, he lured the girl away and committed the crime. The body of
the child was found dumped in a dry riverbed in the village.
8. 5. 11-year-old raped in Assam
In Nagaon district in Assam, an 11-year-old girl was raped and then burnt alive, an
entire village came together to help the police catch the accused. A 21-year-old and
two minor boys from the same village have already been arrested. At Lalung Gaon,
150 kilometres from state capital Guwahati, the girl who was all alone at home was
raped on March 23. "We were working in the field when villagers started calling us.
We came home and saw our daughter was almost completely burnt," the girl's mother
said.
6. 4-month-old baby raped in Indore
What was her fault? Was she wearing revealing clothes? Or did she invite rape? A
four-month-old baby was raped and murdered in the Rajwada area. The infant’s body
was found in the basement area of the heritage Shiv Vilas Palace, blood smears on the
stairs telling a horror story. Hardened policemen were nearly moved to tears as they
conducted a preliminary examination of the ravaged body and carried it away in a
little bundle. A suspect, a member of the family, is in custody.
9. 7. Gangrape-cum-murder of a Class 10 girl in in Shimla .
A 16-year-old Gudiya (the name given to the victim by locals) was allegedly waylaid by
six people while she was returning home from school. They injected the girl with
intoxicants before taking turns to rape her, strangling her at the same time. The marks
on her body bear witness to the fact that she was bitten savagely by her captors. Then
the six dragged her body away from the road and dumped it in a forested area near
her home at Kotkhai tehsil’s Halaila village.
11. After analyzing and watching the increasing incidents of the child rape in India the
legislature has come up with an ordinance providing for the death penalty for rapists
of girls below the age of 12 years and other stringent penal provisions for rape has
been promulgated in order to punish the accuseds of committing rape with the minor
girls. The ordinance is known as “The Criminal Law Amendment Ordinance, 2018, and
amends Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act and
Protection of Children from Sexual Offences Act.
12. The Criminal Law (Amendment) Ordinance, 2018 was promulgated on April 21,
2018. It amends certain laws related to rape of minors. The amendments are as
follows:
Amendments to Indian Penal Code (IPC), 1860:
Enhanced punishment for rape: Under IPC, 1860, the offence of rape is punishable
with a rigorous imprisonment of at least seven years up to life imprisonment, along
with fine. The minimum imprisonment has been increased from seven years to ten
years.
13. AGE GROUP OFFENCES PUNISHMENT
BELOW 12
YEARS
RAPE Rigorous imprisonment of at least 20 years extendable to life
imprisonment, along with fine to meet medical expenses and
rehabilitation cost of the victim, or, death.
GANG RAPE Life imprisonment, along with fine, to meet medical expenses and
rehabilitation cost of the victim, or, death.
BELOW 16
YEARS
RAPE Previously, the punishment for rape was imprisonment of ten years
extendable to life imprisonment, along with fine. This has been
enhanced to a minimum rigorous imprisonment of at least 20 years,
extendable to life imprisonment, along with fine, to meet medical
expenses and rehabilitation cost of victim.
GANG RAPE Life imprisonment, along with fine, to meet medical expenses and
rehabilitation cost of victim.
14. Amendments to Protection of Children from Sexual Offences Act (POCSO), 2012:
Under the POCSO, 2012, for rape of minors (below 18 years), the punishment is at
least seven years or life imprisonment, along with a fine. For rape of minors below the
age of 12 years or for gang rape of minors, the punishment is rigorous imprisonment
of at least ten years or life imprisonment, along with fine. The Ordinance amends the
POCSO, 2012 to state that for all such offences, the punishment which is higher
between the POCSO, 2012 and IPC, 1860, will apply.
15. Amendments to Code of Criminal Procedure (CrPC), 1973:
Time-bound investigation: The CrPC, 1973 states that an investigation into rape of a
child must be completed within three months. The Ordinance reduces the time for
completion of investigation from three months to two months. Further, the
Ordinance extends this timeline to all offences of rape (including rape, gang rape, and
rape of minors under the age of 12 years and 16 years).
Appeal: The Ordinance states that any appeal against a sentence related to rape
cases must be disposed of within six months.
Anticipatory Bail: The CrPC, 1973 lists conditions for grant of anticipatory bail. The
Ordinance makes the provision of anticipatory bail not applicable to rape and gang
rape of minor girls below 12 years of age and below 16 years of age.
16. Compensation: The CrPC, 1973 provides that all rape victims will be given free
medical treatment and compensation by state government. This provision has been
extended to cover rape and gang rape of minor girls below 12 years and below 16
years of age.
Prior sanction: CrPC, 1973 states that prior sanction is required for prosecution of all
public servants, except for certain offences, like rape. This provision has been
extended to cover rape and gang rape of minor girls below 12 years and below 16
years of age.
17. Amendments to Indian Evidence Act, 1872:
Under the Evidence Act, in determining whether the act was consensual or
not, the past sexual experience or character of the victim is disregarded. This
provision has been extended to the rape and gang rape of minor girls below 12 years
of age and below 16 years of age.
18. POCSO Act, 2012
The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was
formulated in order to effectively address sexual abuse and sexual exploitation of
children. The Protection of Children from Sexual Offences Act, 2012 received the
President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th
June, 2012. The Act defines a child as any person below eighteen years of age. It
defines different forms of sexual abuse, including penetrative and non-penetrative
assault, as well as sexual harassment and pornography. It deems a sexual assault to be
“aggravated” under certain circumstances, such as when the abused child is mentally
ill or when the abuse is committed by a person in a position of trust or authority like a
family member, police officer, teacher, or doctor.
19. The Act also casts the police in the role of child protectors during the investigative
process. Thus, the police personnel receiving a report of sexual abuse of a child are
given the responsibility of making urgent arrangements for the care and protection of
the child, such as obtaining emergency medical treatment for the child and placing
the child in a shelter home, and bringing the matter in front of the CWC, should the
need arise.
The Act further makes provisions for avoiding the re-victimisation of the child at the
hands of the judicial system. It provides for special courts that conduct the trial in-
camera and without revealing the identity of the child, in a manner that is as child-
friendly as possible. Hence, the child may have a parent or other trusted person
present at the time of testifying and can call for assistance from an interpreter, special
educator, or other professional while giving evidence.
20. Above all, the Act stipulates that a case of child sexual abuse must be disposed of
within one year from the date the offence is reported.
The Act also provides for mandatory reporting of sexual offences. This casts a
legal duty upon a person who has knowledge that a child has been sexually abused
to report the offence; if he fails to do so, he may be punished with six months’
imprisonment and/ or a fine.