Short title

The Protection of Children from Sexual Offences (Amendment) Act, 2019

Act number

Act No. 25 of 2019

Assent

5 August 2019

Sections amended

Sections 2, 4, 5, 6, 9, 14, 15 and 42, and the rule-making power

What it did not change

The definition of a child, the structure of the four graded offences, and the child-friendly procedure in Chapters V to VIII

Section 4: penetrative sexual assault

Imprisonment of not less than seven years, extending to imprisonment for life, and fine

Not less than TEN YEARS, extending to imprisonment for life, and fine; and where the child is BELOW SIXTEEN YEARS, not less than TWENTY YEARS, extending to imprisonment for life, and fine

Section 6: aggravated penetrative sexual assault

Rigorous imprisonment of not less than ten years, extending to imprisonment for life, and fine

Rigorous imprisonment of not less than TWENTY YEARS, extending to imprisonment for the REMAINDER OF NATURAL LIFE, or with DEATH, and fine

Section 10: aggravated sexual assault

Imprisonment of not less than five years, extending to seven years, and fine

Imprisonment of not less than FIVE YEARS, extending to SEVEN YEARS, and fine, with the aggravating circumstances in Section 9 widened

Section 14: using a child for pornographic purposes

Punishment on first conviction extending to five years and fine, with a longer term on a subsequent conviction

Not less than FIVE YEARS and fine; and on a second or subsequent conviction, not less than SEVEN YEARS and fine, with graver punishment where the child is also subjected to an offence under Sections 3, 5, 7 or 9

Section 15: storage of pornographic material

A single offence of storage for commercial purposes, punishable with imprisonment up to three years, or fine, or both

THREE SEPARATE OFFENCES, dealt with below

§ Section 6 and the death penalty

The Amendment introduced the death penalty as the maximum punishment for aggravated penetrative sexual assault under Section 6, alongside a minimum of twenty years and the alternative of imprisonment for the remainder of natural life.

It is a maximum and not a mandatory sentence. The court retains its discretion, and the ordinary sentencing principles, including the requirement of special reasons for the extreme penalty, continue to apply.

The stated object was deterrence in the gravest cases, and the Amendment was introduced against the background of public concern following a series of grave offences against very young children.

The policy is debated. It has been argued that a death penalty for a non-homicidal offence may reduce reporting where the offender is a family member, and may give an offender an incentive to silence the child. These are points to note in an answer, on both sides.

§ Sections 5 and 9 were both widened

Among the clauses added:

• An offence committed during a natural calamity, or in any similar situation of violence, when the child's vulnerability is at its greatest and the ordinary protections have broken down.

• Administering or helping in administering any hormone or any chemical substance to a child for the purpose of attaining early sexual maturity, which had no counterpart in the Act as originally enacted.

• The existing scheme was preserved. Aggravation continues to turn chiefly on who the offender is, a police officer, a member of the armed forces, a public servant, the staff of a jail, remand home, hospital or educational institution, a relative, or a person in a position of trust or authority; and on the circumstances, including the age and condition of the child and the consequences of the act.

15(1)

Storing or possessing child pornographic material in any form, but FAILING TO DELETE, DESTROY OR REPORT it to the designated authority with an intention to share or transmit it

Fine of not less than five thousand rupees; and on a second or subsequent offence, a fine of not less than ten thousand rupees

15(2)

Storing or possessing such material for the purpose of TRANSMITTING, PROPAGATING, DISPLAYING OR DISTRIBUTING it in any manner, otherwise than for the purpose of reporting or as evidence in court

Imprisonment which may extend to three years, or fine, or both

15(3)

Storing or possessing such material for a COMMERCIAL PURPOSE

On a first conviction, not less than three years extending to five years, or fine, or both; and on a second or subsequent conviction, not less than five years extending to seven years, and fine

§ The definition, and the recommendation to change the term

The Amendment inserted a definition of child pornography in Section 2(1)(da), covering any visual depiction of sexually explicit conduct involving a child, including a photograph, video, or digital or computer-generated image indistinguishable from an actual child, and an image created, adapted or modified but appearing to depict a child.

Why it was needed. Sections 13 to 15 used the expression without defining it, which left the treatment of digitally created and altered material uncertain.

The Supreme Court has since recommended a change of terminology, observing that child pornography is a misleading expression because it suggests a category of pornography rather than a record of the abuse of a child, and recommending that the term child sexual exploitative and abuse material, abbreviated CSEAM, be adopted in its place, with Parliament invited to amend the Act accordingly.

For an answer, state the statutory definition as it stands and note the recommendation. The recommendation does not alter the present text of Section 2(1)(da).

§ What the Rules provide for

• Awareness and capacity building. The Central and State Governments are to prepare age-appropriate educational material and conduct periodic training for the police, forensic experts, medical officers and other personnel who deal with children.

• Care and protection of the child. Where the Special Juvenile Police Unit or the local police receive a report, they are to report the matter to the Child Welfare Committee within twenty-four hours, and the Committee is to assess whether the child needs care and protection and to make arrangements accordingly.

• Emergency medical care. A child who needs it is to receive emergency medical care, which is not to be made conditional on the registration of a first information report or on any other legal requirement.

• A support person. The Child Welfare Committee may provide a support person to render assistance to the child during the investigation and trial, and the child's views are to be taken into account.

• Special relief and compensation. Provision is made for immediate payment towards the child's needs for relief or rehabilitation, and the Special Court may direct interim compensation at any stage and final compensation on disposal, under Section 33(8) of the Act.

• Monitoring. The National and State Commissions for Protection of Child Rights are to monitor the implementation of the Act, consistently with Section 44.

§ The relationship between the Act, the Rules and the Schemes

Section 45 confers the power to make rules, and the Rules of 2020 supersede the POCSO Rules, 2012.

The Act creates rights and obligations; the Rules make them operable. Compensation, the support person, the medical response and the training of personnel are all worked out in the Rules rather than in the Act.

Compensation is awarded under Section 33(8) read with the Rules, and in practice the relevant State's victim compensation scheme framed under Section 357A of the Code of Criminal Procedure is applied for quantification.