POCSO (Amendment) Bill 2019 Passed In RS; Death penalty introduced, punishment term increased

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POCSO (Amendment) Bill 2019 Passed In RS; Death Penalty Introduced, Punishment Term Increased

Harshita Himatsingka | July 27, 2019 16:10 hrs

The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was passed in the Rajya Sabha on Wednesday, July 24. 

Smriti Irani, minister for women & child development, presented the bill in the Upper House, which aims to make punishment more rigid for committing sexual crimes against children. 

It should be noted that to combat the rising cases of child sexual abuse, the union cabinet had approved the amendments earlier this month and the bill will now be sent to the Lok Sabha for approval. 

Some of the changes included in the bill are amendments to sections 4, 5 and 6 to increase punishment for perpetrators from seven to 10 years, from 10 to 20 years and from 20 years to life imprisonment and death penalty. 

Section 9 of the Act is also being amended to protect children from sexual offences in times of natural calamities and cataclysms. 

Other sections where amendments have been made include section 2, 14, 15, 34, 42 and 45 from the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

In addition, the definition of “sexual assault” is being extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for penetrative sexual assault. 

Further, the amendment also seeks to penalize the transmitting of pornographic material to children and proposes to coincide it with the Information Technology Act. Child pornography initially was based on a very general definition, but now, it has been divided into distinct parts - soft-sharing, display and commercial use of child pornography. 

After the passing of the bill, G Plus spoke to Miguel Das Queah, Child Rights Expert and Executive Director of UTSAH Child Rights Org & Juvenile Justice Center, Assam. 

“Most of the new amendments are to strengthen the substantive part of the Act which deals with only crime and punishment. The only contention that we have as child rights practitioners, is that the implementation of the present Act is in itself a challenge. If you look at conviction rates, pendency of cases, status of compensation, there’s a long way to go,” said Queah.

He explained that while this amendment only talks about substantive provisions, the procedural part of the POCSO Act should be given more focus as child sexual abuse and justice cannot be seen from the perspective of crime and punishment alone.
 
“There are two aspects to the POCSO Act. One is the substantive part and the other is the procedural part. Procedural safeguards are important; things like style of police interviews, manner of recording of statements by magistrates, process of medical examination, timelines of evidence to  be recorded, timeline of the entire trial to be disposed, child-friendly court environment etc should be primary,” stated Queah.

Thus, the ways in which the child is safeguarded from the process of getting justice should also be looked into. Thereby, Queah believes that there should have been more focus on implementing the present law. 

The definition of ‘sexual assault’ is being extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for penetrative sexual assault.


Child rights activists against death penalty in Assam

While the majority of the amendment is welcome, the death penalty can create problems in practice as reporting of crimes is a big issue in Assam. 

“I believe that the idea of death penalty in this narrative would basically decrease reporting (of the crime) as no one would want to send a family member (or a known person) to the gallows. In Assam, 78% of the offenders in child sexual assault cases are known to the victims. They are either teachers (highest reported), neighbours or family members,” informed the child rights practitioner, Miguel Queah.

He further added that in cases from the present Act, POCSO 2012, he and his team, who have been providing victim assistance for almost 9 years now, have seen that when the perpetrator is someone who is known to the victim, the entire community advises against the reporting of such cases, which leads to a lot of witnesses turning hostile. 

“Death is a punishment given for a crime like homicide. If there is no difference between rape and homicide, and there can be no punishment beyond death, we fear that if there is a case of sexual assault on a child, the accused, to save self, would kill the child as the latter is a crucial witness. The safety of the child would be in question because of the death penalty narrative,” said Queah with concern.

He observed that the state and all stakeholders should focus on the implementation of the current substantive and procedural laws. Higher punishment will not solve the problem. People are not worried about higher punishment. Rather, there is a worry of non-implementation of the POCSO Act that creates a feeling of disillusionment where people think that a sexual offender can easily get away. This "hang the rapist" idea comes from continued lack of faith in justice.

“This is problematic because if implementation is done strictly, then we can see a reduction in crimes as that will act as a deterrent and not death itself,” added Queah. 
Delving deeper into the matter, he further explained that in Indian society, the honour of a woman is linked to her private parts, and that the larger patriarchal narrative is that if a girl, woman or girl child is raped, then that person is as good as dead. 

“People feel that the punishment meted out to rape should also be equal to homicide. This is a narrative that is very deeply seated in patriarchy. Rape is undoubtedly the most heinous form of crime and strict punishment should be given to the offender. But, I think that the focus should be on the rehabilitation of the victim in a way that saves them from taboo and social isolation and helps them bounce back to regular life," said the child rights expert.

Speaking apprehensively, he stated that even though the honorable minister has stated that the death penalty would be at the discretion of the court, and that the court will make a decision in the rarest of cases, Queah still hopes that this does not become an overriding narrative and a part of the public opinion, because it will not only put the security of children at risk, but will also affect reporting.

“This Act will only succeed if the procedural laws are strictly implemented. Lapse in procedures causes delay in justice for child sexual abuse victims, not the substantive part of the law. I hope there is more focus on the procedural part,” remarked Queah adding, “Even so, with the new amendments, we have to see how it rolls out and hopefully will lead to some positive results.” 

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