1. Introduction
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual abuse, assault, harassment, and exploitation. The Act defines various key terms, which are crucial in interpreting and applying its provisions. These definitions establish the scope of the law, specify punishable offenses, and clarify procedural requirements.
2. Definitions under the POCSO Act, 2012
The POCSO Act, 2012 provides detailed definitions of offenses, key legal terms, and procedural aspects. Some of the essential definitions under Section 2 of the Act are:
2.1. Child (Section 2(d))
- A child is defined as any person below the age of eighteen years.
- This definition is gender-neutral, ensuring that both male and female children are covered.
- The Supreme Court in Eera through Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Ors. (2017) 15 SCC 133 ruled that the biological age of the child is relevant under the Act, not mental age.
2.2. Sexual Assault (Section 7)
- Sexual Assault involves touching of private parts (vagina, penis, anus, or breast) with sexual intent.
- It also includes making the child touch any person’s private parts or doing any other act involving physical contact without penetration.
2.3. Aggravated Sexual Assault (Section 9)
- The Act defines aggravated sexual assault as an assault under special circumstances such as:
- When committed by a relative, police officer, teacher, doctor, public servant, armed forces personnel, or anyone in a position of trust.
- When committed on a child below 12 years.
- When committed multiple times on the same child.
2.4. Penetrative Sexual Assault (Section 3)
- A penetrative sexual assault occurs when a person:
- Penetrates the child’s vagina, mouth, urethra, or anus with a penis or makes the child do so.
- Inserts any object or body part (not being a penis) into these private parts.
- Manipulates any body part of the child to cause penetration.
2.5. Aggravated Penetrative Sexual Assault (Section 5)
- Aggravated Penetrative Sexual Assault occurs under circumstances similar to those mentioned under aggravated sexual assault, such as:
- Assault by people in authority (e.g., police, army personnel, teachers, religious leaders).
- Assault on a child below 12 years of age.
- Assault causing grievous injury, permanent damage, pregnancy, HIV infection, or death.
2.6. Sexual Harassment (Section 11)
- Sexual harassment includes:
- Speaking sexually explicit words or making gestures with sexual intent.
- Exposing private parts or forcing the child to expose their private parts.
- Stalking, watching, or following a child in person or through digital means.
- Showing pornography or making a child exhibit their body in an obscene manner.
2.7. Use of Child for Pornographic Purposes (Section 13)
- This section criminalizes using a child in any form of media (photo, video, digital content, or advertisements) for sexual gratification.
- Includes representation of:
- Sexual organs of a child.
- Child engaging in real or simulated sexual acts.
- Indecent or obscene representation of a child.
2.8. Child Pornography (Section 2(da))
- Child pornography refers to any visual depiction of sexually explicit conduct involving a child.
- This includes:
- Photographs
- Videos
- Digital or computer-generated images
- Modified images that appear to depict a child
2.9. Abetment of Offense (Section 16)
- A person abets an offense under POCSO if they:
- Instigate another person to commit the offense.
- Conspire with another person to commit the offense.
- Aid or facilitate the offense in any way.
2.10. Attempt to Commit an Offense (Section 18)
- Attempting to commit any offense under POCSO is also punishable.
- The punishment is up to half of the maximum term prescribed for the full offense.
2.11. Presumption of Offense (Section 29 & 30)
- Section 29: If a person is accused under Sections 3, 5, 7, or 9, the court presumes that the offense has been committed, shifting the burden of proof onto the accused.
- Section 30: The accused is presumed to have a culpable mental state, meaning that they must prove they did not have sexual intent.
2.12. Special Court (Section 2(l))
- A Special Court is designated under Section 28 of the Act to handle cases under POCSO.
- These courts ensure speedy trials and child-friendly procedures.
2.13. Shared Household (Section 2(k))
- A shared household refers to a household where:
- The accused lives or has lived with the child.
- This is relevant in cases where the perpetrator is a step-parent, guardian, or live-in partner of the child’s parent.
2.14. Domestic Relationship (Section 2(e))
- This term is borrowed from the Protection of Women from Domestic Violence Act, 2005.
- It includes relationships where the accused has lived with the child in the same household.
3. Importance of Definitions in Legal Interpretation
- Clearly defining offenses ensures that all forms of sexual exploitation are criminalized.
- Gender neutrality ensures protection for both boys and girls.
- Presumptions of guilt under Sections 29 and 30 help in securing convictions in child sexual abuse cases.
- Abetment and attempt provisions ensure that even preparatory acts are penalized.
4. Case Laws Interpreting Definitions
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Eera through Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Ors., (2017) 15 SCC 133
- Held that the term “child” refers to biological age and not mental age under POCSO.
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Jarnail Singh v. State of Haryana, (2013) 7 SCC 263
- Laid down the principles for age determination of the victim.
-
Independent Thought v. Union of India, (2017) 10 SCC 800
- Declared marital rape of a minor wife as rape under POCSO, striking down Exception 2 to Section 375 IPC.
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Bijoy @ Guddu Das v. The State of West Bengal, CRA 663 of 2016
- Emphasized confidentiality of the child’s identity during investigation and trial.
5. Conclusion
The definitions under the POCSO Act, 2012 play a critical role in ensuring effective implementation of child protection laws in India. The Act offers a comprehensive framework for preventing child sexual abuse, providing justice to victims, and ensuring child-friendly legal procedures.
