POCSO Training | ChildSafety at Work

Section 42A of the POCSO states that in case of conflict between the provisions of the POCSO Act and any other law, the POCSO Act will have an overriding effect.

Under the POCSO Act, any person under the age of 18 years is a child.

No. Child has been defined as a person under the age of 18 years across the applicable statutes in India. That said, there has been significant debate around the age of juvenile delinquents after the landmark case of State v. Ram Singh and Ors. (more popularly known as the Nirbhaya Delhi rape case), where one of the accused was just short of 18 years and had to be therefore tried as a juvenile. 

In light of this, when the Juvenile Justice (Care and Protection of Children) Act, 2015 (Juvenile Justice Act) was introduced and passed in Parliament in 2015 replacing the Juvenile Justice (Care and Protection of Children Act) 2000, one of the main changes was to allow the trial of juveniles in conflict with law in the age group of 16-18 years as adults. As a result, under the Juvenile Justice Act, in case of heinous offences committed by a child who is above the age of 16 years, the Juvenile Justice Board (as appointed under the Juvenile Justice Act) first makes a determination regarding the mental and physical capacity of the child to commit such offence, ability to understand the consequences of the offence and the circumstances in which the child allegedly committed the offence. Basis this assessment, the Board comes to a conclusion on whether the juvenile should be tried as a child or an adult.

Under the POCSO Act and the POCSO Rules, the phrase ‘child in need of care and protection’ has been used a few times. While the Juvenile Justice Act also defines a ‘child in need of care and protection’, in the context of the POCSO Act, it is only under the following circumstances that a child survivor can be considered as a ‘child in need of care and protection’:  

• The child is living in the same house or shared household with the person who allegedly committed or attempted to commit or is likely to commit a sexual offence against the child. 
• The child is living in a child care institution without any parental support. 
• The child is without a home and parental support.

If a sexual offence is committed by a child, the case can only be tried by the Juvenile Justice Board as per procedures laid down under the Juvenile Justice Act.

Yes. Unlike the definitions of sexual harassment provided under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the distinct feature of this offence under the POCSO Act is that presence of sexual intent, when any act of sexual harassment is committed, is mandatory.

It means using a child in any form of media (including programs or advertisements telecast by television channels or on the internet or any other electronic form or printed form, whether or not such program or advertisement is intended for personal use or distribution) for the purpose of sexual gratification, including,  

• representation of the sexual organs of a child.
• usage of a child engaged in real or simulated sexual acts (with or without penetration).
• the indecent or obscene representation of a child.

“Use a child” includes involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.