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The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a comprehensive legislation that was passed in 2012 to provide for the protection of children from a wide range of sexual offences, including sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the legal process.
The Ministry of Women and Child Development introduced an amendment to the POCSO Act before the Lok Sabha in January 2019 with an intent to make the POCSO Act more stringent and effective in dealing with the increasing cases of child sexual abuse in the country. The idea was to create a deterring effect for the perpetrators and to ensure safety, security and a dignified childhood for the children. For this, the amendment primarily suggested enhancement of punishments for the various barbaric offences, including the punishment of death penalty in extreme cases. This received the President’s assent on 5 August 2019 and came to be called the Protection of Children from Sexual Offences (Amendment) Act, 2019 (Amendment Act), enforced with effect from 16 August 2019. This article summarizes the key changes included in the Amendment Act.
The table below summarizes the changes in the provisions on punishment for certain offences:
Punishment (Pre-Amendment)
Punishment (Post-Amendment)
Penetrative Sexual Assault
Minimum 7 years of imprisonment, this may extend to life imprisonment. And a fine.
Minimum 10 years of imprisonment, this may extend to life imprisonment. And a fine.
If committed on a child below 16 years of age, 20 years of imprisonment. This may extend to life imprisonment. And a fine.
The Amendment Act clarified that the fine imposed shall be just and reasonable and paid to the victim to meet the medical and rehabilitation expenses of the victim.
Aggravated Penetrative Sexual Assault
Minimum 10 years of rigorous imprisonment, this may extend to life imprisonment. And a fine.
Minimum 20 years of imprisonment and a fine, this may extend to death penalty.
The Amendment Act clarified that the fine imposed shall be just and reasonable and paid to the victim to meet the medical and rehabilitation expenses of the victim.
Use of Child for Pornographic Purposes
Maximum 5 years of imprisonment and a fine. In case of second conviction, maximum 7 years and a fine.
If the person using the child for pornographic purposes also commits an offence of:
- Penetrative sexual assault: Minimum 10 years of imprisonment, may extend to life imprisonment. And a fine.
- Aggravated penetrative sexual assault: Rigorous life imprisonment and a fine. – Sexual assault: Minimum 6 years of imprisonment, may extend to 8 years. And a fine.
- Aggravated sexual assault: Minimum 8 years of imprisonment, may extend to 10 years. And a fine.
Minimum 5 years of imprisonment and a fine. In case of second conviction, minimum 7 years and a fine.
Further, if while using a child for pornographic purposes, the offence of penetrative sexual assault or aggravated penetrative sexual assault or sexual assault or aggravated sexual assault is also committed, then such person would be punished for the said offences, in addition to the punishment (set out above) for use of child for pornographic purposes.
Storage of Pornographic Material Involving a Child
For commercial purposes, maximum 3 years of imprisonment and/or a fine.
- For commercial purposes, between 3 to 5 years of imprisonment and/or a fine. In case of subsequent conviction, between 5 to 7 years imprisonment and/or a fine.
- For failing to delete/destroy/report pornographic material involving a child, with an intention to share or transmit the same, a fine of at least INR 5,000. In case of subsequent offence, at least INR 10,000.
- For transmitting, propagating, or administering such material except for the purpose of reporting it or for use as evidence in court, imprisonment up to 3 years, and/or a fine.
The penalties for other offences set out under the POCSO Act continued to the remain the same. Apart from the enhanced penalty provisions, the following changes were also brought into effect:
- The Amendment Act added a definition of “child pornography” to the POCSO Act, to mean any visual depiction of sexually explicit conduct involving a child which includes photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but that appear to depict a child.
- Section 5 of the POCSO Act defines “aggravated penetrative sexual assault”. A person can be charged with this offence if, among others, the offence of penetrative sexual assault is committed by a person in a position of trust or authority, including a police officer, member of the armed forces, public servant, relative of the child. It also includes cases where penetrative sexual assault leads to the child becoming pregnant or if the assault injures the sexual organs of the child, among others.
The Amendment Act added two more grounds to this definition – (i) penetrative sexual assault causing death of the child, and (ii) penetrative sexual assault committed during a natural calamity or in similar situations.
- Similarly, Section 9 of the POCSO Act defines “aggravated sexual assault”, where offence of sexual assault is triggered due to similar aggravating circumstances as Section 5 of the POCSO Act.
The Amendment Act added two more grounds to this definition – (i) sexual assault committed during a natural calamity or in similar situations; and (ii) persuading, inducing, enticing or coercing a child to get administered or administering or directing anyone to administer, helping in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity.
- Section 15 of the POCSO Act on “storage of pornographic material involving child” earlier penalised only storage of pornographic material for commercial purposes.
The Amendment Act expanded the scope of this provision to also include the following offences for storage of pornographic material involving children: (i) failing to destroy, or delete, or report pornographic material involving a child, with an intention to share or transmit the same, and (ii) transmitting, propagating, or administering such material except for the purpose of reporting it or for use as evidence in court. Subsequently, changes were also made to Section 42 on “alternative punishment” and Section 45 on “power to make rules” to incorporate the additional offences added in Section 15.
- Finally, all references in POCSO Act to “Juvenile Justice (Care and Protection of Children) Act, 2000” were changed to “Juvenile Justice (Care and Protection of Children) Act, 2015” by way of the Amendment Act.