PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

Preamble - PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

[Act No. 25 of 2019]

[05th August, 2019]

PREAMBLE

An Act further to amend the Protection of Children from Sexual Offences Act, 2012.

Be it enacted by Parliament in the Seventieth Year of the Republic of India as follows:--

Section 1 - Short title and commencement

(1)     This Act may be called the Protection of Children from Sexual Offences (Amendment) Act, 2019.

(2)     It shall come into force on such [1]date as the Central Government may, by notification in the Official Gazette, appoint.

Section 2 - Amendment of section 2

In the Protection of Children from Sexual Offences Act, 2012 (32 of 2012) (hereinafter referred to as the principal Act), in section 2,--

(a)      in sub-section (1), after clause (d), the following clause shall be inserted, namely:--

'(da) "child pornography" means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child;';

(b)      in sub-section (2), for the words, brackets and figures "the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)", the words, brackets and figures "the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)" shall be substituted.

Section 3 - Amendment of section 4

In the principal Act, section 4 shall be renumbered as section 4(1) thereof and--

(a)      in sub-section (1) as so renumbered, for the words "seven years", the words "ten years" shall be substituted;

(b)      after sub-section (1), the following sub-sections shall be inserted, namely:--

"(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.".

Section 4 - Amendment of section 5

In section 5 of the principal Act,--

(I)      in clause (j),--

(A)     in sub-clause (i), the word "or" occurring at the end shall be omitted;

(B)     in sub-clause (iii), the word "or" occurring at the end shall be omitted;

(C)     after sub-clause (iii), the following sub-clause shall be inserted, namely:--

"(iv) causes death of the child; or";

(II)     in clause (s), for the words "communal or sectarian violence", the words "communal or sectarian violence or during any natural calamity or in similar situations" shall be substituted.

Section 5 - Substitution of new section for section 6

For section 6 of the principal Act, the following section shall be substituted, namely:--

"6. Punishment for aggravated penetrative sexual assault.

(1)     Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2)     The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.".

Section 6 - Amendment of section 9

In section 9 of the principal Act,--

(i)       in clause (s), for the words "communal or sectarian violence", the words "communal or sectarian violence or during any natural calamity or in any similar situations" shall be substituted;

(ii)      after clause (u), the following clause shall be inserted, namely:--

"(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help 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 7 - Substitution of new section for section 14

For section 14 of the principal Act, the following section shall be substituted, namely:--

"14. Punishment for using child for pornographic purposes

(1)     Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

(2)     Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1).".

Section 8 - Substitution of new section for section 15

For section 15 of the principal Act, the following section shall be substituted, namely:--

"15. Punishment for storage of pornographic material involving child

(1)     Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

(2)     Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

(3)     Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.".

Section 9 - Amendment of section 34

In section 34 of the principal Act, for the words, brackets and figures "the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)", the words, brackets and figures "the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)" shall be substituted.

Section 10 - Amendment of section 42

In section 42 of the principal Act, for the figures, letter and words "376E or section 509 of the Indian Penal Code (45 of 1860)", the figures, letters and words "376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)" shall be substituted.

Section 11 - Amendment of section 45

In section 45 of the principal Act, in sub-section (2), clause (a) shall be re-lettered as clause (ab) thereof and before clause (ab) as so re-lettered, the following clauses shall be inserted, namely:--

"(a)? the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority under sub-section (1) of section 15;

(aa) the manner of reporting about pornographic material in any form involving a child under sub-section (2) of section 15;".

Statement of Objects and Reasons - PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

STATEMENT OF OBJECTS AND REASONS

(1)     The Protection of Children from Sexual Offences Act, 2012 (the said Act) has been enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.

(2)     The said Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.

(3)     However, in the recent past incidences of child sexual abuse cases demonstrating the inhumane mind-set of the abusers, who have been barbaric in their approach towards young victims, is rising in the country. Children are becoming easy prey because of their tender age, physical vulnerabilities and inexperience of life and society. The unequal balance of power leading to the gruesome act may also detriment the mind of the child to believe that might is right and reported studies establish that children who have been victims of sexual violence in their childhood become more abusive later in their life. The report of the National Crime Records Bureau for the year 2016 indicate increase in the number of cases registered under the said Act from 44.7 per cent. in 2013 over 2012 and 178.6 per cent. in 2014 over 2013 and no decline in the number of cases thereafter.

(4)     The Supreme Court, in the matter of Machhi Singh vs. State of Punjab [1983 (3) SCC 470], held that when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The same analogy has been reiterated by the Supreme Court in the matter of Devender Pal Singh vs. State (NCT of Delhi) [AIR 2002 SC 1661] wherein it was held that when the collective conscience of the community is so shocked, the court must award death sentence.

(5)     In the above backdrop, as there is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the said Act make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child. It also empowers the Central Government to make rules for the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority.

(6)     The Protection of Children from Sexual Offences (Amendment) Bill, 2019, for the aforementioned purpose, which was introduced and pending consideration and passing in the Lok Sabha, lapsed on the dissolution of the Sixteenth Lok Sabha. Hence, the present Bill.

(7)     The Bill seeks to achieve the above objectives.