The Protection of Children Sexual Offences Act (POCSO) was enacted in 2012 with the objective that children below the age of 18 needed to be protected from sexual offences and with the Act it also led to some positive reforms for dispensing speedy justice for such child related matters.
This Act provides for establishment of special courts for trial of sexual abuse matters. Even though the Act was enacted, there were many hindrances in form of malpractices and outdated legal proceedings. There was a lack of infrastructure to implement the requirements of this Act for example, only two district court complexes of Delhi have vulnerable witness room where the child can be called for sharing his evidences and there are hundreds of pending cases in each district court with respect to sexual offences. These fall outs often fail to render the justice to the victim within a specified time.
Before POCSO came into existence there was no such specific legislation that was solely delegated for the offences committed against children and the offences were reported under IPC, 1860. But there were many offences where even the IPC was silent and had no relevant provision for the same due to which the offenders were getting an easy hand and no punishment was prescribed for them. As the laws were outdated, new legal regime for children was necessary which led to the enactment of the POCSO Act as well as an addition was made to Article 15 clause (3) that the State was entitled to make any special provision for children.
As per the survey conducted by the Ministry of Women and Child Development in 2007 it was noted that there were around 53% of children in India who were victim of sexual abuse and thus looking into this grave condition of children, POCSO was passed by both the houses of Parliament on 22nd May 2012 which finally came into working on 14th November 2012.
Features Of Act –
Some of the notable features of this Act are-
- The Act is gender neutral, as the laws in IPC were favouring only the females and there was no distinguish between an adult or child, hence it was necessary to keep this Act gender neutral as many young boys were also prey of sexual abuse.
- Burden of proof is on the accused and this Act works on the principle “guilty until proved innocent” rather than the universal law of “innocent until proven guilty” and in order the abuse of law, there are also provisions made for registration of false complaints or false information with a malicious intention.
- The recording of sexual abuse is made mandatory by this Act; thus, the police needs register a FIR in case of all kinds of child abuse. Even statement of child can be recorded from the residence of child or any place as his choice and it is preferred that the statement should be recorded by female police officer or officer not below the rank of sub-inspector.
- The Act has listed and defined all the known kinds of sexual offences against a minor and even listed its punishments such as the act punishes penetrative sexual assault, non-penetrative sexual assault, aggravated penetrative sexual assault, aggravated non-penetrative sexual assault, use of minor for pornographic content, sexual harassment, abetment of such sexual offence and even failure to report the offence. If under certain case, there is an apprehension that the offence might be committed then also the complaint can be registered and if there is failure to report of such complaint will attract the punishment of 6 months imprisonment or fine or both.
- Provides special protection to the minors during the judicial process in 2 different cases-
- For speedy trial, the child’s evidence needs to be recorded within a period of 30 days
- There are special courts set up to hear such matters and conduct trials which has to be completed within a year. The Court need to ensure certain requisites such as-
- The minor should not be exposed in any way to the accused person while the minor is recording for his/her evidence and the identity of the minor shouldn’t be disclosed at any time during the trial period or investigation.
- The minor is not made to repeat his/her statement or testimony in court and the testimony of the child can be given via video link also.
- All the questions of the defence are routed through the judge and the defence cannot ask the questions in aggressive manner.
- A special educator, interpreter or translator or any other expert should be present in Court for assistance of the minor.
- For awarding compensation, there is a set criterion by the Special Court which includes, loss of employment opportunities and educational facilities along with the disability, disease or pregnancy that is caused as a consequence of the abuse.
- The Act has raised the age for having consensual sex from 16 years to 18 years as stated in the Indian Penal Code, 1860. This means that-
- Any person (even a minor) can be prosecuted if he engages in sexual act with a child of below the age of 18 years regardless whether the latter person consented for it or not.
- Even a husband/ wife can be accused of engaging in sexual act with his/her spouse who is under the age of 18 years
- The POCSO act hence doesn’t identify consensual sex among the children or between an adult and a child.
Critical Analysis of POCSO Act, 2012
The POCSO Act has got mixed views regarding its implication and implementation and the Act has been criticized mainly on the basis of three main heads which are as follows-
1. Legislative process is made easier
As discussed above, there are many relaxations given to the child for recording his evidences and giving his/her statement during the trial and investigation procedure. The Act has also led to establishment of special court for such child abuse matters to provide security to the child in the best possible way. Even though, as per its provisions it may look like the perfect legislation in favour of children.
But there are some glitches in these provisions too, such as the age of the consensual sex doesn’t recognize consensual sex between an adult and a child or even among the children. So, if a 19 year old has sex with a 17 year old then, one will be booked under the POCSO act for committing sexual offence or abuse whereas it was consensual, this may also ruin the life of the child if he/she is sent as Child in conflict of law (CCL) under the JJ Act, 2015. There should be better provisions for matters with regard to consensual sex.
Another problem that is faced by the victims is that there is no such specific provision stating the documents that need to be submitted to prove the age of the victim or the child. So, the rule 12 of the Juvenile Justice Rules is being applied by the Court to determine the age of these child victims too. Some of the document which are recognised are the birth certificate, matriculation certificate, school certificate of the child and sometimes the child might have to undergo a bone ossification test also, which will give a rough figure of the victim. Thus, the Act needs to specify a provision with respect to documents needed to prove the age of the victim.
2. Slow delivery of Justice by the judiciary
One of the perks of the Act is that it focuses on providing speedy justice to the victim within a span of 1 year and the statement/ testimony of the child should also be taken within 30 days. However, it has to be noted that these provisions are often broken or disobeyed with rather than being complied to as the courts are overburdened with the cases and it is very difficult to address all the cases within the given limitation period.
Another reason for delay in delivery of justice is that the advocates often ask for adjournments due to many external reasons, and when the victim is called to the court repeatedly after 6 to 7 months of the case being reported, the victim tends to forget the details of the incidents precisely. Even the provision of interim compensation is interpreted in a narrow way, as the people should understand that interim compensation for the victim is not just for her medical needs but also includes the other needs of the child victim of rehabilitation.
Other thing which needs to be focused on, is that the relation between the victim and the public prosecutor should be well defined as well as well established, so that the victim is comfortable answering the questions or discussing the scenario with the lawyer for further investigation or trials and not shies around from sharing the details of the incident. As per section 33 (2) of the POCSO Act, the defence is allowed to ask the questions only through the judge and not in an aggressive manner.
3. Administrative downsides
POCSO Act has witnessed many administrative issues when it comes to implementing the Act, and even after putting in a lot of efforts the police still faces time issues as it all starts with the registration of FIR as the police must ensure that the FIR is registered within time, then they are responsible for conducting the Medico-Legal Case (MLC). And it is a shame that MLC is often not conducted as the family of victim is often misinformed about the test and its effects on the victim’s health.
Doctors should be made more responsible while conducting MLC of the victim child as the atmosphere given in the hospitals to the child is often very harsh and hence it is important that the doctors learn to communicate well with the victims while conducting the test to avoid any further trauma to the victim. Even the police should get better at collecting the forensic evidences to carry on the investigation smoothly.
One of the other pitfalls of administration can be noted under Section 43 and 44 and Rule 6 of the POCSO Act wherein it talks about the institution of National and State Commission for protection of child rights are required to monitor, supervise and evaluate the implementation of the Act at regular intervals for creating awareness among the people regarding the offences as well the remedies available under this Act. The downside of this section is that even though these institutions are set up, their functioning and operations are not open to people which in turn affects their accountability and fails the purpose of establishing the institutions.
Thus, these were the three main critical points which need to be addressed in the POCSO Act to make it work efficiently and more effectively. This will help save a lot of children from various kinds of sexual abuse.
Important Judgments –
There are some of the important judgments which show that how some of the judgments were taken completely against the spirit of the POCSO Act, 2012. They are as follows-
- In case of State v. Aas Mohammad, SC No. 78/2013 it was noted that a 14 year old girl was in a sexual relationship with her landlord and the complaint was filed by the mother of the girl after she realised that her daughter was 6 months pregnant. When the girl was asked in the Court, she accepted that the complaint was filed as the man had refused to marry her but later on the accused offered to marry her and even give her Rs 30,000/- as compensation and provide shelter to her mother. The girl and the landlord got married when the he was out on bail and the landlord was acquitted as the judge observed that he complied with his undertakings. Hence, in this case we can observe that the Court is legalising child marriage rather than punishing the accused for committing sexual offence which is completely against the spirit of POCSO.
- In the case of State v. Ishkar Ahmed, the Chandigarh Special Court passed the order that having an affair with the prosecution and having conversation with the victim will not render a license to the accused to commit rape with her or even have any sexual intercourse even with her consent as consent of the child is immaterial if she is below the age of 18 years. But in these kinds of cases, the doctrine of mens rea needs to be taken into account for better judgment on part of the accused as well as the victim.
There is another tricky issue which came into existence that was barely discussed for the matter that the couples who are below the age of 18 years should be treated as juvenile in conflict with law or not. Even the National Commission for Protection of Child rights (NCPCR) had pressed on the issue of consensual intercourse among the children and how the law needs to recognize consensual sexual exploration among the young adolescents and decriminalize it too for certain teenage groups.
Thus, as per the POCSO Act, 2012 it can be inferred that this Act can bring drastic decrease in the number of child sexual offences, only if it exercised properly and duly by the administrative and judicial machinery. Even some new provisions need to be added to the existing Act with regard to documents required for proving the age of the victim.
Apart from that, the knowledge regarding the offences and rights should be made available to the people of rural areas also, especially regarding the POCSO Act and everyone should be sensitised about this matter starting from the police, victim, victim’s family, lawyers, doctors and all those who might be involved in it. The Act is definitely fundamental in nature and aims at bringing positive changes in the lives of our children by making them aware of such sexual offences and how it is necessary to report them before the Court and police to deter it for benefit of the public at large.
This Article is authored by Rhea Banerjee, Pursuing B.A.LL.B from Indore Institute of Law.