Protection of Children from Sexual Offences (POCSO) Act, 2012

IN NEWS:

• Ten years after the enactment of The Protection of Children from Sexual Offences (POCSO) Act, which deals specifically with child sexual abuse, an analysis of POCSO cases across India has found gaps in its implementation.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT:

• The criminal laws before the enactment of POCSO neither solely addressed crimes against children nor were they gender neutral.
• However, in 1992, India ratified the United Nations Convention on the Rights of Children (UNCRC), which prescribes a set of standards to be undertaken the parties to secure the best interests of children.
• Resultantly, by the effect of the enabling provision of the Constitution, Article 15 and Article 39, the POCSO Act came into force.
• The POCSO Act came into force on November 14, 2012, and was specifically formulated to deal with offences including child sexual abuse and child pornography.

FEATURES:

• Gender neutrality:
  • It defines a child as someone under the age of 18. But it is gender neutral, meaning that crimes of this nature committed against children will be handled by this act regardless of the gender of the child.
• Procedural guidelines:
  • The Act sets a burden of proof of “guilty until proven innocent” rather than the general rule of “innocent until proven guilty.”
  • It is mandatory for the police to register a First Information Report (FIR) in all cases of child abuse.
  • There are also provisions as well as guidelines if the case requires support from NGOs or social workers as well as experts (Eg: psychologists) in the pre-trial and trial stages for the child.
• Classification of offences:
  • It is mandatory to report sexual crimes against children. The Act lists all possible sexual offences against children including various types of sexual assault and sexual harassments, for attempted crimes as well as aiding-and-abetting these crimes or failure to report these crimes.
  • It also included punishment for persons in positions of trust of authority like public servants, staff of educational institutions, police etc.
  • POCSO is applicable not just in cases of physical sexual crimes, but also ones that happen over the internet.
• Child friendly procedures:
  • It set up procedures to make the criminal justice system child-friendly and prevent re-traumatisation. This includes everything from how the statement of the child should be recorded, to the medical examination, to designation of special child friendly courts.
  • Eg: The police official should ensure that during the investigation, the child should not come in contact with the accused. The child cannot be detained at the police station at night, and their identity should be protected from the public and media.
• Special courts and timelines:
  • The Act prescribes for special courts to be created to handle these trials, each of which should be completed within one year.
• Punishment for crimes:
  • The punishments vary based on the crime. In 2019, an amendment was made to it when minimum punishment for aggravated sexual assault on children below 16 years was increased to 20 years, extendable to life imprisonment or death.
• Compensations for victim:
  • There is provision for awarding compensation by the Special Court which includes loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse.
• Prevention of misuse:
  • In order to prevent misuse of the law, the law contains punishments for false complaints and false information with malicious intent. The recording of abuse is mandatory under this Act.

ALARMING DATA:

• The latest report released by the National Crime Records Bureau (NCRB) shows that 1,49,404 cases of crime against children were registered in 2021 of which 53,874 — 36.05 per cent — were under the POCSO Act.
• NCRB data also show an increase in the rate to 12.1 incidents per 1 lakh children in 2021 from 10.6 in 2020 and 2019.
• As per NCRB Data, in 96% of the cases filed under the POCSO Act, the accused was a person known to the child victim.
• According to the NCRB’s 2019 report, one girl child was sexually abused every 15 minutes in India.

ISSUES WITH THE ACT:

Due to the strong diffusion of information via mass media and internet, people are more aware on the issue of child safety. However, the continued increase of POCSO cases indicate issues with the Act. They include:  

• Inability to deal with historical cases:
  • Historical child sexual abuse refers to incidents that are reported late. They arise because it is difficult for the child to recognise and report the offence at the earliest point in time.
  • However, certain provisions in the CrPC prohibit judicial magistrates from taking cognisance of cases beyond a specific time period. Such a scenario renders historical reporting of child sexual offences which took place before 2012 legally implausible.
• Procedural delays:
  • The Act is silent on what documents are to be considered for determining the age of the child victim. Hence in many cases, a bone ossification test is conducted.
  • This, coupled with the slow pace of investigation by the police and delays in depositing samples with the Forensic Science Laboratories extends the whole process and creates unnecessary stress on the victim.
• Inability to provide child-friendly environment:
  • The Supreme Court had noted that in 96% of cases, a ‘support person’ was not provided to the victim.
  • Child rights committees and Child Line facilities in many states have remained ineffective, owing to lack of manpower and resource crunch.
  • Also, shelter homes are far and few and often overcrowded.
• Shortcomings in judiciary:
  • As of 2022, only 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme.
  • There is a lack of Special Public Prosecutors appointed specifically to handle POCSO cases, and even when they are appointed, they are often employed for non-POCSO cases.
• Delayed justice:
  • While hearing in every case should be done in one year, on average, it took 509.78 days for a POCSO case to be disposed of.
  • This gives the accused ample time to try and pressure the victims or their families to backtrack on their complaints. The situation is even more complicated when the accused is a family member.
• Low conviction rates:
  • Over the past 10 years, 43.44% of trials under POCSO ended in acquittals while only 14.03% end in convictions i.e., for every one conviction in a POCSO case, there are three acquittals.
• Misuse of provisions:
  • POCSO is widely misused to handle matters of inter-family and inter-community friction.
  • Eg: POCSO is frequently used in cases regarding disputed love relationships involving children between 16 and 18, especially in instances where the girl’s parents are not in favour of the matter.

WAY FORWARD:

• With growing international jurisprudence around the issue of child abuse, and in line with the UN Convention on the Rights of the Child, India must revise its legal and procedural methods to deal with historical child sexual abuse.
• There is an urgent need to reform and revise POCSO to enable clear provisions to reduce the procedural hurdles and ensure speedy yet effective delivery of justice.
• The nurturing in India does not factor in the elements of sex education or gender sensitivity. Hence, many genuine cases go unreported. Hence, India needs to create strong community-based approaches and programmes on child protection and prevention of crimes against children.
• There should be simplicity and greater accessibility of redressal mechanisms so that children and communities have ease in reporting crimes.
• There was a sharp increase in the number of pending cases between 2019 and 2020, which could be attributed to the COVID-19 pandemic. Judiciary should take note of this and resolve them at the earliest.
• There is a need to build capacity of the law enforcement authorities, judiciary and other child protection human resources within the government to ensure addressal of crimes against children in a humane and appropriate manner.  

PRACTICE QUESTION:

Q. Critically analyse the role of Protection of Children from Sexual Offences (POCSO) Act, 2012 in ensuring a safe and secure childhood for children in India?