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

MAY 28

Mains   > Social justice   >   Human Resources   >   Women and Child issues

IN NEWS:

  • Recently, the Supreme Court had to injunct a controversial interpretation of the provisions of POCSO Act given by the Bombay High Court.

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 law lays down the procedures for reporting sexual crimes against children.
    • The Act sets a burden of proof of “guilty until proven innocent” rather than the general rule of “innocent until proven guilty.” Also, 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.
  • 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 shouldn’t 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.
    • Also, POCSO is not just applicable in cases of physical sexual crimes, but also ones that happen over the internet.
  • 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:

  • Over the years, there has been a consistent rise in POCSO cases in the country. According to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ report 2019, one girl child is sexually abused every 15 minutes in India.
  • Out of the 1,48,185 crimes against children reported in 2019, 31.2 per cent are registered under the POCSO Act.
  • The report also suggests that in 80-90 per cent of the cases, the offender is known to the victim.

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:  

  • Social conditioning:
    • The nurturing in India does not factor in the elements of sex education or gender sensitivity. Hence, many genuine cases go unreported.
  • 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 hurdles:
    • Acting on letter rather than spirit of the Act has created an issue of red-tapism.  
    • Eg: 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 extends the whole process and creates unnecessary stress on the victim.
  • Infrastructural deficit:
    • While the act prescribes a child-friendly environment, it has been unable to provide support and care for all victims during the trial.
    • Eg: 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 the ones that exist are overcrowded.
  • Judicial inefficiencies:
    • While hearing in every case should be done in one year, it was taking two to three years. The conviction rate for child rape cases has been low, at 28.2 per cent and the pendency of cases is at 89.6 per cent.
    • 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.
  • 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 our laws to account for various developments such as historical reporting of child sexual abuse. Also, there needs to be clear provision in the POCSO Act to reduce the procedural hurdles and ensure speedy yet effective delivery of justice.

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?