A Decade of POCSO

The act which was enacted in 2012 has completed a decade in the country, with sceptical remarks and laudatory comments throughout its journey. Some believe that the act stood up to the mark for which it was enacted, and some believe that it missed some key important areas which were necessary for the protection. The act was enacted to protect children from sexual offences, which contained both real-world and internet areas. The current laws back then lacked this key area that was necessary for protection. No specific provisions were mentioned in any law that was related to child sexual offences. Children are those who are considered below the age of 18, no specific law is mentioned about the protection, trial, or punishment for those. India was a signatory of the UN Convention on the rights of Children in 1992, in which one of the most important rights was- Right to protection from abuse, violence or neglect. This act was also enacted to use it as a deterrence against sexual offences against children. Child sexual abuse was somewhat prosecuted under IPC, but the provisions of the IPC discriminated against the male child. No provision mentioned the protection of a male child under the age of 18. The terms modesty and unnatural offence were lacking in the provisions of IPC.

Other provisions of the law overlap the act. The act can be said to be more effective and better than IPC because it only deals with the protection of children. The act aims to provide stricter punishment as a deterrence effect against child sexual abuse. Some of the terms are more precisely described and explained in the act than in IPC. With the rising number of cases, it was essential to provide a suitable act which would cover all the provisions and would be aimed at the protection of children only. The act provides some essential features. The act ensures that the identity of the victim remains confidential, Section 23 of the act says that no information shall be disclosed anywhere which can lead to the disclosure of information about the identity of the victim. In the judgement of Nipun Saxena V Union of India[1] the Apex court had the issue of violation of section 23 of the POCSO Act, the court laid down some guidelines where it again mentioned the importance of section 23. It also made sure that the documents in which information related to the victim is present must be sealed with a cover. The court also made sure that if the victim is mentally ill or deceased, the identity shall not be revealed until a crisis arises, even then the permission of a competent authority, i.e., the court would be required to disclose the information. The act doesn’t discriminate based on the gender of the victim, it provides for gender-neutral provisions. The act also made sure that there is mandatory reporting of such abuses, any third party who has the idea about any abuse to a child shall report it to a police station, if the person fails and it is later discovered that the third person had the idea about the abuse, he/she shall be held liable. The act also has a unique theory proposed, i.e., the last seen theory- the person last seen with the victim would be assumed to be the perpetrator of the offence and he/she would be held liable. The act also provides for child-friendly investigation, it lays down guidelines for trial and investigation. It mentions that the investigation should be conducted in such a manner that the child does not feel scared, the child should be made aware of the legal rights and what is happening, the victim shall not be detained for the night in the police station, the statements of the victim must be recorded in presence of someone whom the victim trust, i.e., parent, guardian etc. These could be termed as the positive points for the POCSO Act.

The POCSO act is a double-edged sword. The act cannot be said to be legislation without any loopholes. Some loopholes act as a drawback in the implementation of the act. The problem with the judiciary is the high pendency of cases that are still pending at various levels of courts. The same problem arises with the POCSO special court having high pendency of cases due to a lack of hearings. The courts also have a high vacancy in terms of the number of judges and officials that are required to be present. The act suffered from a very low rate of conviction, every year thousands of cases get reported, but still, the conviction rate remains low. The crime against children increased by 16.2% in the year 2020-21[2]. The act provides the mandatory establishment of the special court, from time and again the courts have referred in suggestions, guidelines and judgements that some states do not have the provision of a special court which eventually leads to a delay in justice. The act does not cover all the aspects cover all aspects of sexual abuse, the act has left some grey areas on provisions of online pornography, cyberbullying or some instances where a minor assaults a minor. There has been going a heated debate in the country on the issue of consent. Chief Justice of India in his keynote speech[3] urged the parliament to again reconsider the age limit under the POCSO act. In the act, even if both minors are engaged in sexual activity with consent it would amount to an offence, as the law considers that, minors are not capable of giving their consent. One of the major flaws with the POCSO act is the use of the last seen theory, this theory assumes that the person last seen with the victim would be assumed to be the perpetrator of the offence, this theory creates a problem where it even assumes the innocent to be guilty, but the court in the judgment [4], it let the accused go free because the time between the accused last saw the victim and the time of the offence was not within the reasonable period. The provision of the Act where it is mandated that the victim must be provided with medical treatment by a medical practitioner or a female practitioner in case the victim is a female, these provisions cannot be applied to all situations, as there is still a lack of available practitioners even in developed areas. The problem of child marriage even hampers the POCSO use, child marriage according to statutes is illegal in the country, but it is still allowed through the ways of some personal laws, these personal laws infringe the use of POCSO, as the act is silent on these conditions. The act provides maximum punishment for an offence under the act of Death Penalty, this provision conflicts with many laws, and judgements views of many jurists, judges and other people. Even the report[5] by the J.S Verma committee held the view that the death penalty shall not be awarded against rape cases. The act does not have any provision or any punishment for a false complaint, many times the complaint is made under a false impression or with a guilty mind, but the act does not punish it. The act considers the accused to be guilty until proven innocent which is contrary to the general principle of innocent until proven guilty. The act provides an exemption to a child who made a false complaint which is a loophole in itself.

The act as it stands today needs to be revamped into a better model so that it can be transformed into more effective legislation. Suggestions from NGOs, and committee needs to be taken into consideration so that the views from all the sections can be heard. The reforms in the POCSO act would make it better legislation. The consent age needs to be looked into as mentioned by the CJI. The age-old legislations need to be amended to add new provisions to make it relatable to the current socio-economic conditions. The first step to reducing these abuse instances is to create awareness, and awareness needs to be created at the school level, where it is required most, extra curriculum subject need to be added related to sexual education. The courts need to give strict guidelines to all the states requiring them to keep up the database up to date. The legislation needs to ensure that states which do not have the special court or the states where the required number of officials are not present should be filled up. The legislation needs to have a conscious decision regarding the punishment and death penalty.  The state with the highest number of cases pending in the courts in Uttar Pradesh, and Delhi has the highest number of trials under POCSO. Some states take more than a year to settle the cases, whereas it has been mandated under the act that cases need to be settled and disposed of within a year, a new amendment should be proposed to update the timeline where the timeline should be updated after reviewing all the conditions necessary. The courts need to maintain a strict database of the cases recorded and disposed of. A database at the state and National levels should be maintained so that there is a timely review which can help the legislation to make laws accordingly to it. The courts need to take out some guidelines related to the identity of the victim, there have been some instances where the victim’s identity has been revealed due to negligence and it has jeopardized the trial. The greatest number of cases have been reported in rural and semi-urban areas, where there is a lack of awareness related to this, the legislation needs to ensure that the awareness reaches out to all the sections. The panchayat needs to play an important role in deciding these cases, the panchayat needs to take a step forward and play an important role in reporting cases and assisting the family of the victim as well as the victim. The courts need to provide more focus on the e-court service, the hearing and recording of the evidence can take place through hybrid mode. If any delay happens, the court needs to submit in writing the reason for the delay to the high court. The medical officials should be available at all times, for this, the government should set up some medical units in each district and the medical staff shall be available at all times. The victim who has reported the incident must be assisted by a councillor throughout the procedure of reporting and trial, to ensure that the mental health of the victim is not affected. The POCSO act throughout the decade has left some grey spaces that the legislation should aim to cover up in the future.

[1] AIR 2018 W.P. (C) No. 568 of 2012

[2] NCRB “Crime in India-2021,317” (2021)

[3] Live Law.in available at https://www.livelaw.in/top-stories/cji-dy-chandrachud-urges-parliament-to-consider-concerns-about-age-of-consent-under-pocso-act-216336 (last visited on December 25,2022)

[4] Shyamal Gosh vs State of West Bengal AIR 2012 Criminal Appeal No. 1369 of 2007

[5] Law Commission of India “Report No. 262 On “The Death Penalty”\

Author: Vighnesh Sharma

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