“Abuse manipulates and twists a child’s natural sense of trust and love”
Introduction
The Protection of Children from Sexual Offences Act, 2012 was enacted on 16 July 2012 and enforced on 14th November 2022, on the occasion of Children’s Day. It was enacted as a consequence of India’s ratification of the UN Convention on the Rights of the Child in 1992.
It is an Act to protect children from offences of sexual assault, sexual harassment, and pornography and provides for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto.[1]
The act comprehensively covers all the aspects regarding sexual offenses against children, and by children, in this legislation, it means anyone who is under 18 years of age. The much-needed act – of POCSO is a result of a lot of effort but still, there’s a lot to be done in this regard which we will discuss in detail in this article.
Features of the POCSO Act
Following are some of the salient features of the Protection of Children from Sexual Offences Act, 2012 :
1. Territorial Jurisdiction : The act when enacted in the year 2012 was applicable to all the states and Union Territories of India except the state of Jammu and Kashmir ( which constituted of the regions of Jammu, Kashmir and Ladakh) which had special status by the virtue of Article 370 of the Indian Constitution.[2] After the abrogation of Article 370 on 5thAugust, 2019 the special status of Jammu and Kashmir was stripped off, and since then the legislation is applicable in Jammu and Kashmir as well as in Ladakh.
2. Gender-Neutral Law : Protection Of Children from Sexual Offences Act sets a neutral tone with regards to gender of the victim. Unlike other previous provisions this legislation doesn’t ignore the male child victims. Under this law “any person” under the age of 18 years in considered as a child.
3. ‘Guilty’ until proven innocent : Contrary to the general principle of “Innocent until proven guilty”, The accused under this act are considered as Guilty until they are proven. Also, the burden to prove themselves as innocent lies on the accused. This makes the act very harsh.
4. First Information Report : In accordance with sections 154 and 156 of the Criminal Procedure Code, a First Information Report (FIR) is filed to start the investigation in any criminal matter. Similar to this, the POCSO Act specifically states in section 19 that any person, including a child, who has reason to believe that an offence may be committed under the Act or has already committed an offence under the Act must immediately notify the Special Juvenile Police Unit or the local police of the affected area. The Police Unit is required to document the information in writing.
After gathering the relevant data, if the Special Juvenile Police Unit or the local police have reason to believe that the kid who committed the crime needs emergency care and protection, plans must be made for such things right away. If necessary, the youngster must be admitted to the closest shelter, home, or medical facility. The Police Unit is also required to notify the closest Special Court and the Child Welfare Committee within twenty-four hours.
5. Procedure for recording statement : Under this act, the procedure for recording the statement is very child-friendly, as it should be. The statement of the child victim is recorded at their home, by a women police officer, who shall not be under the rank of sub-inspector. Also, the women police officer who is recording the statement, or any other police officer present there must not be wearing police uniform while recording the statement of the child. In addition to this, the child’s parents or anyone whom the child trust should also be present while the recording of the statement of child is being done. The police also must ensure that the child does not comes in contact with the accused. Apart from this, the child’s identity and the information received from them is mandated to be kept confidential under this law.
6. Special POCSO Courts : The Protection of Children from Sexual Offences Act, 2012 makes in mandatory to establish special courts to deal with the cases under this act. The Special Court is in charge of making the courtroom kid-friendly during the trial. The youngster must be permitted to remain during the trial with a member of their family, their guardian, a friend, or a relative they have confidence in. The youngster may be given frequent breaks, according to the court. The youngster should not be asked to testify in court frequently; alternatively, he or she may testify through video link rather than physically appearing there. There should be no aggressive questioning or character assassination of the child. The Court is required to make sure that the child’s dignity is upheld at all times during the trial. Also, the courts should resolve the cases within 1 year from the date when the cognizance of the offence happened.
What was the need for POCSO Act?
India has one of the largest populations of children in the world with close to 473 million children under the age of 18. Also, According to a broad interpretation of Article 21 of the Indian Constitution, protection of children by the state is guaranteed. To expedite the trials as well it was required that a special legislation was passed to deal with the cases related to sexual offenses against children.
Before this legislation was passed by the parliament in the year 2012 there was no other law to deal especially with the cases related to sexual offenses against Children. Provisions of the Indian Penal Code, 1860 were referred to deal with sexual offenses against children as well. The provisions present in the Indian Penal Code were inefficient in dealing with cases where a child was a victim of a sexual offense. There was a need to introduce stricter and harsher penal provisions to create deterration and fear in the minds of the offenders.
Ever since a child sexual abuse racket was busted in Goa when Freddy Peats, a resident of Goa who was arrested in April 1990 by the local police for allegedly sexually abusing 150 boys of ages six to 12 in his “orphanage” on Colva beach[3], the need for a special provision punishing these types of criminals was felt even more. It is a very saddening fact that it took approx. 22 years for the parliament to bring in special legislation for the prevention of sexual offences against children.
The Ministry of Women and Child Development undertook a National Study on Child Abuse in India in 2005, which led to the passing of the POCSO Act. Save the Children and UNICEF both supported the Ministry’s programme. Study on Child Abuse: India 2007 was the title given to the study’s report when it was published. The study included 4,773 other responders in addition to a sample of 12,447 kids from a range of age groups and 13 states.
The study’s findings made it clear that young children between the ages of 5 and 12 are the most susceptible to abuse and exploitation when it comes to all forms of violence. The study found that every second child has experienced emotional abuse, and that 53.22 percent of children had experienced sexual assault in addition to two out of every three children having experienced physical abuse. 54.68 percent of the boys who were physically assaulted out of the 69 percent of children in the 13 states were boys, while 21.90 percent of children reported having suffered serious sexual abuse and 50.76 percent various sorts of sexual abuse.[4] The worrisome research findings necessitated quick action to protect the nation’s youngsters because of the current circumstances.
A version of the Protection of Children from Sexual Offenses Bill, 2010, prepared by the Ministry of Women and Child Development in September 2010, was revised multiple times before becoming the POCSO Act on Children’s Day, November 14, 2012.
Key findings on crimes against children
According to the data, only 14.03% of POCSO trials result in convictions, compared to 43.44% that do not. There are three acquittals in POCSO cases for every conviction. Only 6% of the 138 judgments examined in depth by the study had the accused being a stranger to the victim. While the link between the victim and the accused was unknown in 44% of the cases, the accused were known to the victims in 22.9% of them, family members in 3.7% of the cases, and there were previous romantic relationships in 18% of the cases. The study indicated that in these 138 incidents, 5.47% of the victims were under the age of 10, 17.8% were between the ages of 10 and 15, and 28% were between the ages of 15 and 18. In 48% of cases, the victim’s age was not known. [5]
According to data released by the National Crime Record Bureau in 2021, the accused was a person known to the child victim in 96% of cases filed under the POCSO Act, 2012; in 48.66% of cases, the accused is either a friend or a love partner of the victim.
One major reason for the high number of acquittals is that the “support persons”, who should be provided to the victims by the concerned authorities are not being provided. The apex court of India has noted that only 4% of the cases, a support person was allotted to the victim.
Eligibility to become “support persons”
An individual or organization that works in the area of children’s rights or child protection, a representative of a children’s home or shelter that has custody of the kid, or a DCPU employee who stands by the victim throughout the legal procedure can be the “support persons”
Delay in Justice Under POCSO
The POCSO Act was passed by the parliament in 2012 with the intention to improve the quality of justice delivery when it comes to offenses of a sexual nature against children. The first and foremost task that was required was to fast-track the cases and avoid long-drawn litigation in the courts. Because other courts in India already had massive backlogs, the Protection of Children from Sexual Offenses Act, 2012, included a provision for special courts to quickly resolve cases involving sexual offenses against children. According to the Act, a case filed under the Act should be disposed of within a year, or 365 days, but a study found that it takes 509.78 days for a POCSO case to be disposed of. [6]
As it takes a lot of time to dispose of a case under POCSO as well, the pendency of the cases in the courts gradually rose, and the situation became worse in 2020 when the whole world was hit by a pandemic. The huge impact of the pandemic on justice delivery with regards to POCSO cases is being felt by virtue of the high number of cases pending in the Indian Courts.
Is POCSO Act being misused?
The Protection of Children from Sexual Offences Act, 2012, was enacted with the intent to protect the children from sexual offences, but lately from various cases and instances it has been observed that the Act is being misused to punish young adults ( under 18 years of age ), who are in a romantic relationship.
According to a study by Enfold Proactive Health Trust and UNICEF-India, one in every four cases, that makes it 25% of the cases under the Protection of Children from Sexual Offenses (POCSO) Act in West Bengal, Assam, and Maharashtra were “romantic cases,” where the victim was discovered to be in a consensual relationship with the accused.[7] Notably, the survey also discovered that the girl was between the ages of 16 and 18 in over half of the “romantic cases” (46.6%). These conclusions support Chief Justice of India D Y Chandrachud’s appeal to legislators to address the “increasing concern” about criminalising minors who participate in consensual sexual behaviour. Researchers Swagata Raha and Shruti Ramakrishnan’s study, which examined all 7,064 POCSO judgements rendered between 2016 and 2020 in the states of Assam, Maharashtra, and West Bengal, found that in 1,715 cases, court records indicated that the complainant and the accused had a consensual relationship. The report published also discovered that during the investigation stage, evidence stage, or both, the girl admitted to having a “romantic relationship” with the accused in 1,508 cases (87.9% of the “romantic cases”).
“The might of the criminal justice system was instead invoked more often to control and deter girls from being in relationships against the wishes of their family, and to coerce the girls to return home if they had eloped. In a few cases, it also served as a device to compel the accused to honour his promise of marriage,” the report stated
Recent Judgements where it was noted that the Act is being misused
1. A single judge bench of the Karnataka High Court in September 2022, said The Protection of Children against Sexual Offences (POCSO) Act, 2012 is not intended to penalise young people who fall in love. When ordering the dismissal of a case brought under the POCSO Act against a 16-year-old male who eloped with a 16-year-old girl, the HC made the observation. “The laudable object for which the POCSO Act was brought into effect cannot be forgotten, but that would not mean that it is meant to punish young children who would fall in love and commit such acts which would become punishable under the Act,” a single judge of the HC ruled.[8]
2. In a recent case Delhi High Court has upheld that the intention behind POCSO is to protect children from sexual exploitation but it was never meant to criminalise consensual romantic relationships between young adults. “In my opinion, the intention of POCSO was to protect children below the age of 18 years from sexual exploitation. It was never meant to criminalise consensual romantic relationships between young adults,” said Justice Jasmeet Singh in the order. “However, this has to be seen from the facts and circumstances of each case. There might be cases where the survivor of sexual offence, may under pressure or trauma be forced to settle,” the judge added. The court observed that a “consensual relationship borne out of love should be of consideration while granting bail, and in the present case, it would be a travesty of justice to let the accused suffer in prison.”[9]
Conclusion
Even after more than 10 years since The Protection of Children from Sexual Offences Act, 2012, the proper implementation of the act has not taken place. The first and most important task of this legislation was to expedite the resolution of cases involving sexual offenses against children; it was mandated that a case be resolved within a year of the offense’s cognizance, but in most Indian states, the time taken to resolve the cases is more than double of what is mandated under the act. There’s no doubt that there has been considerable improvement, but we as a society should strive for better. The pendency of cases is a problem that arises due to the huge population of India, so it should be ensured that more special courts are set up, more judges are appointed, and more “support persons” are engaged so that the cases are resolved quickly. Also, the courts of India and the government should take relevant measures to avoid misuse of the law, as it has been noted that many innocent people are being charged under this act even when there was a consensual relationship between the couple. If an innocent is made to spend even a day in jail, it is a failure not only for the authorities, but for the society at large.
[1] Protection of Children from Sexual Offences Act, 2012, Long Title, https://www.indiacode.nic.in/
[2] Article 370 of the Constitution of India 1950,
https://www.constitutionofindia.net/constitution_of_india/temporary__transitional_and_special_provisions_/articles/Article%20370 ( last visited on 23rd January 2023)
[3] Goa emerges as hunting ground for tourists seeking boy prostitutes, ISSUE DATE: Mar 31, 1996, India Today | https://www.indiatoday.in
[4] Ministry of Women and Child Development, Study on Child Abuse India 2007 | https://resourcecentre.savethechildren.net/document/study-child-abuse-india-2007/
[5] 10 years of POCSO: An analysis of India’s landmark child abuse law by Esha Roy, Published on November 18, 2022 in The Indian Express
[6] 10 years of POCSO: An analysis of India’s landmark child abuse law by Esha Roy, Published on November 18, 2022 in The Indian Express
[7] ‘25% of POCSO cases are romantic relations’: Study by Apurva Vishwanath, Published on December 12, 2022 in the The Indian Express
[8] Karnataka HC: Intent of POCSO Act not to punish teens in love, published on September 11, 2022 in The Indian Express
[9] POCSO Not Meant To Criminalise Consensual Romantic Relationships Between Young Adults: Delhi HC, published on November 14, 2022 in Outlook India
Author: Arnav Roy
Juris Centre 