Protection of Children against Sexual Offences Act, 2012

INTRODUCTION

To deal with offences of sexual exploitation and sexual abuse of children and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto, POCSOthe  Act was enacted by parliament in the year 2012. This act was passed in response to India’s ratification of the UN Convention on the Rights of the Child in 1992. Punishment has been given according to the gravity of the offence.

The Act was amended in 2019 to include more strict punishment like the death penalty for committing sexual crimes against children, with a view to preventing these crimes against children.

 POCSO Rules, 2020 also got notified recently.

NEED FOR THIS ACT

Earlier following sections of the Indian Penal Code, 1860 dealt with sexual abuse of children:

Section 375– Rape

Section 354– Outraging woman’s  modesty

Section 377– Unnatural offences

Despite this, these provisions are not sufficient to prevent these offences as there are some loopholes that have been used by the accused to get saved from severe punishment as follows:

• Section 375 is not gender neutral and male victims were excluded.
• Section 354 does not provide strict law for the modesty of a child.
• Section 377, does not define “ Unnatural offences”.

OBJECTIVE AND SCOPE OF ACT

1. Providing protection to children from sexual abuse.
2. The procedure for investigation and reporting cases has been made child-friendly. ^[1]
3. Provisions have been incorporated to support and rehabilitate victims.
4. To increase awareness among society members about the issue of child abuse.
5. In one of the cases, the Supreme Court made one observation that the aim of the pocso act is to protect the tender age of children and their childhood from sexual exploitation.^[2]
6. One of the provisions of this act is that the trial must be completed within one year and for this, the Supreme Court has prescribed some guidelines. ^[3]
7. By this act obligation has been placed not only on the Court and police but also on the media and society at large to protect children.
8. To ensure victim identity is kept private throughout investigation and trial.
9. To make both non-penetrative sexual assault and aggravated penetrative sexual assault an offence.
10. To fulfil the constitutional rights under Article 15(3) of the Constitution like special provisions to protect women and children, POCSO Act has been enacted.

KEY DEFINITION

• “child” means any person below the age of eighteen years
• “penetrative sexual assault” ^[4] and “aggravated penetrative sexual assault” ^[5]
• Special court that has been established under Section 28.
• Sexual assault has been defined explicitly as compared to defined in IPC, 1860.^[6]

PROCEDURAL SAFEGUARD

• Victim identity not to be disclosed as provided in Section 23. If this provision is violated then it carries a six-month to one-year prison sentence as well as a fine. Supreme Court also issued some guidelines regarding this in one of the cases. ^[7]
• The statement of the victim, shall be recorded by a woman police officer, not below the rank of sub-inspector and the officer should not wear a uniform while recording the statement as given in Section 24. The purpose behind this is to not traumatise the victim.
• Court officers must ensure that child victims are not being exposed to the accused during proceedings as provided in Section 36 of the Act. And also create an environment where victims freely give statements. Summoning a victim for questioning is allowed but it shouldn’t be done on a regular basis as regular questioning can have an impact on their mental state regarding the incident they had gone through.
• As provided in Section 33, character assassination of the victim should not be permitted. The court should not sit as a spectator while cross-examination of the victim is going on as this tool may be used to cause humiliation to the victim of crime. ^[8]
• As per Section 33 (8) of the Act, the Court can direct compensation to be paid to the victim if the court finds that after diligent enquiry on the facts of cases, the victim should be compensated. ^[9]
• To prevent revictimization of victim court, especially appoint one police officer to protect the victim in the judicial process.
• The National Commission for the Protection of Child Rights and State Commissions for the Protection of Child Rights has been designated power to monitor the implementation of the act.
• As per section 19 of the act, if any person has apprehension or knowledge that an offence has been committed then it must be reported to the police. For the Pocso Act to work efficiently reporting of cases is necessary, non-reporting will eventually hamper the aim of the act. ^[10]
• Medical examination of victims should be done with a high degree of care and precaution and before examining no practitioner should ask for a legal document. ^[11]
• A rule has been made that one support person must be assigned to the victim throughout the investigation and trial.
• Provision has been given regarding child pornography, any person who employs a child for the purpose of pornography must be punished.

CRITICISM

• Provision has been given that the victim statement must be recorded by a woman sub-inspector but it is difficult to comply with this provision as women in the police force constitute less than 10%.
• Age determination for this act still is a confusing part as not provided in the act and authorities rely on the data given by the school.
• As stated in the act the investigation must be completed within one month but still delayed completion of the investigation due to lack of resources.
• Unlike the Evidence Act, there is no requirement to prove recent intercourse.
• One issue that needs to be addressed in this act is about consensual sexual activities.
• Section 22 of the act provides punishment for those who make false complaints but exemption has been given to victims.

Attorney General for India v. Satish and another (2021)

FACT

One day the victim(12 years) tried to obtain guava in a nearby area and the accused living in the neighbourhood tried to get her to his house with the wrong intention. After reaching home, the accused tried to press her breast and attempted to remove her salwar. The accused had been convicted under Sections 342,354 and 363 of the IPC,1860 and Section 8 of the POCSO ACT, 2012 by the special court.

Then Bombay High Court acquitted the accused under section 8 of the POCSO ACT and made a conviction only under sections 342 and 354 of IPC by making one observation that there is not sufficient evidence regarding whether the top had been removed or by inserting his hand directly pressing her breast.

LEGAL ISSUE

Does section 7 of the POCSO ACT, 2012 include both direct and indirect touch?

SUPREME COURT OBSERVATION

• Whenever a statute has to be interpreted, interpretation should be such as not to hamper the aim of the act but to help in fulfilling the object of the act.
• In this case also, such interpretation should be done which promotes the object of POCSO ACT, 2012
• Sexual assault has been defined as touching the private parts of a child persuading the child to touch a person’s private parts or doing any other act with sexual intention. ^[12]
• The accused submitted that physical contact as given in section 7 must be read as skin-to-skin contact.
• The court observed that penal statute must be interpreted strictly and keeping in mind the context regarding which it has been interpreted. Interpreting section 7 as physical contact means skin-to-skin contact eventually defeats the purpose of the act.
• It will lead to a conclusion that touching a child’s private part with gloves or a condom will not be interpreted as sexual assault even if it is done with sexual intent and this is not the intent of legislature while incorporating section 7 of the act.
• Rejected the accused submission and held that Section 7 includes both direct and indirect touch.
• Through this judgement the court observed that for the offence to be constituted under Section 7 most important factor is sexual intent, not skin-to-skin contact.

COURT ORDER

 The accused has been convicted under section 7 of the POCSO ACT and sections 342,354 and 363 of IPC, 1860 and the decision of the special court has been restored by reversing the judgement of the Bombay High Court.

Jarnail Singh Vs State Of Haryana(2013)

FACT

One night the victim went missing and the parents of the victim alleged that the accused/appellant (Jarnail Singh involved in it. Subsequently, the victim was found at the residence of the accused and police arrested the accused.

The appellant’s contention is that the victim on her own made the decision to stay with him and also contended that the victim is not a minor.

Additional session judge convicted the accused to 10 years imprisonment and this decision was confirmed by Punjab and Haryana court.

LEGAL ISSUE

• Whether the victim goes with the accused on her own?
• Procedure for determining the age of a minor.

SUPREME COURT OBSERVATION

• The court observed that the victim in her statement mentioned that she had been forcibly taken by the accused and even if it did not happen and the victim had gone on her own then also the accused was liable as the victim is a minor and her consent is of no use.
• For determining the age of the victim, we have to refer to Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
• Rule 12(3) states that for determining the age of the child in conflict with the law, the first enquiry should be done on the basis of the matriculation certificate if it is not available then the date entered in the first school of the child if this is also not available then certificate issued by the local authority.
• As the victim studied only till class 3, her first school document had been considered.
• The court observed that the victim was less than 15 years old and was a minor when such an incident happened.
• Accused appeal dismissed by court.
• Through this case the court clearly stated that the procedure for determining the age of the victim can be the same as for a child in conflict with law.

UNITED KINGDOM CHILD PROTECTION LAW

• Mechanism to protect children from sexual abuse is very much developed.
• The Code for Crown Prosecutors (Crown Prosecution Service, 2010) sets out the process to be followed in case of child sexual abuse.
• The National Society For Prevention Of Cruelty To Children has been established to make this system work efficiently by releasing guidelines from time to time relating to the protection of child victims.
• In the UK Police Force, a special unit has been constituted for investigating child abuse cases i.e. child abuse investigation unit.
• If the police force feels that a child needs to be taken away from the family in an emergency situation then they can do this for 72 hours without informing the court.
• Child sexual abuse cases heard by the Crown Court in the United Kingdom and the Crown Prosecution Service decide whether prosecution should be done or not by considering the public interest.
• When a child is also a witness then special guidelines are to be followed to prevent the child from mental trauma.

AUSTRALIA CHILD PROTECTION LAW

The National Framework for Protecting Australia’s Children 2009-2020 has been adopted to prevent child abuse at an early stage. It involves collaboration between different stakeholders like the State, Ngo, and court to prevent abusive practices towards children. From this document, they ensured these outcomes as follows:

• Children’s living environment is safe and their family is supportive towards them.
• To provide adequate service for the safety of children and prevent any unfortunate incident at early stages.
• Even if a child has been abused then providing special care they need in such time.
• Indigenous children are also considered if they need any support.
• To prevent child abuse and provide adequate support to the survivor.

Through this document, state machinery tries to prevent any sexual abuse at an early stage by collaborating with various stakeholders. By engaging with local governments they keep an eye on the community to avoid any such incident and also by creating awareness among the society members.

Best Practices From Other Countries

• Like Australia, India should include more preventive measures in the framework to deal with child abuse.
• India should introduce laws like the US enacted COPPA LAW to protect child online privacy.
• The Children Act of the United Kingdom provides various welfare measures for children and does not confining their extent only to sexual offences.
• Arranging a public awareness campaign about child abuse.
• Cooperation with various international institutions for better implementation.
• Like Australia where stakeholders collaboration is done to prevent child abuse has to be applied in India by engaging with Ngo, civil society, panchayat groups, etc.
• Simplifying legal process for handling cases like cybercrime, child privacy issues, etc.
• Campaigning should be done in school to make the children aware of safe and unsafe touch.

CASES REPORTED UNDER POCSO ACT

 

2014	2015	2016	2017	2018	2019	2020	2021	2022	2023
6573	12980	30891	42681	35568	42681	44709	51129	63414	NA

 

• In 2021 Case reported under POCSO ACT is 51129 but only 5156 accused got convicted.
• From 2014 to 2021, Cases reported under pocso saw a sharp 36%
• Since 2012, all the cases that have gone to trial numbered 186602. Only 66930 cases were disposed of.
• Sikkim recorded the highest number of sexual offences against children with 48.6%.
• Since 2014 252294 cases under POCSO have been sent to trial but only 77340 cases have been disposed of.
• Out of 77340 Cases from 2014 disposed of , only 25596 cases got convicted.
• Since 2014 the overall conviction rate stood at 33%.
• Out of 126767 cases reported under penetrative sexual assault, 125560 cases happend with girls.

CONCLUSION

POCSO ACT, 2012 is very special legislation in India as it talks about gender equality by making sexaul offence gender neutral. Going ahead, the government should allocate more resources towards infrastructure,manpower for the better implementation of the act. Also, steps should be taken to spread awareness among citizens about this act. State machinery should also focus on the prevention part more efficiently by collaborating with various stakeholders.

Training of police officer should be done regularly to deal with cases of child abuse as these type of cases require special care.

Despite some flaws in the implementation of the act, POCSO ACT, 2012 is very important legislation  with various conviction and decreases in child abuse cases and most importantly cases reporting has been increased.

Reference(s):

^[1] Sections 24, 26 and 33 of the POCSO Act

^[2] Imran v. State of Delhi through Commissioner of Delhi Police & Ors.

^[3] Alakh Alok Srivastava vs Union Of India on 31 January, 2018

^[4] Section 3 of Pocso Act

^[5] Section 5 of Pocso Act

^[6] Section 7 of Pocso Act

^[7] Nipun Saxena   Vs.  Union of India (UOI) and Ors.

^[8]Nipun Saxena vs Union Of India on 11 December, 2018

^[9] Rule 7 of Pocso Rule, 2012

^[10] State of Maharashtra and Anr v Dr. Maroti (2022)

^[11] Rule 5(3) of Pocso Rules, 2012

^[12] Section 7 of the POCSO ACT, 2012