Functioning of the POCSO Act – Explained, pointwise

Introduction

The Protection of Children from Sexual Offences (POCSO) Act was enacted in June 2012 and came into force in November 2012. It has completed 10 years now. The Act has played an instrumental role in addressing sexual offences against children. Yet the frequency of sexual offences against children has risen alarmingly in the last few years. There have been several challenges in the implementation of the Act, including the rise in pendency of cases and low conviction rate. Vidhi Centre for Legal Policy has undertaken a detailed analysis of the working of the POCSO Act and has suggested measures to improve its effectiveness.

What is the background to the enactment of the POCSO Act?

Despite strong constitutional (Articles 15(3), 21A, 24, 45 etc.) and International Legal Frameworks towards strengthening child rights, India’s legal system lacked any dedicated provision against child sexual abuse for long. The criminal law (IPC) failed to recognise sexual assault and exploitation of children as separate offences. The offences under IPC, intended to criminalise sexual offences against women, fell short of addressing the complexities, social impact and mental impact of sexual exploitation of children. In State of Punjab v Major Singh (1966), while addressing the appeal in a child sexual assault case where the accused was charged with section 354 of IPC, (assault with the intent to outrage her modesty), the High Court of Punjab acquitted the accused holding that a girl of seven and a half months does not possess womanly modesty, and therefore, the provision does not apply to the case. The Judgment was later overturned but showed shortcomings of the (then) existing provisions.

IPC provisions failed to criminalise the instances of sexual assault and molestation of boys. The nature of the criminal trial under the Code for Criminal Procedure, 1973 did not account for the special needs of child witnesses who were victims of sexual offences and the support they need to participate in the criminal justice process.

Several Reports of the Law Commission like 42nd Report (1971, inclusion of a dedicated provision to penalise the offence of sexual abuse of children of all ages and sex), 156th Report (1997, opined that the existing provisions against sexual offences were sufficient to address this issue) and 172nd Report (2000) dealt with the issue. The 172nd Report recommended a major amendments to address the offence of child sexual abuse and exploitation including amendment to IPC Section 375 to make it gender neutral, increase penalty in case of sexual offences committed by near relatives and persons in position of trust, penalising touching any part of the body of an adolescent with sexual intent etc.

In 2003, the State Government of Goa enacted Goa Children’s Act to promote child rights and children’s development in the State and counter rise of child abuse rackets in the State.

In 2005, the Department of Women and Child Development prepared the Draft Offences against Children (Protection) Bill, to address different offences targeted against children, including sexual offences. The Ministry of Home Affairs suggested that there should be separate comprehensive legislation against child abuse.

In 2007, a Report ‘The Study of Child Abuse‘ published by the Ministry of Women and Child Development (based on ~12,500 children) found that 50.76% of children surveyed reported having faced one or more form of sexual abuse, indicating seriousness of the issue.

In September 2010, the Ministry of Women and Child Development, prepared the draft Protection of Children from Sexual Offences Bill, 2010. After long discussions, the POCSO Act was passed by the Parliament in June 2012 and was enforced on the occasion of Children’s Day on November 14, 2012.

What are the salient provisions of the POCSO Act?

Confidentiality of the victim’s identity: The POCSO Act lays out the protocol for the media and imposes the obligation to conceal the name of the child victim, until the Special Court gives its permission for the information to be made public.

Gender-neutral Provisions: The Act doesn’t make a difference based on the gender of the victim or the assaulter. Any person under the age of 18 is considered a child, and in some cases, the courts have even found women guilty of sexually abusing children.

Mandatory Reporting of Child Abuse Cases: Often families try to hide intra-family child abuse offences. In order for the POCSO Act to work properly, third parties who know or suspect these crimes must report them. These laws have been made based on the idea that children are weak and helpless and that it is society’s job to protect their best interests.

Child-friendly Investigation and Trial: The POCSO Act lay down the procedure of investigation and trial which has been formulated keeping in mind the needs of a child. These include procedure for recording of statement, medical examination and designation of special child friendly courts.

Differentiate various sexual abuse: This act distinguishes between a wide variety of forms of sexual abuse, including non-penetrative and penetrative assault, and sexual harassment among others. The Act lays down stringent punishment for exposing children to, or using them to create Child Sexual Abuse Material (CSAM or child pornography).

What Revisions have been made to the POCSO Act?

The POCSO Act was amended in 2013 and 2018.

In 2019, concerned with rising cases of sexual offences against children and in response to coming to light of certain heinous sexual crimes committed against children, the Ministry of Women and Child Development introduced an amendment to the Act to deter offenders and ensure safety for children.

The amendment increased the minimum punishment for penetrative sexual assault from 7 years imprisonment to 10 years and aggravated penetrative sexual assault from 10 years imprisonment to 20 years.

It has also introduced the punishment of the death penalty for the offence of aggravated penetrative sexual assault.

The amendment Act has also introduced offences for transmitting or propagating pornographic materials involving a child and failing to destroy or report such pornographic materials.

What are the shortcomings in the working of the POCSO Act?

At the Trial Stage: The challenges at this stage include: (a) Lack of Special Courts in all districts; (b) Lack of Special Public Prosecutors for Special Courts; (c) Non-compliance with the timelines prescribed by the Act.

At the Post-Trial Stage: While final compensation may find a mention in the sentence order, interim compensation finds no mention in any orders of the Special Courts. Often the disbursal of compensation is delayed.

Hurdles in implementation: There are several hurdles: (a) The slow pace of designation of Special Courts; (b) Delay in investigation and filing of charge-sheets; (c) Non-appointment of support persons for child victims; (d) Delay in disposal of POCSO Cases.

The pendency of POCSO cases has reached 85% in 2020.

Source: The Times of India

Legal Aids Create Nuisance: Many legal aids add extra information to make the case stronger. Many times false information is added in the complaint. This only creates issues in the moving forward of the case .

Inadequate awareness about the POCSO Act: A 2020 study on Child Sexual Abuse Awareness and Attitudes by World Vision India found that only 35% children and 32% caregivers were aware about the POCSO Act. The awareness varied across urban, rural and tribal areas with tribal areas being the least aware.

Inadequate Training of Various Stakeholders: Child Protection System involves a lot of stakeholders like Private and Government Medical Practitioners, Juvenile Justice Boards, Law Enforcement Officials (Police), Judges, Public Prosecutors etc. All stakeholders should be aware of their own as well other stakeholders’ responsibilities. At present, there is lack of adequate training for many stakeholders e.g., Private medical practitioners are usually the first point of contact for child victims but no mandatory training is provided to enable them to handle cases of child sexual abuse effectively.

Low Conviction Rate: Of the cases analysed by Vidhi Centre, only 14% cases resulted in conviction, while 43% cases resulted in acquittal. ~23% of cases were disposed of by virtue of transfers from one court to another. Since POCSO cases are supposed to be tried by the Special Court, the Report notes that transfers indicate “either administrative mismanagement or wrongful appreciation of facts by the police”.

Source: The Times of India

What steps can be taken to enhance effectiveness of the POCSO Act?

The Vidhi Center has provided several recommendations to improve the functioning of the Act.

Legislative and Policy Recommendations: (a) Reduce the age of consent from 18 to 16 years with adequate safeguards; (b) Hold public consultations with domain experts before making any substantive amendments to the Act; (c) Stipulate a time limit for consideration of disbursement of interim compensation to the victim.

Making POCSO Courts Functional: (a) Appoint adequately trained Special Public Prosecutors exclusively for POCSO courts where they have not been appointed. Progress for this can be monitored by respective High Courts; (b) Establish Vulnerable Witness Deposition Centres, with appropriate infrastructure, in all POCSO courts in accordance with the Supreme Court judgment in State of Maharashtra v Bandu @ Daulat and Smruti Tukaram Badade v State of Maharashtra; (c) Employ a ‘hybrid’ approach for recording of evidence wherein the evidence of certain witnesses like doctors, forensic experts can be recorded virtually; (d) Ensure the appointment and continuous presence of support persons in every pre-trial and trial stage; (e) Create mechanisms to enable judges and prosecutors to have the required skill set to deal with the ‘vicarious trauma’ they experience when dealing with cases of heinous sexual offences committed against children; (f) Specifically train judges to write operational compensation to allow for timely and effective disbursement of compensation to victims.

Increasing awareness about the POCSO Act: (a) Include age-appropriate information about POCSO in school curriculum, including information on helplines like Childline; (b) Impart POCSO awareness training to school staff. Include POCSO in the curriculum of students undergoing teaching courses like B.Ed, M.Ed etc

Capacity Building at All Levels: Conduct periodic integrated capacity building programmes for stakeholders with a focus on sensitivity training.

The Report also recommends to set up more Forensic Science Laboratories (FSLs) while improving the capacity and infrastructure of existing ones.

Conclusion

Despite its progressive provisions, the lacunae in the implementation of the POCSO Act has reduced its efficacy. The perennial problem of judicial pendency has affected the POCSO Special Courts with pendency rising, and time required to dispose cases increasing gradually. The advent of digital technologies and associated concerns (like child pornography) are going to make addressal of child abuse more challenging in future. The recommendations provided by the Vidhi Centre are worthwhile which, if implemented, can go a long way in addressing the issues with the functioning of the POCSO Act.

Syllabus: GS II, Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Source: Indian Express, The Times of India, The Times of India, Vidhi Centre for Legal Policy