Judging a decade of the POCSO Act

Source– The post is based on the article “Judging a decade of the POCSO Act” published in The Hindu on 20th January 2023.

Syllabus: GS2- Vulnerable sections of population. GS1- Social empowerment

Relevance– Issues related to crime against children and adolescents

News– The article explains the working of POCSO Act in India and issues faced in implementing its provisions.

What is the POCSO Act?

It was enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992. The aim of this special law is to address offences of sexual exploitation and sexual abuse of children.

What are some positive points about the POCSO Act?

A significant feature of the POCSO Act is its gender-neutral nature. In Chhattisgarh, male child victims accounted for about eight in every 1,000 POCSO cases.

There is sufficient general awareness about reporting of cases of sexual exploitation of children by individuals and institutions. Non-reporting has been made a specific offence under the POCSO Act.

The storage of child pornography material has been made a new offence.

The offence of ‘sexual assault’ has been defined in explicit terms unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.

What are the issues related to implementation of the POCSO Act?

Investigation– A large part of the investigation of offences under the Act is still guided by the CrPC.

The POCSO Act provides for recording the statement of the victim by a woman sub-inspector at the child’s residence or place of choice. But it is practically impossible to comply with this provision when the number of women in the police force is just 10%.

There is a provision to record statements using audio-video means. Supreme Court in Shafhi Mohammad vs The State of Himachal Pradesh case emphasised on the need for preserving the scene of crime of heinous offences using audio-video means.

But, there is absence of proper infrastructure to ensure the integrity of electronic evidence. Therefore, admissibility of evidence recorded using any audio-video means will always remain a challenge.

Another provision mandates the recording of the statement of the female victim by a judicial magistrate. Such statements are recorded in most cases. But, judicial magistrates are neither called for cross-examination during trial nor are those who retract their statement punished. In such a scenario, such statements get nullified.

The medical examination of a girl child is conducted by a female doctor. But, there are instances where the banned two-finger test is still in use. Infrastructure of FSL is in poor condition. Many cases have a charge sheet without an accompanying FSL report.

Age determination– The age determination of a juvenile accused of crime is guided by the Juvenile Justice Act. No such provision exists under the POCSO Act for juvenile victims. The investigating officers (IOs) continue to rely on the date of birth recorded in school admission-withdrawal registers.

In most cases, parents  are not able to defend in the court. Age estimation based on medical opinion is generally so wide in scope that in most cases minors are proved to be major. Thus, the POCSO Act has made no difference in investigation when it comes to proving juvenility.

Period of investigation– The time mandated to complete investigation of rape is two months. It has resulted in two significant changes on the field. One, there is much pressure on the IOs to submit a charge sheet in two months irrespective of the stage of the investigation.

The IOs do not want to invite internal punishment as the Ministry of Home Affairs supervises POCSO cases through the CCTNS and State police headquarters. Thus, the focus is largely on completion of investigation in two months irrespective of quality.

Second, if a charge sheet was not put up in 90 days of the arrest of the accused, the accused is granted bail. Now, when a charge sheet is put up in 60 days of the FIR, the accused may seek bail immediately after the filing of the charge sheet. Thus the accused gets the benefit of completing an investigation in a shorter time.

The POCSO Act provides that the court shall presume that the accused has committed the offence. However, no such presumption is taken up by the court during trial.