An Analysis of the POCSO Act

Introduction

Child sexual abuse is usually defined as molestation or sexual abuse in which an adult or an adolescent uses a child for his/her own sexual stimulation and pleasure. Child sexual abuse can be committed in different forms which include any kind of sexual activity with a child (whether with force or by another form of persuasion), any kind of exposure of genitals, nipples, male or female reproductive parts or to make use of a child in the production of child pornography. Any form of incest behaviour or sexual exploitation even by a family member is covered under the definition of sexual abuse. It can happen in a varied setting in school, at home wherever the child is in a vulnerable position or the where the child labor is common. The global rate of child sexual abuse prevalent in all strata of society has been estimated at 19.7% for females and 7.9% for males. In India, Maharashtra in spite of being one of the most developed states is amongst the top three states which have recorded the highest no. of child rapes between 2011 to 2014. The problem of this sort is a global one and is experienced both in developing as well as developed countries. On 14th November 2012 the Government of India(GOI) passed the Protection of Children from Sexual Offences(POCSO) Act with an objective to protect the children from offences of sexual assault, sexual harassment, and pornography and provide for establishment of special courts for trial of such offences and matter concerned therewith or incidental thereto^[1] The act takes serious cognizance of sexual offences concerning the children below 18 years of age.  

Background

Before 2012, only sexual offences against children were perceived by the law which was secured by three sections of Indian Penal Code, i.e. sexual intercourse without assent—376 unspecified acts—354, Homosexuality/brutishness/homosexuality—section 377 Sexual assault is one which is committed without the consent of the other party. Subsequently, Government of India passed a special law called as “Protection of Children from Sexual Offences” (POCSO- 2012). The mentioned act criminalizes sexual assault, sexual harassment, and pornography involving a child less than 18 years of age. Laboratory of forensic science plays a critical role in cases where Child Sexual abuse has to be analyzed deeply under POCSO Act. The act also works at safeguarding the child’s interests at each stage of the legal process by inculcating child-friendly mechanisms for all purposes including reporting, recording of evidence, investigation and speedy trial through special courts. The act also makes provision for medical examination in presence of the parent or any other person whom the child trusts and in case of a female child by a female doctor. Thus, the whole act in its sense will provide utmost protection to the child with the due legal process being carried out and justice being delivered.

Analysis

Features

• Section 2(1)(a) of the Act defines “child” as any person below the age of eighteen years. Thus, it is the only law that lays down provisions governing sexual abuse of male children.
• It is first of its own kind which criminalizes not only watching porn but also collecting pornographic content under Sec. 15 of the Act. Further, it specifies the punishment for a term which may extend to three years or fine or both.
• The Investigating officer ought to get child medically examined in the nearest government or local hospital within the time period of 24 hours. However, while the statement of the girl child is being recorded;
  • It shall be recorded in front of women police, not below the rank of sub-inspector.
  • Presence of parents and other relatives must be ensured during the process of medical examination.
• Child Welfare Committee is to be informed within the time frame of 24 hours.
• Section 19 of the POCSO act provides a shield to any person informing about the commission of an offence. Under section 19(7) no person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).
• Chapter VI of the POCSO Act lays down the procedures for recording statement of the child. Section 24-26 intends to ensure child-friendly procedure for collecting evidence, reporting, investigation and processing trial. It provides for following;
  • No detention shall be made during the night.
  • Ensuring privacy of the child by protecting its identity from media.
  • Frequent breaks during the trial as and when needed shall be provided.
  • Child should not be called repeatedly to testify
• Under section 28 of Chapter VII, the act recommends the establishment of special courts. Further, u/s 29, 31 and 32 mentions presumptions of certain offences, how proceeding is to be carried out before a special court and special public prosecutors.
• Section 35(2) compels the special courts to complete the trial, as far as possible, within a period of 1 year from the date of offences.
• This Act facilitates the assistance of an interpreter while recording evidence of a child. Also, under section 38(2) if a child is differently abled he is to be provided with a special educator or a person who is familiar with the manner of communication.
• Chapter IX of the said Act deals with the miscellaneous provisions wherein section 40 guarantees the child right to take the assistance of legal practitioner. Further, this chapter specifies alternate punishment and provisions pertaining to the implementation of Act and public awareness.
• The act defines penetrative sexual assault, aggravated penetrative sexual assault, aggravated sexual assault, and sexual harassment along with its punishment.

Legal Analysis

Pre -POCSO

Sakshi Vs. Union of India^[2]

A public interest litigation petition was filed by an NGO named ‘Sakshi’ expressing concern over the increase in sexual violence against women and children. They contended the abuse of children in a manner other than the penile/ vaginal penetration. It is often by means of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration and accordingly demanded not only effective implementation of section 354,375/376 and 377 but also to widen the scope of term ‘rape’. The petition was dismissed by the apex court. However, the Supreme Court laid down several guidelines popularly known as ‘Sakshi guidelines’ wherein the court ordered (a) arrangement of such screen where witness does not get to see the body or face of accused, (b)the questions put in cross-examination on behalf of accused, if they are directly related to the incident must be given in writing to the presiding officer first who may scrutinize the same, (c) allotment of breaks as and when required by the victim during the testimony.

Bachpan Bachao Andolan v UOI^[3]

In 2006,  a public interest litigation was filed to address the serious violations of child rights. The petition majorly focused on discouraging the trafficking of children from various circuses which was increasing at a gradual rate. The petitioners demanded appropriate implementation of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and certain offences such as regular sexual harassment and abuses to be made cognizable under the Indian Penal Code, 1860. Accordingly, the court directed the central government to issue suitable notifications prohibiting the same. Also, the court directed formulation of certain schemes governing rehabilitation.

Post-POCSO

Nishu v Commissioner of Police Delhi and Ors.^[4]

In the aforementioned case, the petition was filed by a minor girl who was repeatedly raped and kidnapped by a gang. One of the accused was a police constable in Haryana against whom the petitioner failed to present any medical reports or a copy of FIR under Indian Penal Code, 1860 or any other provision of POCSO as a result of which the Supreme Court refused to adjudicate upon the dispute. Similarly, in the case of Apna Ghar Rohtak Shelter Home^[5] in May 2012, where over 100 inmates were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still not been invoked against the accused.

Avinash v. State of Karnataka^[6]

The above mentioned case is an apt example of negligence on the part of police officers and the investigating agencies which further contributed to the vulnerability of the victim. An appeal was filed by an accused who not only kidnapped the victim but also had several sexual intercourses with her. However, in spite of commission of such a heinous crime on his part the court refused to proceed with the documents and evidence presented had numerous loopholes.

State of Rajasthan and Ors v. Prahald and Ors^[7]

In the aforementioned case, the appeal was filed by the state for obtaining confirmation of capital punishment announced by the lower court. This was a case wherein a complaint was filed against the accused under section 302 of the Indian Penal Code. 1860 and Sections 3 & 4 of the POCSO Act, 2012 alleging murder and harassment. The case was labeled as ‘rarest of the rare’ and court confirmed the death sentence.

Jnanedar Nath Das v. State^[8]

The accused was convicted under section 10 of the POCSO Act. An appeal was filed against labeling the accused perpetrator criminal. The court taking into account the authenticity of the witness and consistency of her testimony held the prior judgment to based upon a fair appraisal. Thus, it upheld the sentence and dismissed the appeal.

Loopholes

Although the Act holds good and renders an ample number of advantages, however, it will be wrong to label it as a masterpiece legislation which is free from any sought of lacunae. The loopholes present in the Act often turns out to be advantageous for the offenders and ill towards the society. The Act inherits within itself several loopholes. To mention a few;

1. Even a gesture of mere touch, pat, brush on any part of the body is cardinally brought under the term ‘Sexual Penetration’ under section 376 of Indian Penal Code. Similarly, under POCSO bare touching is considered equitable to sexual penetration. Thus, this essentially implies that if in lieu of the custom prevalent in the society a mere touch is made by any male elderly person or for that matter anyone for the sole purpose of rendering blessing/ cajoles or convince touches a child it would lead the concerned person to serve sentence in jail.
2. The analysis of the provisions contained in the POCSO Act plainly reflects the biases it holds towards the victims. The act not only facilitates unfair advantage to the concerned victim but also undignifies the principles of natural justice by failing to act in accordance with the justice, equity and good conscience.
3. It has been observed that often there arise cases wherein although the child is an adult with the age of 22-23 years, however, he or she possesses mental instability say, for instance, an adult is declared to be of age four mentally by the clinical psychologists. Thus, in such a situation it becomes really difficult for the advocates to bring the concerned act under the provisions of POCSO Act. The act is silent on such an integral issue which leads to denial of remedy and the justice to many victims making them eligible for the societal torture.
4. The provisions contained in POCSO are pretty much parallel or simultaneous with once which are already a part of existing laws in the society except for the few. In such a situation adamant of an act like POCSO renders the sentence of accused entirely in the hands of biased legislation thereby denying an individual access to his fundamental and constitutional right by which he can defend himself.
5. Apart from taking cognizance of the trivial touch, it renders the existent relations in the society at stake. Say, for instance, if a father out of love for his daughter pats on his daughters back it might lead to putting innocent father straight behind the bars since mere pat on his daughters back amounts to forceful penetration under the POCSO Act.
6. The people are often seen taking advantage of the act to degrade the position of an individual or his family in the society. The Act opens the room for manipulation and misuse by the victims and the other person for succeeding in their inappropriate motives. Say for instance if a girl is below 18 years of age and is immature she might possibly get influenced by someone and complaint against the concerned accused thereby taking erroneous advantage of the legal remedy available to her. Thus, this opens the room for manipulation and misuse.
7. People are ignorant about the existence of such an act which renders protections to the children from all forms of sexual abuse. There exists lack of awareness amidst the people or the society which is to to be governed by the act. No steps have yet been taken even after the 5 years of commencement of this act by any administrative bodies to raise awareness relating to the same.
8. The act incorporates ample amount of punishments and penalties behind which the intention of the legislature might have been to impart a deterrent effect. However, to the contrary in practice, the proceedings under the act more often results in the acquittal of the accused depriving the victim of the remedy or her rights and opening the doors for criticism from the society.
9. This act further curtails the personal liberty of the individuals who are below the age of 18 years by criminalizing even the consensual sex between two adolescent or the children below the age of 18 years. It not only leads to violations of the personal liberty guaranteed to them by the Constitution of India^[9] but also, makes them a victim of societal harassment.
10. The act opposes the child marriage and consummation of the child during the same. However, it will not be wrong to contend that though it is prohibited under the secular law. The practice of child marriage does find a valid mention in the personal laws governing the society thereby complicating the issues or complaint received and rendering its authenticity objectionable.

Recommendations

An act might contain several loopholes which makes it inconsistent with certain aspects of the society as well as the legal system, however, a defect can always be cured by abiding with guidelines and amending the errors prevalent. Some of the recommendations go as under;

1. As mentioned by Justice Verma committee, “there is an urgent need to audit the performance of all institutions of governance and law and order”.
2. Provisions governing the issue pertaining to situations wherein the child or the adolescent denies to undertake medical examination must be laid down. Often situation arises where on one hand the child denies any sought of medical examination and on the other, his or her family insists on the same. In such a situation it becomes very difficult for the authorities to complete the essentials of the procedure. Thus, a specification must be laid down leaving no scope for ambiguity.
3. While POCSO Act mandates the medical examination of the female child to be conducted by the female professional there exists certain provisions under criminal law say for instance in the Criminal Law Amendment Act,^[10] which essentially provides for examination of the concerned victim without any failure by the medical officer present. Hence, this existing ambiguity must be canceled out by rendering explanations or formulating amendments.
4. The act provides the victims with the free medical care and imposes a legal obligation upon the authorities to abide by the same. Thus, a provision imposing a legal obligation upon the concerned authorities or the state must be inserted ordering them to provide appropriate reimbursement or financial aid to the victims who belong from economically unstable or unsound strata of the society for the expenditure incurred by them to avail medical aid.
5. The Act shall be amended with respect to legalizing the consensual sexual intercourse between two adolescents. This step would contribute to depleting the level of societal harassment towards the victims and in the termination of pregnancies.
6. Training of all the authorities indulged in the process of rendering justice and care is highly recommended considering the sensitivity of the crime, mental stability of the victim at the given point of time and the societal pressure. Special emphasize is needed to be rendered in this regard on the medical professionals and the police authorities indulged in the process in order to facilitate child-friendly witnessing and statements, structured assessment and healthy and accessible medical aid.
7. POCSO Act calls for mandatory reporting which often leads the family to face social stigma and suffer embarrassment coupled with frustration. A sense of leniency can be adopted in such a situation in order to safeguard the punishment of those who are being prosecuted for the mere reason of not informing the concerned or the respective authorities. Also, the mandate of reporting opens the room for unreasonable or fraudulent complaint by the individuals to attain revenge of their personal fights. Individuals often try to obtain an unfair advantage or abuse the power by filing false complaints.
8. It is not per se essential to impose exceptionally rigid punishments and fine in order to ensure effective implementation and create a deterrent effect. Certain provisions must be amended which are too firm in nature and renders the accuse to suffer odious imprisonment.
9. Since the very adamant of POCSO Act a lot of questions have been raised pertaining to the manner of dealing with the situation where although the victim is an adult, the medical evidence produced pertaining to his or her mental stability states otherwise. This issue has always created a huge hue. The act is silent on such situations. Thus, this issue ought to be dealt with urgently so as to enable the advocates to bring such cases under the ambit of the POCSO Act and help clients obtain justice.

Although the POCSO Act has dealt adequately with almost all the sexual abuses, the act further needs to widen its scope by including penile-vaginal penetration.

Conclusion

Using the secondary sources of research, the researchers have not only managed to provide an overview and background of the POCSO Act, 2012 but has also, conducted an analysis of the Act, based on the features, judicial pronouncements. and Statistical data. Further, the researchers have found out various loopholes present in the act which vitiates the act of being a complete code in itself.

Thus, it shall not be considered wrong when one says, the act has to a great extent succeeded in serving its objective taking into account the judicial pronouncement wherein judiciary has made an attempt to deal with the crime rate. However, there exist various loopholes which needed to be corrected or taken into consideration in order to ensure its effective implementation and bring down the crime rate.  Hence to curtail the same, researchers have also put forward several recommendations.

^[1] Section 2(d), Protection of Children from Sexual Offences (POCSO) Act, 2012.

^[2] 2004 (5) SCC 518.

^[3] (2011) 5 SCC 1.

^[4] 2014 (85) ACC 962.

^[5] (2012).

^[6] 2006(1) SCC(Cri) 316.

^[7] (2000) 9 SCC 241.

^[8] MANU/DE/0056/2016.

^[9] Art 21. Constitution of India, 1950.

^[10] Section 166A Protection of Children from Sexual Offences(POCSO) Act, 2012.