1.Introduction.

POCSO Act came into effect on 14th November 2012 which was enacted in consequence to Indias 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, which were either not specifically defined or in adequately penalised.

The Act defines a child as any person below the age of 18 years. The Act provides punishment as per the gravity of offence.

The Act was further reviewed and amended in 2019 to Introduce more stringent punishment including the death penalty for Committing sexual crimes on children, with a view to deter the perpetrators prevent such crimes against children.

The Government of India has also notified the POCSO Rules, 2020.

2.Features:

(i)Gender-Neutral Nature:

The Act recognizes that both girls and boys can be victims of sexual abuse and that such abuse is a crime regardless of the gender of the victim.

This is in line with the principle that all children have the right to protection from sexual abuse and exploitation, and that laws should not discriminate based on gender.

(ii)Ease in Reporting Cases:

There is sufficient general awareness now to report cases of sexual exploitation of children not only by individuals but also by institutions as non-reporting has been made a specific offence under the POCSO Act. This has made it comparatively difficult to hide offences against children.

(iii)Explicit Definition of Terms:

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

Further, the offence of sexual assault has been defined in explicit terms (with increased minimum punishment) unlike an abstract definition of outraging modesty of a woman in the Indian Penal Code.

3.POCSO Rules 2020:

(i)Interim Compensation and Special Relief

Rule-9 of the POCSO Rules allows the Special Court to order interim compensation for the childs needs related to relief or rehabilitation after the FIRs registration. This compensation is adjusted against the final compensation, if any.

(ii)Immediate Payment of Special Relief:

Under the POCSO Rules, the Child Welfare Committee (CWC) may recommend immediate payment for essential needs like food, clothes, and transportation, using funds from the District Legal Services Authority (DLSA), the District Child Protection Unit (DCPU), or funds maintained under the Juvenile Justice Act 2015.

The payment must be made within a week of receiving the CWCs recommendation.

(iii)Support Person for the Child:

The POCSO Rules empower the CWC to provide a support person to assist the child throughout the investigation and trial process.

The support person is responsible for ensuring the childs best interests, including physical, emotional, and mental well-being, access to medical care, counselling, and education. They also inform the child and their parents or guardians about court proceedings and developments related to the case.

Note: In furtherance to the Criminal law (Amendment) Act, 2018, Department of Justice has started a Centrally Sponsored Scheme in October, 2019 for setting up of a total of 1023 Fast Track Special Courts (FTSCs) (including 389 exclusive POCSO Courts) Across the country.

As on May 31, 2023, a total of 758 FTSCs including 412 Exclusive POCSO (e-POCSO) Courts are functional in 29 States/UTs across the country.

4..What are the Issues and Challenges with the POCSO Act?

(i)Issue with the Investigation:

Low Representation of Women in the Police Force:

The POCSO Act provides for recording the statement of the affected child by a woman sub-inspector at the childs 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%, and many police stations hardly have women staff.

(ii)Lapses in the Investigation:

Though there is a provision to record statements using audio-video means, however, there are still reports of lapses in the investigation and preservation of crime scenes in some cases,

In Shafhi Mohammad vs The State of Himachal Pradesh (2018), the Supreme Court held in cases of heinous crimes, it is the duty of the investigating officer to photograph and videograph the scene of crime and to preserve the same as evidence.

(iii)No Examination by Judicial Magistrates:

Another provision of the act mandates the recording of the statement of the prosecutrix by a judicial magistrate.

Though such statements are recorded in most cases, 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.

(iv)Issue of Age Determination:

Though age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act 2015 no such provision exists under the POCSO Act for juvenile victims.

In Jarnail Singh vs State of Haryana (2013) case, the SC held that the given statutory provision should also be the basis to help determine age even for a child who is a victim of crime.

However, in absence of any change in the law or even specific directions, the investigating officers (IOs) continue to rely on the date of birth recorded in school admission-withdrawal registers.

Delays in the Filing of Charges:

As per the POCSO Act, the investigation of a case under the act is to be completed within a period of one month from the date of the commission of the offence, or from the date of the reporting of the offence.

However, in practice, the completion of investigation often takes longer than one month due to various reasons such as lack of adequate resources, delays in obtaining forensic evidence, or the complexity of the case.

(v)No Conditions to Prove Recent Intercourse:

Courts are required to presume that the accused committed the offence under the POCSO Act.

The POCSO Act does not impose any conditions on the prosecution, contrary to the Indian Evidence Act , which clearly requires the prosecution to establish recent intercourse, as well as the consent of the prosecutrix.

However, it has been observed that even after the minor age of the victim is proved, no such presumption is taken up by the court during trial.

Under such circumstances, the expected increase in the conviction rate is unlikely to be achieve.

Way Forward

The government should provide adequate resources such as funding and personnel to investigating agencies handling POCSO cases. This will help to ensure that investigations are conducted in a timely and efficient manner.

Investigating officers should be provided with proper training on the handling of POCSO cases. This can include training on the proper techniques for collecting and preserving evidence, interviewing child victims and witnesses, and the legal requirements of the POCSO Act.

Setting up special courts for POCSO cases can help to ensure that cases are handled promptly and efficiently. This will also help to speed up the trial process, which can be important for the victim and their family(1).

5.The Necessity of the POCSO Act

In this section, we talk about the need for the POCSO Act UPSC.

India has one of the largest populations of children in the world Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and also mandated given Indias status as a signatory to the UN Convention on the Rights of the Child. Before the implementation of the POCSO Act, the Goa Childrens Act, 2003, was the only specific piece of child abuse legislation.

Child sexual abuse was prosecuted under the following sections of the Indian Penal Code:

I.P.C. (1860) 375- Rape

I.P.C. (1860) 354- Outraging the modesty of a woman

I.P.C. (1860) 377- Unnatural offences

However, such a measure had drawbacks since the IPC could not effectively protect the child due to various loopholes like:

IPC 375 doesnt protect male victims or anyone from sexual acts of penetration other than traditional peno-vaginal intercourse.

IPC 354 lacks a statutory definition of modesty. It carries a weak penalty and is a compoundable offence. Further, it does not protect the modesty of a male child.

In IPC 377, the term unnatural offences is not defined. It only applies to victims penetrated by their attackers sex act and is not designed to criminalise sexual abuse of children.

As such a legislative reform with a specific child protection act in mind was needed.

6.Salient Features of the POCSO Act

Children according to the Act are individuals aged below 18 years. The Act is gender-neutral.

Different forms of sexual abuse including but not limited to sexual harassment, pornography, penetrative non-penetrative assault are defined in the Act.

Sexual assault is deemed to be aggravated under certain circumstances such as when the child is mentally ill. Also when the abuse is committed by the person in a position of trust such as a doctor, teacher, policeman, family member.

Adequate provisions are made to avoid re-victimization of the Child at the hands of the judicial system. The Act assigns a policeman in the role of child protector during the investigation process.

The Act stipulates that such steps must be taken which makes the investigation process as child-friendly as possible and the case is disposed of within one year from the date of reporting of the offence.

The act provides for the establishment of Special Courts for the trial of such offences and matters related to it.

Under section 45 of the Act, the power to make rules lies with the central government.

To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority. Both are statutory bodies.

Section 42 A of the Act provides that in case of inconsistency with provisions of any other law, the POCSO Act shall override such provisions.

The Act calls for mandatory reporting of sexual offences. A false complaint with intent to defame a person is punishable under the Act. (2)

7. Conclusion

In conclusion, the Protection of Children from Sexual Offences (POCSO) Act provides strong legal protection for children who are victims of sexual offences. This special law is a powerful weapon against perpetrators of sexual offences against children and punishes such perpetrators more severely.

Citations:

1. POCSO ACT available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/pocso-act-3 ( last visited on 12 Dec, 2023)

2. Protection of children from sexual offence available at: https://byjus.com/free-ias-prep/pocso-act/ ( last visited on 12 Dec, 2023)