Abstract
The protection of children from sexual offences (POSCO) act, 2012 is for recognizing the rights of children who are vulnerable to sexual offences. When the rate of sexual offences are increased against the children then the POCSO act, 2012 was formulated to ensure the safety of the children by establishing judicial bodies to safeguard their rights. Although the legislation and policies devised for its enforcement have been commendable efforts of the union ministry. Some questions are raised on that time like:
What is the effect of the act on Indian society?
Whether the act has fulfilled its purpose in Indian society?
There are so many questions which are raised by the youth. And by analysing this act we get all our answers and by analysing the historical evolution of the POCSO act, highlighting the expert’s opinions prevalent legislations including Juvenile Justice act and Indian penal code, asserting its scope and critically examine the impact of its provisions on Indian society is the sole objective of the research paper. Justice is recognizing the need to protect childrenfrom sexual abuses, still the taboo of child sexual abuse prevails in Indian Society. Hence, the present study is an attempt to assess the positive as well as the negative impact of the POCSO Act on Indian society while identifying the loopholes in the legislation and making valuable suggestions for rectifying the same.
Introduction
Child sexual abuse laws in India has been enacted as a part of the child protection policies of India.
The parliament passed the protection of children against sexual offences bill (POCSO), 2011 regarding child sexual abuse on 22 may 2012, making it an act. A guideline was passed by the Ministry of women and child development, India. The rules formulated by the government in accordance with the law had also been notified in November 2012 and the law had become ready for implementation. There have been many calls for more stringent laws. As per the 2011 All India Census, 39% of the population residing in India are children but many of these children are susceptible to Child Sexual Abuse (CSA). The Rate of Crime against children across the nation increased from 21.1 in 2015 to 28.9 in 2017 as reported by National Crime Records Bureau (NCRB). The period of childhood is the foundational period which ought to be safe, secure, and jovial but for some of the children, the reality of childhood is altogether different. Children look up to adults to ensure their safety and care but they often unknowingly fall prey to the exploitation termed as CSA. Children look up to adults to ensure their safety and care but they often unknowingly fall prey to the exploitation termed as CSA. Poverty, violence, discrimination, conservative community structure, and social prejudices are the primary impediments in their path to justice which makes them the “most innocent and vulnerable casualties of exploitation”.
Historical Background
Crimes against children include physical and emotional abuse, neglect, and exploitation, such child pornography or sex trafficking of minors.
Numerous protective and preventive special and local laws were enforced before the POCSO Act which specifically mentioned the offenses wherein children are victims of sexual abuse including, inter alia, the Indian Penal Code (IPC), 1860; Prohibition of Child Marriage Act, 2006; Transplantation of Human Organs Act 1994; Child Labor (Prohibition & Regulation) Act, 1986; Immoral Traffic (Prevention) Act, 1956; and Juvenile Justice (Care & Protection of Children) Act, 2000 [later succeeded by the Act of 2015]. Indian Penal Code penalized the offenses of Rape u/s 376, Assault on Girl Child with Intent to Outrage her modesty u/s 354, sexual harassment u/s 354A, use of criminal force to Girl Child u/s 354B, Voyeurism u/s 354C, Stalking u/s 354D, Insult to the Modesty of Girl Child u/s 509, Procuration of Minor Girls u/s 366A, Importation of Girls from Foreign Country u/s 366B, Buying of Minors for Prostitution u/s 373, and Selling of Minors for Prostitution u/s 372.
Not only the aforesaid legislations but the Constitution of India accords the highest priority to the safety and well-being of children under Article 15(3), 21, 21A, 23(1), 24, 39(f), 41, 45, 47, and 51A(k). Later, on 20th January 2006 the Central Government notified the Commissions for Protection of Child Rights Act, 2005 which constituted the National Commission and State Commissions for proper enforcement of children’s rights and effective implementation of laws and programs relating to the children.
Need of Pocso Act, 2012
Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377.
These provisions neither protect male children from sexual abuse nor protect their modesty. Also, definitions of the terms like ‘modesty’ and ‘unnatural offence’ are not provided in the Code. Owing to the lack of any specific legislation, it was pivotal to establish a statute that pointedly tackles the issue of growing child sexual abuse cases in the country. With the efforts of multifarious NGOs, activists and the Ministry of Women and Child Development, POCSO Act, 2012 was enforced on 14th November 2012.
Judicial Advancement
In the case of Sakshi v. Union of India, the Hon’ble Supreme Court expressed the need for a specific legislation to safeguard children’s rights against child sexual abuse. The judgement order written by the bench comprising Hon’ble Justice Rajendra Babu (Former Chief Justice of India) & Hon’ble Justice G.P. Mathur dated 26th May, 2004 stated that,
“The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required.”
The Court mentioned that the aforesaid directions are in addition to the directions given in the case of State of Punjab v. Gurmeet Singh & Ors. wherein the Court emphasized on the need for maintaining confidentiality of information of a rape victim and maintaining anonymity of the victim of the crime as far as possible during prosecution to save the victim from further harassment. It can be said that the case recognised rights of a rape victim including right to privacy, right to live with dignity, right to personal liberty, right to in camera trial. All these rights were further enshrined in the POCSO Act too. It was further reiterated in the following decisions: Independent Thought v. Union of India, Shreemati Vishakha Devi v. State of Rajasthan, and K.S. Puttaswamy v. Union of India.
Enactment of Bona Fide Legislation
The International developments and judicial advancements motivated the Central Government to devise law for the protection of children from sexual abuse.
It thus prepared the draft POCSO Bill in 2012 to give effect to Articles 19 & 34 of the UNCRC. The POCSO Act received the assent of the President on 19th June 2012 and was enforced on 14th November 2012 which is celebrated as National Children’s Day in India. It aims at the protection of children from sexual assault, sexual harassment, and pornography. It also establishes special courts for the trial of such offences and other matters concerned therewith. It safeguards children’s right to protection from sexual offences and their fundamental rights ensured under Article 19, 21, 21A including, inter alia, Right to Privacy, Right to Education, Right to Live with Dignity to ensure proper development of children in the country.
Further Amendments
The Hon’ble Supreme Court of India took Suo moto cognizance of alarming rise in number of reported child rape incidents in the Suo moto writ petition (Criminal) No. 1/2019 wherein it directed the central government to make amendments.
Accordingly, the POCSO Act, 2012 was amended in 2019 by the Protection of Children from Sexual Offences (Amendment) Act, 2019. The Hon’ble Supreme Court of India took Suo moto cognizance of alarming rise in number of reported child rape incidents in the Suo moto writ petition (Criminal) No. 1/2019 wherein it directed the central government to make amendments. Accordingly, the POCSO Act, 2012 was amended in 2019 by the Protection of Children from Sexual Offences (Amendment) Act, 2019. Although the POCSO Act was enacted to oust the menace of child sexual abuse from Indian Society but since there hasn’t been a significant decline in the crime rate so far it becomes crucial to scrutinize the impact of the stringent provisions of the legislation on Indian Society.
Positive Effects on Society
Unlike the existing legislations, POCSO Act is wider in scope since the word “person” brings every person ordinarily residing within the country within the ambit of the legislation irrespective of their gender identity or sexual orientation.
Thus, the liability for any offence committed by any person will be equally attributed to all genders be it male, female or transgender. The legislation framers have emphasized the deterrent theory while inscribing the penal provisions for commission and abetment of sexual assault, sexual harassment, and pornography but regard has been also made to the degree of the crime for attributing criminal liability on the offender. Our empirical results reveal that the POCSO Act has reduced the Growth rate of incidents of sexual offences against children in India from 4.681% to −4.611. Moreover, our empirical results also reveal that by enhancing the quality of life it is possible to restrict the POCSO incidences across Indian states.
Section 19 of the Act prescribes the procedure for reporting the offences penalised under the Act. A CSA case must be reported to either the Special Juvenile Police Unit or the local police unit in writing with an entry number which shall be recorded in a book kept by the respective Police Unit.
The report shall be recorded in the language and manner such that the child victim can easily understand the report filed by him or her. The Police unit may, if deemed necessary considering the facts and circumstances, provide care and protection to the child victim or may refer the matter to the Child Welfare Committee (CWC), Special Court or Sessions Court, as the case may be, within 24 hours of registering the report. Section 21 of the Act further ensures that no offence remains off-record by penalising the personnel who, by any reason whatsoever, failed to register the complaint. Furthermore, Section 23 abhors the practice of ‘malicious prosecution’ to prevent the legislation from being a tool of harassment. ‘Victim-friendly prosecution’ is another praiseworthy feature of the legislation. Confidentiality of personal information of the child victim safeguards the Right to Privacy of the child victim and helps in evading media interference.
Negative Effects on Society
Section 29 of the Act states that where a person is being prosecuted for committing or abetting or attempting to commit an offence penalised under the Act then “the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”.
This provision shifts the onus probandi (the burden of proof) from the victim to the accused unlike other legislations. Unless the accusations against the accused are proved fallacious “beyond reasonable doubt”, the Special Court will assume the accused as ‘guilty’. Although this provision might appear palpable in light of the increasing crime rate, it is against the principles of criminal jurisprudence. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth against the accused but considered as a whole there is invariably a long distance to travel and the whole of distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted.
“Presumption of guilt” before conviction is one of the major impediments in the path of justice for innocent people who fall prey to malicious prosecution.
Since the year of its enactment is being used as a ‘weapon to harass’ then a ‘tool to get justice’. The offences under the POCSO Act are cognizable and thus the innocent people who are charged under the Act suffer unwarranted persecution. Not only this but since the cases are to be disposed within 1 year of their reporting thus the accused gets merely 1 year’s time to prove his innocence which is much less de facto. “Presumption of guilt” before conviction is one of the major impediments in the path of justice for innocent people who fall prey to malicious prosecution. Since the year of its enactment is being used as a ‘weapon to harass’ then a ‘tool to get justice’. The offences under the POCSO Act are cognizable and thus the innocent people who are charged under the Act suffer unwarranted persecution. Not only this but since the cases are to be disposed of within 1 year of their reporting thus the accused gets merely 1 years' time to prove his innocence which is much less de facto.
Implementation of the Act
The National Policy for Children, 2013 and National Plan for Action for Children, 2016 directed stakeholders (including Central and State Governments, National Commission for Children and State Commissions and Child Welfare Committees) to strategize and initiate programs to protect children from ‘emerging concerns’ including sexual abuses.
In response to the directions, the Central Government has initiated several programmes for implementation of the POCSO Act and to ensure protection of children from sexual abuses which are elucidated as follows:
The POCSO E-box was launched by the Ministry of Women and Child Development on 26th August, 2016. It is an online complaint portal for easy and direct reporting of sexual offences against children and for ensuring timely action against the offenders.
A short clip was prepared by the Ministry in collaboration with UNICEF which was telecasted on ‘Doordarshan’ for one week from 2nd to 9th October, 2019 for spreading awareness regarding POCSO Act and Child Safety.
All the educational institutions were directed by the Ministry of Human Resource Development (MHRD) to place a POCSO Box in the premises where any student can drop a complaint on being victim of such a crime.
They were also advised to make students aware about the POCSO Act and the Childline Helpline Number ‘1098’. MHRD also started showing a short movie titled ‘Komal’ on Child Safety in all the schools for spreading awareness among children. NCERT has also published Childline Helpline Number ‘1098’ and POCSO E-box details in every textbook.
The Ministry of Home Affairs has developed an ‘Investigation Tracking System for Sexual Offences’ portal for timely completion of investigations in cases pertaining to Section 4 & 6 of POCSO Act read with Section 376 of I.P.C. Bureau of Police Research and Development is conducting various courses for sensitization of personnel. States and Union Territories have been advised to send officers for these courses and for timely completion of Investigations of POCSO cases.
Department of Justice has formulated Fast Track Special Courts (FTSC) Scheme under which a total of 1023 Courts are to be set up out of which 389 will be exclusively for POCSO Cases and will be established in the Districts where the number of pending cases under POCSO exceeds 100, whereas the other 634 will be set up as per the need and pendency of Rape and POCSO Cases. These will be funded from ‘Nirbhaya’ Fund.
POCSO Rules 2020 were notified by the Parliament on 9th March 2020 which prescribes effective rules regarding awareness generation, capacity building, and care & protection of child victims.
Conclusion
After scrutinising all the provisions of the POCSO Act and statistically analysing the impact of POCSO Act on Indian Society, the following results are ascertained:
The POCSO Act is indeed a bona fide legislation and has been enforced to safeguard children’s rights against sexual abuse and to effectuate international agreements to which India is a party. Therefore, Hypothesis 1 tests positive.
The POCSO Act indeed has positive effects on Indian Society and therefore, Hypothesis 2 tests positive
Spurt in the all India Rate of Crime against children is owing to increased reporting of cases of Child Sexual Abuse and a real increase in commission of criminal offences as is explicit from Table 2. Therefore, Hypothesis 3 tests positive.
The policies formulated by the Central Government are a laudable attempt to implement the provisions of the Act but the difference between de jure policy making and de facto policy implementation has not been spanned yet. Although the Central Government has strived a lot to spread awareness among people but this variety cannot be refuted that there is an urgent need for an efficacious implementation policy. Therefore, Hypothesis 4 tests negative.
The POCSO Act is being used as a ‘weapon of harassment’. Therefore, Hypothesis 5 tests positive.
References
https://www.nature.com/articles/s41599-022-01469-x#:~:text=Our%20 empirical%20results%20reveal%20that,POCSO%20incidences%20across%20Indians%20states.
https://blog.ipleaders.in/pocso-act-everything-you-need
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES, ACT 2012
This article is written by Bharti Thakur of K.R. Mangalam University, Sohna, Gurgaon
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