7 Years of POCSO ACT: Issues and Concerns

The POCSO Act

POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) received President's assent on June 19, 2012. The Act was primarily established to protect the children against offences like sexual abuse, sexual harassment and pornography. In April, 2018, the Government of India cleared an ordinance on POCSO Act, whereby death penalty will be given to those convicted of raping a child up to 12 years of age.

The need for POCSO Act.

The need for the POCSO Act was reflected by different surveys. In 2007, a survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states, showed that 53% of the children said that they have been subjected to one or more forms of sexual abuse. A total of 33,098 cases of Child Sexual Abuse (CSA) were reported during the year 2011 compared to 26,694 reported in the previous year 2010 that is whopping 24% increase.

Though the Indian Penal Code, 1860 did have provisions that can be invoked for offences against Children, these provisions are general in nature and no specific law existed in India to address sexual offences against the Children effectively. For example, Section 376 (Rape) under Indian Penal Code did not contemplate offences when victim is a Male Child. Further, the Code of Criminal Procedure did not have provisions to appoint special courts for trial, more sensitive legal system, special public prosecutors, fast tracking of cases, or even the privacy needed for such trials. These legal hurdles provided reasons for a special and strong legislation to curb the menace of Child Abuse, Harassment and Sexual Offences in India.

Features of POCSO Act

The flagship Indian legislation that prevents offences against Children has several important clauses to keep our children (both male and female) safe and secure. The Act defines Penetrative Sexual Assault (Section 3), Aggravated penetrative sexual assault (Section 5), Sexual Assault (Section 7), Punishment for penetrative Sexual Assault being not less than 7-years (Section 4), Punishment for Sexual Assault (Section 8), Sexual Harassment (Section 11), Child Pornographic (Section 13), Mandatory reporting of Child Abuse cases (Section 19(1)), the burden of proof on Accused (section 29), A Special Public Prosecutor being appointed (Section 31) and many more clauses that would deter anyone from committing such offences.

In addition to above punitive section, the legislation also prescribes processes that are specially meant to deal with sensitivity of victims. The POCSO Act and rules stipulate Child friendly processes. It mandates respect for the dignity and autonomy of the child at every stage of the legal process. It provides for child-friendly procedures for medical examination, recording the statement of the child by the Police and Magistrate, as well as during the examination of the child in court. Cases reported by a child must be recorded by the police/Special Juvenile Police Unit (SJPU) in simple language so that the child understands what is being recorded. A qualified translator/interpreter must be provided to the child if the statement is recorded other than the preferred language of the child. The child must be accompanied by a parent, guardian, or any other person whom the child trusts or has confidence in, during procedures involving medical examination, recording statements, or giving testimonies in court. Before any medical examination is conducted, consent by or on behalf of the child must be obtained. Medical examination can be conducted irrespective of whether a First Information Report/Complaint has been filed. Where the victim is a girl, examination must be done by a woman doctor. Also, the child must not be brought face to face with the accused while giving his/her statement to the police or magistrate, or while testifying in court. If necessary, a support person must also be provided to a child to assist him/her during the investigation and trial. Under no circumstances can the child be asked to remain in the police station at night. Child victims who are found to be in need of urgent medical attention are entitled to receive emergency medical care within 24 hours of the Police/ SJPU receiving information about the crime. A child victim may receive interim compensation for immediate needs for relief of rehabilitation and final compensation for the loss or injury caused to her/him. The State Government must pay the compensation to the victim within 30 days from the date of the order of the Special Court.

A case Study

In State V/s Sohan Lal @ Sonu, FIR No: 361/2013, under sections 376(2)(i)/506 IPC, read with Section 6 POCSO Act, under Police Station: Aman Vihar, Delhi the Honorable Session Judge Shri Vinod Yadav held that there is no dispute that the conviction can be based upon the sole testimony of a child witness in the cases of sexual assault, but the necessary pre­condition thereof is that the evidence of child victim should not be result of tutoring. In this case, circumstances clearly point out that the evidence of child victim is not free from blemish and as such, it would be highly unsafe to convict the accused merely on the basis of evidence provided by a child. In this case, the Honorable Judge Acquitted the Accused stating that there existed prior financial disputes between the parties that may have resulted in tutoring the child and sole testimony is not enough to convict the accused.

Misuse of POCSO Act:

The number of cases under the Protection of Children from Sexual Offences (POCSO) Act is on the rise but the data procured under it is not "an accurate picture of reality". conviction rate of Accused is under 20 per cent. That means more than 80% of the FIRs do not result in conviction of the Accused. A landlord-tenant dispute, matrimonial discontent, financial transactions frauds and even employer-employee disputes have been given color of an POCSO crime. Sadly, parties are taking revenge against each other using children and the dreaded POCSO Act. Ultimately the success or failure of India’s flagship legislation for Children is in hands of investigating agencies who need to frame only genuine cases without fear or favour.

Dinesh Jotwani
Advocate, Supreme Court of India