POCSO
– POLITY
News:
POCSO Act is a
gender-neutral legislation: Delhi High Court
What's
in the news?
● The
Delhi High Court has said that the POCSO Act is a gender-neutral legislation
while rejecting an assertion that the law is being "misused" as it is
a "gender based" enactment.
Key
takeaways:
● The
judge said the legislature cannot stop enacting laws nor judiciary can stop
applying them only because they can be "misused".
Features
of POCSO Act:
1.
Gender neutrality:
● The
Act is gender neutral and regards the best interests and welfare of the child.
● The
Act calls for mandatory reporting of sexual offences.
● A
false complaint with intent to defame a person is punishable under the Act.
2.
Definition of Child:
● The
Act defines a child as any person below
eighteen years of age.
3.
Definitions of sexual abuses:
● It
defines different forms of sexual abuse, including penetrative and
non-penetrative assault, as well as sexual harassment and pornography.
4.
Prevents child trafficking:
● People
who traffic children for sexual purposes are also punishable under the
provisions relating to abetment in the Act.
5.
Preventing re-victimization of a child:
● Adequate
provisions are made to avoid re-victimization of the child at the hands of the
judicial system.
6.
Sensitization of Police:
● The
Act assigns a policeman in the role of
child protector during the investigation process.
7.
Child friendly investigation:
● The
POCSO Act lay down the procedure of investigation and trial which has been
formulated keeping in mind the needs of a child.
● These
include procedure for recording of statement, medical examination and
designation of special child friendly courts.
8.
Speedy disposal:
● The
Act provides for the establishment of special courts for the trial of such
offences and stipulates that the case is disposed of within one year from the
date of reporting of the offence.
9.
Child Pornography:
● The
Act defines child pornography as any visual depiction of sexually explicit
conduct involving a child, including photographs, video, digital, or
computer-generated images indistinguishable from an actual child.
● The
Act is critical as it clearly defines child pornography and makes it
punishable. The amendments also penalize the transmitting of pornographic
material to children and propose synchronizing it with the IT Act.
10.
Penal Provisions:
● The
Act enhances punishment for sexual offenses against children with a provision
for the death penalty.
11.
Confidentiality of the victim’s identity:
● The
POCSO Act lays out the protocol for the media and imposes the obligation to
conceal the name of the child victim, until the special court gives its
permission for the information to be made public.
Issues:
1.
Recurrence of such crime:
● In
the context of child rape, many preventive measures and policies do have a
definitive impact on preventing child rape.
2.
Lower conviction:
● The
conviction rates are low under the Protection of Children from Sexual Offences
Act, 2012.
3.
Investigation bottlenecks:
● There
is a lack of specialised investigators, prosecutors, judges, mental health
professionals, doctors, forensic experts and social workers.
4.
Protection bottlenecks:
● Inadequate
child protection and rehabilitation services, lack of compliance with
child-friendly legal procedures are some other concerns.
5.
Under-reporting:
● A
large proportion of perpetrators are family members or those close to or known
to the family. This results in massive underreporting of such crimes.
6.
Protection of convicts:
● This
concern will only intensify with the death penalty, as the child’s family often
settles a case of a known person preventing him from going to the gallows.
7.
Vulnerability:
● The
arbitrariness of the death penalty in India also arises from the discriminatory
impact of the choice of what constitutes ‘rarest of rare’.
8.
Delay of trials:
● The
Kathua Rape case took 16 months for the main accused to be convicted whereas
the POCSO Act clearly mentions that the entire trial and conviction process has
to be done in one year.
9.
Communal Politicization:
● Considering
rapes on communal angles is another challenge. The Unnao rape case and Kathua rape case are some of the examples.
10.
Under reporting of male child victims:
● Even
though the National Crime Records Bureau has not published data on male and
female victims separately, male child victims accounted for about eight in
every 1,000 POCSO cases (0.8%).
11.
Lack of women police force:
● The
POCSO Act provides for recording the statement of the affected child 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%, and many police stations hardly have women staff.
12.
Issue of age determination:
● The
Supreme Court in Jarnail Singh vs State
of Haryana (2013) 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.
13.
Period of investigation:
● The
time mandated to complete investigation of rape (as in the CrPC, without a
similar provision in the POCSO Act) is two
months.
● Though
the aim is to expedite investigation, it has resulted in two significant
changes on the field.
○ One,
there is much pressure on the IOs to somehow submit a charge sheet in two
months irrespective of what stage the investigation is at. Thus, unfortunately, 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,
he/she was granted bail. Now, when a charge sheet is put up in 60 days of the
FIR (and not arrest), the accused may
seek bail immediately after the filing of the charge sheet. Thus, it is the
accused, and not the victim, who gets the benefit of completing an
investigation in a shorter time.
14.
Silent on consensual sexual activities:
● In
case of sexual intercourse with consent, one of which is minor, the partner who
is not minor can be prosecuted under the POCSO Act as the consent of a minor is
not considered relevant under this Act.
WAY
FORWARD:
● The
need of the hour is to sensitize the
public regarding child sexual abuse so that there is no reluctance in
reporting these crimes.
● The
investigating agencies should be well
trained and professionals such as medical practitioners involved in the
stages of investigation and trial should be efficient so as to leave any scope
of negligence on their part.
● Reduce the age of consent from 18 to
16 years with adequate safeguards.
● Investing in soft infrastructure
like trained public prosecutors, support persons, skill set to deal with the
‘vicarious trauma’ and build capacity across the system.
● Hybrid-Physical
and Virtual, approach for recording of evidence.
● Include age-appropriate information about POCSO in
school curriculum, including information on helplines like Childline to
increase awareness among the children.
Conduct periodic
integrated capacity building programmes for stakeholders with a focus on
sensitivity training