POSCO
ACT – POLITY
News:
Gauhati High Court
questions use of POCSO Act in Assam child marriage cases
What's
in the news?
●
The Gauhati High Court has questioned the
application of the Protection of Children from Sexual Offences (POCSO) Act in
child marriage cases in Assam while granting anticipatory bail to some people
booked under the Prohibition of Child Marriage Act (PCMA).
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.