POCSO ACT

02.09.2024

POCSO ACT

IN NEWS –

• POCSO Act came into effect on 14th November 2012 which was enacted in consequence to India’s 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.

WHAT IS POCSO ACT?

• POCSO Act came into effect on 14th November 2012.
• It was enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992.
• The objective 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.
• It 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.

Definition of child

• The Act defines a child as any person below the age of 18 years and recognizes the right of every child to be free from any form of sexual violence.
• The Act sets a uniform age of consent for all children, irrespective of their gender or sexual orientation.

Crimes

• The Act recognizes that any form of sexual contact with a child is an offence, regardless of whether the child consented or not, or whether the child was deceived or coerced.
• It criminalizes all forms of sexual contact with a child, including penetrative and non-penetrative acts, as well as sexual harassment and stalking.

Reporting

• The Act makes it mandatory for anyone who knows an offence under the Act to report it to the police or a child welfare committee.
• Failure to do so can attract imprisonment of up to 6 months or a fine or both.
• It empowers the child to file a complaint directly or through a parent, guardian, teacher or any other person in whom the child has trust and confidence.

Support to victim

• It provides for medical examination and treatment of the child within 24 hours of the report, as well as compensation and rehabilitation for the victim.
• Protect the identity of victims.
• The Act also makes it mandatory for media personnel and others to protect the identity and privacy of the child victim. Disclosure of any information that can lead to the identification of the child can invite imprisonment of up to one year or fine or both.

Punishments

• The Act prescribes stringent punishments for offenders, ranging from a minimum of 7 years to life imprisonment or even the death penalty in some cases.
• The Act shifts the burden of proof from the victim to the accused, making it easier for the child to testify and seek justice.

Special Court

• It provides for special courts and procedures to ensure speedy trial and a child-friendly justice delivery system.
• The Act provides for the appointment of special public prosecutors and special juvenile police units to handle cases under the Act.
• The Act mandates that cases under the Act should be disposed of within one year from the date of taking cognizance by the court.

ASSOCIATED CHALLENGES

• 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 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.

• 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.

• 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.

• 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.

Way forward

• The POCSO Act is a crucial instrument for protecting children from sexual offences and ensuring their best interests.
• However, it is not enough to have a strong law on paper; it is equally important to have a strong will and commitment to implement it effectively on the ground.
• Therefore, there is a need for concerted efforts by all concerned parties to create a conducive environment for the prevention, detection, reporting and prosecution of such cases.
•  Only then can we ensure that every child enjoys his or her right to a safe, secure and dignified childhood.