EDITORIAL ANALYSIS : Judging a decade of the POCSO Act

Source: The Hindu

• Prelims: POCSO, National Crime Record Bureau etc
• Mains GS Paper I and II: Vulnerable sections of society, Laws, institutions and bodies constituted for the protection and betterment of vulnerable sections of society etc

ARTICLE HIGHLIGHTS

• Ten years have passed since the Protection of Children from Sexual Offences (POCSO) Act, 2012, enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992.

INSIGHTS ON THE ISSUE

Context

POCSO Act:

• The Union Ministry of Women and Child Development led the introduction of the POCSO Act in 2012.
• The Act was designed to protect children from sexual assault, sexual harassment and pornography
• Special courts: Provide for the establishment of Special Courts for the trial of such offenses.
• Amendment: The Act was amended in 2019 for enhancing the punishments for specific offenses in order to deter abusers and ensure a dignified childhood.

Key Features of the Act:

significance:

• Gender neutral nature of law: The National Crime Records Bureau has not published data on male and female victims separately(Chhattisgarh)
  • Male child victims accounted for about eight in every 1,000 POCSO cases (0.8%).
• It endorses society’s apprehension that the sexual exploitation of male children is a serious issue.
• Sufficient general awareness to report cases of sexual exploitation of children not only by individuals but also by institutions.
  • Non-reporting has been made a specific offense under the POCSO Act.
• The storage of child pornography material has been made a new offense.
• Offence of ‘sexual assault: It has been defined in explicit terms (with increased minimum punishment) unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.

Issues:

• Large part of the investigation of offenses under the Act is still guided by the Code of Criminal Procedure (CrPC).
• The investigation of penetrative sexual assault cases generally involves recording the statement of the prosecutrix, a medical and forensic science laboratory (FSL) examination and determination of the child’s age.
• Recording by woman sub-inspector: 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.
  • Number of women in the police force is just 10%, and many police stations hardly have women staff.
• The provision to record statements using audio-video means: The pilot project has yet to be implemented across States.
• Recording of the statement of the prosecutrix by a judicial magistrate: Judicial magistrates are neither called for cross-examination during trial nor are those who retract their statement punished.
• Medical examination of the prosecutrix is conducted according to provisions of the CrPC: The medical examination of a girl child is conducted by a female doctor (as specified in the POCSO Act).
  • There are instances where the banned two-finger test is still in use.
• There have been no attempts to upgrade the FSLs in States to expedite the examination of exhibits.
• The age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act.
  • No such provision exists under the POCSO Act for juvenile victims.
• 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.
  • In most cases, parents (in the absence of hospital or any other authentic records) are not able to defend in the court.
• Age estimation based on medical opinion is wide in scope that in most cases minors are proved to be major.
  • The POCSO Act has made no difference in investigation when it comes to proving juvenility.
• The POCSO Act provides that the court shall presume that the accused has committed the offense.
  • No conditions whatsoever are laid down in the POCSO Act in contrast to the Indian Evidence Act (Section 114(b):
    • It provides for the prosecution to prove recent intercourse, and the prosecutrix to state in court that she did not consent.

Issues with investigation:

• The time mandated to complete investigation of rape is two months.
  • It has resulted in two significant changes on the field:
• There is much pressure on the IOs to submit a charge sheet in two months irrespective of what stage the investigation is at.
  • The Ministry of Home Affairs supervises POCSO cases through the Crime and Criminal Tracking Network & Systems (CCTNS) and State police headquarters.
• If a charge sheet was not put up in 90 days of the arrest of the accused, he/she will be granted bail.
  • 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.

Step taken by The Ministry of Home Affairs (MHA):

• It introduced a scheme to create an Investigation Unit on Crime Against Women (IUCAW)
• Made up of 15 police officers: with at least one-third comprising women officers and headed by an additional superintendent of police in each district.
• Aim: Ensure quality investigation of crimes against women on a 50:50 expenditure sharing basis.

Judicial stand:

• High courts around country: Recognised that adolescent relationships are normal and criminalisation of such acts affects both parties
• Vijayalakshmi v. State Rep. (2021): High Court cited said that “adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy”.

UN stand(The United Nations Committee on the Rights of the Child (CRC) in General Comment No. 20:

• It urged states to balance protection of children from sexual exploitation and abuse with respect for their evolving autonomy.
• States should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.”
• In 2019, it urged states to remove status offences: which criminalise adolescents who engage in consensual sexual acts with one another.

Related Constitutional Provisions:

• Article 21: Every child the right to live with dignity the right to personal liberty and the right to privacy
• Article 14: the right to equality
• Article 15: right against discrimination
• Article 23 & 24: right against exploitation
• Article 21A: Right to free and compulsory elementary education for all children in the 6-14 year age.
• Article 39(f): Obligation on the State to ensure that:
  • Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity
  • Childhood and youth are protected against exploitation and against moral and material abandonment.

Way Forward

• In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge.
• It is time that there is a review of the way the POCSO Act is implemented to see how far it has helped victims of sexual exploitation and what more needs to be done to ensure justice.
• Blanket criminalisation of consensual sexual acts among or with adolescents: It is in gross oversight of their sexual development, bodily integrity and autonomy, and violates their right to life, privacy, and dignity.
• Comprehensive sexuality education is needed to bridge knowledge gaps, build positive skills and attitudes so as to enable adolescents to make informed decisions and navigate through interpersonal relationships, while also realizing the importance of their health and dignity.
• An amendment to the POCSO Act and the Indian Penal Code to decriminalize consensual acts involving adolescents above 16 years.
  • ensuring that those above 16 years and below 18 years are protected against non-consensual acts.

QUESTION FOR PRACTICE

Q. Examine the main provisions of the National Child Policy and throw light on the status of its implementation.(UPSC 2016) (200 WORDS, 10 MARKS)