Decade of the POCSO Act

Context

• Recently, India completed ten years since the enactment of its Protection of Children from Sexual Offences (POCSO) Act, 2012.

About

• Enactment:
  • The Protection of Children from Sexual Offences (POCSO) Act, 2012, enacted in consequence of India’s ratification of the UN Convention on the Rights of the Child in 1992.
    • It came into effect on November 14, 2012. 
• Aim:
  • 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 inadequately penalised. 

Protection of Children from Sexual Offences (POCSO) Act, 2012

• Definition of a child:
  • The Act defines a child as any person below 18 years of age.

• Defines forms of sexual abuse:

• It also defines different forms of sexual abuse including penetrative and non-penetrative assault as well as sexual harassment and pornography.

• Section 7 mandates that:
  •  “Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.
    • Most important ingredient in Section 7 is the sexual intent of the offender and not skin-to-skin contact.
• Punishment: 
  • POCSO prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. 
• Monitoring implementation:
  • Section 44 (1) of POCSO Act provides that the National Commission for Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCR) shall monitor the implementation of the provisions of the Act.
• The following amendments were brought under POCSO Act, 2012, through POCSO (Amendment) Act, 2019:
  • Section 2 (Definitions) was amended to incorporate definition of child pornography;
  • Section 4 (Punishment for penetrative sexual assault) amended to increase the quantum of punishment from a minimum of seven years to minimum of 10 years, and a minimum of 20 years in case of a child below 16 years.

Effective implications of the Act

• Gender-neutral nature of the Act:
  • Even though the National Crime Records Bureau has not published data on male and female victims separately, in Chhattisgarh, male child victims accounted for about eight in every 1,000 POCSO cases (0.8%). 
  • Though the reported number is not big, it still endorses society’s apprehension that the sexual exploitation of male children is also a serious issue that has been largely unreported.
• Rise in awareness:
  • There is sufficient general awareness now to report cases of sexual exploitation of children not only by individuals but also by institutions as non-reporting has been made a specific offence under the POCSO Act. 
  • This has made it comparatively difficult to hide offences against children.
• At odds with child pornography:
  • The storage of child pornography material has been made a new offence. 
    • Further, the offence of ‘sexual assault’ has been defined in explicit terms unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.

Issues & challenges

• Under staffing:
  • 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.
• Inadequate infrastructure:
  • There is a provision to record statements using audio-video means.
  • 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. 
• Two-finger testing: 
  • Medical examination of the prosecutrix is conducted according to provisions of the CrPC. 
    • However, the medical examination of a girl child is conducted by a female doctor, as specified in the Act. 
  • Even so, and as observed by the Supreme Court of India, there are instances where the banned two-finger test is still in use. 
• Age determination of a juvenile delinquent:
  • 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 specific provision, the investigating officers (IOs) continue to rely on the date of birth recorded in school admission-withdrawal registers.
  • Age estimation based on medical opinion is generally so wide in scope that in most cases minors are proved to be major.
• Focus on completion 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 the investigation, it has resulted in putting 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. 
• 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. 
• Low conviction rates:
  • Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana and Delhi constitute 51 percent of the POCSO cases in the country but the rate of conviction in these states is between 30 percent to 64 percent. 

Way Ahead

• The POCSO Act is exhaustive legislation that aims at covering all the aspects of child sexual abuse.
• 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 avoid any scope of negligence on their part. 
• The POCSO Act already makes the procedure child friendly and this approach should be followed by the judicial officers, magistrates, and police officers so that the child victims could repose trust in them.