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Protection Of Children from Sexual Offences Act (POCSO Act)

Enactment Date: June 19, 2012
Act Year: 2012
Short Title: The Protection of Children from Sexual Offences Act, 2012
Long Title: An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
Ministry: Ministry of Women and Child Development
Enforcement Date: November 14, 2012
  • About:
    • POCSO Act came into effect on 14 th November 2012 which was enacted in consequence to Indias ratification of the UN Convention on the Rights of the Child in 1992.
    • The aim of this special law is to addressoffences of sexual exploitation and sexual abuseof children, which were either not specifically defined or in adequately penalised.
    • The Act definesa child as any person below the age of 18 years. The Act providespunishment as per the gravity of offence.
      • The Act was further reviewed andamended in 2019to Introduce more stringent punishment including the deathpenalty 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 thePOCSO Rules, 2020.

The Necessity of the POCSO Act

In this section, we talk about the need for the POCSO Act UPSC.

India has one of the largest populations of children in the world Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and also mandated given Indian status as a signatory to the UN Convention on the Rights of the Child. Before the implementation of the POCSO Act, the UP Children Act, 2003, was the only specific piece of child abuse legislation.

Child sexual abuse was prosecuted under the following sections ofthe Indian Penal Code:

  • I.P.C. (1860) 375- Rape
  • I.P.C. (1860) 354- Outraging the modesty of a woman
  • I.P.C. (1860) 377- Unnatural offences

However, such a measure had drawbacks since the IPC could not effectively protect the child due to various loopholes like:

  • IPC 375 doesnt protect male victims or anyone from sexual acts of penetration other than &traditional peno-vaginal intercourse.

IPC 354 lacks a statutory definition of &modesty. It carries a weak penalty and is a compoundable offence. Further, it does not protect the &modesty of a male child.

In IPC 377, the term &unnatural offences is not defined. It only applies to victims penetrated by their attackers sex act and is not designed to criminalise sexual abuse of children.

  • Features:
    • Gender-Neutral Nature:
      • The Act recognizes that both girls and boys can be victims of sexual abuse and that such abuse is acrime regardless of the gender of the victim.
        • This is in line with theprinciple that all children have the right to protection from sexual abuseand exploitation, and that laws should not discriminate based on gender.
    • Ease in Reporting Cases:
      • There is sufficient general awarenessnow to report cases of sexual exploitation of childrennot 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.
    • Explicit Definition of Terms:
      • The storage of child pornography material has beenmade a new offence.
      • Further, the offence of sexual assault 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.
  • POCSO Rules 2020:
    • Interim Compensation and Special Relief
      • Rule-9 of the POCSO Rules allows theSpecial Court to order interim compensationfor the childs needs related to relief or rehabilitation after the FIRs registration. This compensation is adjusted against the final compensation, if any.
    • Immediate Payment of Special Relief:
      • Under the POCSO Rules, theChild Welfare Committee (CWC)may recommend immediatepayment for essential needslike food, clothes, and transportation, using funds from the District Legal Services Authority (DLSA), the District Child Protection Unit (DCPU), or funds maintained under the Juvenile Justice Act 2015.
      • The payment must be made within a week of receiving the CWCs recommendation.
    • Support Person for the Child:
      • The POCSO Rulesempower the CWC to provide a support personto assist the child throughout theinvestigation and trial process.
      • The support person isresponsible for ensuring the childs best interests,including physical, emotional, and mental well-being, access to medical care, counseling, and education. They also inform the child and their parents or guardians about court proceedings and developments related to the case.

Note: In furtherance to the Criminal law (Amendment) Act, 2018, Department of Justice has started a Centrally Sponsored Scheme in October, 2019 for setting up of a total of 1023Fast Track Special Courts (FTSCs)(including 389 exclusive POCSO Courts) Across the country.

  • As on May 31, 2023, a total of 758 FTSCs including 412 Exclusive POCSO (e-POCSO) Courts are functional in 29 States/UTs across the country.

What are the Issues and Challenges with the POCSO Act?

  • Issue with the Investigation:
    • Low Representation of Women in the Police Force:
      • The POCSO Act provides forrecording the statement of the affected child by a woman sub-inspectorat the childs residence or place of choice.
      • But it is practicallyimpossible to comply with this provisionwhen the number of women in the policeforce is just 10%,and many police stations hardly have women staff.
    • Lapses in the Investigation:
      • Though there is a provision to record statements usingaudio-video means,however, there are still reports oflapses in the investigationand preservation of crime scenes in some cases,
        • InShafhi 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 theprosecutrix by a judicial magistrate.
      • Though such statements are recorded in most cases, judicial magistrates are neithercalled for cross-examination during trialnor 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.
      • InJarnail 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 inschool admission-withdrawal registers.
  • Delays in the Filing of Charges:
    • As per the POCSO Act, the investigation of a case under the act is to becompleted within a period of one monthfrom the date of the commission of the offence, or from the date of the reporting of the offence.
    • However, in practice, thecompletion of investigation often takes longerthan one month due to various reasons such as lack of adequate resources, delays in obtaining forensic evidence, or the complexity of the case.
  • No Conditions to Prove Recent Intercourse:
    • Courts are required to presume that the accused committed theoffence under the POCSO Act.
    • The POCSO Actdoes not impose any conditionson the prosecution, contrary to the Indian Evidence Act, which clearly requires the prosecution to establish recent intercourse, as well as the consent of the prosecutrix.
    • However, it has been observed that even after the minor age of the victim isproved, no such presumption is takenup by the court during trial.
      • Under such circumstances, the expected increase in the conviction rate is unlikely to be achieved.

Way Forward

  • The government should provide adequate resources such asfunding and personnel to investigating agencieshandling POCSO cases. This will help to ensure that investigations are conducted in a timely and efficient manner.
  • Investigating officersshould be provided with proper trainingon the handling of POCSO cases. This can includetraining on the proper techniquesfor collecting and preserving evidence, interviewing child victims and witnesses, and the legal requirements of the POCSO Act.
  • Setting up special courts for POCSO cases canhelp to ensure that cases are handled promptly and efficiently.This will also help to speed up the trial process, which can be important for the victim and their family.