POCSO – POLITY

News: POCSO Act is a gender-neutral legislation: Delhi High Court

 

What's in the news?

       The Delhi High Court has said that the POCSO Act is a gender-neutral legislation while rejecting an assertion that the law is being "misused" as it is a "gender based" enactment.

 

Key takeaways:

       The judge said the legislature cannot stop enacting laws nor judiciary can stop applying them only because they can be "misused".

 

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