Author: Ankita Maji
Child abuse and violence affects children of all nations. According to the Ending Violence in Childhood Global Report 2017, no less than three out of four of the world’s children have met with inter-personal violence, cruelty and abuse in their life, irrespective of whether they belonged to a developed, developing or under-developed country.
In India, child sexual abuse has been declared as a pandemic situation, as more and more children fall prey to sexual abuse, physical violence, child pornography every year. The National Crime Record Bureau (NCRB) stated that as many as 109 children were victims of sexual abuse every day in India which showed a rise of 22% in 2018. Millions of children have suffered sexual abuses at the hands of a lot of people, including their own family members. While half of those victims suffer in silence under the fear of being punished and tortured more, the ones who manage to speak up are more than often met with skepticism, dissent and even victim blaming.
Protection of children is regarded as the main responsibility of the government as well as the society. India enacted The Protection of Children from Sexual Offences Act (POCSO), 2012, to protect the interest of the children in our country.
WHAT IS THE POCSO ACT?
The Protection of Children from Sexual Offences Act (POCSO), came into force on 14 November 2012 which was introduced for protecting children from a wide range of sexual offences including child pornography. Its objective was to provide a trial to punish the perpetrators, keeping the best interests of the child in mind. It also ensures that the child is not revictimized at the hands of the judicial system.
According to the Act, ‘a child is any person who is below the age of eighteen’.’The Act defines various forms of sexual abuse, and includes penetrative as well as non- penetrative special assault. It also has provisions for harassment, pornography etc. The Act defines aggravated sexual assault cases wherein the abuse is committed by a person in a position of trust or authority like a teacher, doctor, staff of any private or government hospital; or by a public servant or any member of the armed forces; or with a child who is mentally ill.
THE OTHER SIDE
The POCSO (Amendment) Bill 2019 was introduced in Rajya Sabha, and was later passed by both houses of Parliament. The spotlight of the Amendment Act is the introduction of death penalty for the offence of rape of minors. The bill, in its object clause refers to cases like Devender Pal Singh vs State of NCT, Delhi (2002) and Machhi Singh (1983) where the Court had held that death penalty is to be awarded in rarest of the rare cases. Although this was intended to have a deterrent effect, it can be stated that awarding death penalty may have a contrary effect in cases of child abuse and result in a lot of damage. It was argued by activists that this can lead to a reduction in the number of cases that are reported. In 94% of the cases, the perpetrator is known to the victim, and may even be a member of the family. In such cases, there is possibility of death of the victim at the hands of accused to prevent the filing of complaint. There is a greater chance that accused would murder a victim in order to avoid getting caught. Moreover, the report on death penalty by the Law Commission in 2015, states that there has been no empirical evidence showing the deterrent effect of awarding death penalty over life imprisonment. The report suggested abolishment of death penalty in all cases except terrorism. The bill also does not provide for protection of the victim and his/her family when the accused is in a position of authority.
From January to June 2019, the police recorded 24, 212 cases of assault and abuse under the POCSO Act. It was stated at a parliamentary debate regarding its amendment that only about 27% of the reported cases went on for trial, with 4% of the cases being completed. According to the NCRB data released in 2016, around 36,022 cases were recorded under this Act, out of which 89% were pending for trial, and more than 90% of pending cases were in 2014-15.The Supreme Court has directed setting up of fast track courts in districts having more than 100 pending cases. However, an increase in the number of courts does not necessarily mean a reduction in the number of pending cases. For instance, it fails to address the problem of vacancy in courts as such fast track courts will be presided by judges not below the rank of a judge of a Session’s Court and will be appointed from the same pool of judges. According to a survey, there are about 28.7 million cases pending in the district and subordinate courts.There are, currently, 17,891 judges against the required number of 22,750. With over 4 million cases pending in High Courts in India, we need 8152 more judges to settle the matters. In order to deal with the increasing backlog, setting up of more courts has been a common practice since a very long time. With funding and attention being devoted to creation of new courts, little is being done to identify the real problem that lies within the system. Without solving such issues, appointing more judges may not yield the desired results.
The Amended act seeks to provide for one-stop centres where the victims would be provided shelter, counselling, medical as well as legal aid under the same roof. However, monitoring of these centres is very essential. About a hundred complaints of sexual abuse of children were made at a centre in Haryana, as reported by Aseem Takyar, an activist, in response to a Right to Information (RTI) filed by him.
There was no compensation scheme under the POCSO Act, and based on a ruling of the Supreme Court in 2018, the National Legal Services Authority (NALSA) compensation scheme for survivors and victims of rape, has been adopted as a framework for the special courts to offer compensation. Even after the amendment, no rules were formulated by the Women and Child Ministry for the compensation of women and children under the Act. Also, the Amendment Act remains silent on the issue of who would get the compensation on the death of the child. As rightly pointed out by World Vision India’s Head of Anti-Child Trafficking Program, Joseph Wesley, “Compensation is not a reward or inducement given to the victim for her cooperation in the criminal trial process, it is for compensation for the loss or injury a victim suffers as a result of the violation of her person, dignity and rights.”There are many instances where the victims are not informed about their rights to compensation. Also the process to claim compensation is wearisome as it requires several appearances in front of the District Legal Services Authority (DLSA).It has been also noticed that victims of sex trafficking are charged under Section 370 and 373 of the Indian Penal Code, thus making them ineligible to apply for compensation under the Act. Also, children may have a tendency to turn hostile in the Court, especially when the perpetrator is a member of the family. In a case, a minor victim who was raped by her father turned hostile, where even though the father was convicted, the POCSO Judge directed the return of compensation granted to her under the Maharashtra Manodhairya Scheme. The victims go through extreme stress and remain under a lot of pressure and when they are made to return the compensation amount, they are actually re-victimized.
POCSO does not recognize the concept of consent for people below the age of 18. This means that if a sixteen year old girl is involved in a sexual activity with a nineteen year old boy, he is likely to be charged under the POCSO Act. The Act remains silent as to what happens when two minors engage in any kind of sexual activity. As a result, this act fails to provide a clear distinction between sexual abuse and consensual sex. This is often used by families as a cover up for cases of elopement and inter-caste marriages. In the case of Sabari v. Inspector of Police (2018), the Madras High Court has said in passing, or as obiter dicta, that consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity. As it was said as obiter dicta, it cannot be enforced as a law, but holds persuasive power for future judgements.
Every definition under the POCSO Act defines the accused as ‘he’ wherein only a male offender can be charged under the Act. Even though the Act is gender neutral in case of victims, it is not the case for offenders. This implies that women do not sexually abuse the opposite gender, or the same gender, which is completely false.
IMPROPER ADMINISTRATIVE AND JUDICIAL PROCESS
Apart from such loopholes in the Act, there are other administrative and judicial pitfalls as well. Firstly, the police in spite of their best efforts face a lot of obstruction while conducting a proper investigation in POCSO cases. The registration of FIR should not be delayed and the Medico-Legal Case shall be conducted in a proper manner.
Often, the forensic samples taken by the police end up being tampered or contaminated, due to negligence or improper storage facility. A smooth method for collecting evidence should be ensured.
Section 43-44 and Rule 6 of the Act states that institutions like the National and State Commissions for the Protection of Child Rights are responsible for monitoring the implementation of this Act for public interest. However, the functioning of such departments and their monitoring and evaluation procedures are not open to public scrutiny. It is imperative to study the procedures established by such bodies and evaluate their effectiveness in generating impactful outcomes.
One of the main aims of this Act is to provide speedy remedy to its victims. For instance, the time period for child testimony and conclusion of the trial is laid down in Section 35 of the Act, which requires the child testimony to be conducted within a month of cognizance by the Court, and the trial within a year of the same. However, these provisions are more often not observed than obeyed, due to the overburdened judiciary.
There are situations where the hearing is delayed for several months, or the victims is called up a number of times in the court due to the tendency of lawyers to ask for adjournments, or due to external factors like court strikes, which reduces the possibility of proper recollection of the facts.
The role of the lawyer for the child is also important. The responsibility of the lawyer is to assist the prosecution, which requires proper coordination between the Pubic Prosecutor and the child’s lawyer. While the public prosecutor and defense lawyer have well-defined roles, the role of the child's lawyer needs tobe well-examined as how he can fit in the scheme.
The legislation on criminalizing sexual offences against children was the need of the hour. The POCSO Act, along with its amendment actis a step forward in preventing child abuse but there are still major changes that need to be incorporated to abolish this crime from our society. The mere drafting of stringent laws and setting up infrastructure will not help deal with this pandemic. There needs to be a change in the mindset and a political will to deal with the problem. Training and sensitizing of judicial and medical officers dealing with such matters is required, ensuring the privacy of the victims at the same time. Also, more than anything, it is the collective responsibility of all citizens of India to protect their children and make sure that they have a childhood free of any abuse.
 https://ncrb.gov.in/StatPublications/CII/CII2016  https://timesofindia.indiatimes.com/city/gurgaon/357-complaints-lodged-at-one-stop-centre-for-women-victims-of-violence-in-a-year/articlesshow/64470845.cms https://www.firstpost.com/india/despite-sc-intervention-victim-compensation-in-pocso-cases-poor-due-to-cumbersome-process-failure-to-invoke-law-7711731  Sabari v. Inspector of Police WP. (MD). Nos. 19651 of 2018.  Id.  https://www.jurist.org/commentary/2020/05/mayank-tiwari-posco-act/