Context: In the recent months, there has been several instances reported where different High Courts have either quashed First Information Reports (FIRs) and pending criminal proceedings or acquitted accused persons under the Protection of Children from Sexual Offences (POCSO) Act, 2012 on the grounds of consensual sex among adolescents.
In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted.
The act aims to curb child sexual abuse by increasing penalties for sexual offences against children and creating a sensitive criminal justice system to support child victims.
Salient features of the Act: The Act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
The Act provides for the establishment of Special Courts for trial of offences under the Act.The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences.
The Act makes it mandatory to report commission of an offence and also the recording of complaint and failure to do so would make a person liable for punishment of imprisonment
(Section-19)The media has been barred from disclosing the identity of the child without the permission of the Special Court.
Key challenges to the implementation of POSCO act:
- Legal Inconsistencies: While the POCSO Act criminalised sexual intercourse with a woman less than 18 years of age, Exception 2 to Section 375 of the IPC carved out an exception in cases where the ‘wife’ was more than 15 years of age. Consequently, sexual intercourse by a man with his wife who was more than 15 years of age, was not rape. This was problematic because the acts falling in this exempted category would still fall within the scope of the POCSO Act.
- Disclosure of identities: Though the act banned it, there have been numerous instances when the identity of child victims has been revealed by the media or court themselves while giving verdict.
- Mandatory reporting provision: The mandatory reporting provision of crimes under the act proved to be counterproductive as victims of sexual abuse or their families may hesitate to approach medical professionals for fear of being drawn into a criminal case, thereby negatively impacting their right to health and medical care. It hinders adolescents’ access to safe and legal sexual and reproductive services, including legal abortions and contraceptives.
- Applicability to consensual relations in minors: The POCSO Act made any sexual activity involving a child an offence under the Act. By rendering teenagers incapable of giving consent to sexual relationships, consensual ‘romantic relationships’ between teenagers often get criminalised. Most of such cases often resulted in acquittal because the adolescent girl failed to testify against her sexual partner.
- Delay in investigation: The pendency of POCSO cases is very high due to slow pace of police investigations and delay in submitting the reports by forensic laboratories.
- Lack of Special Courts in all districts: Though the POCSO Act came into force in 2012, designation of Special Courts (as mandated by the Act) did not happen at the expected pace. States were lagging behind in designating these courts causing the Supreme Court to intervene.
- Inadequate compensation to the victims: The payment of compensation to victims under the POCSO Act is a complex issue because there is often a lack of clarity on procedures for disbursing the compensation, especially in cases where the child has no family support, or resides in a childcare institution without parental support, or there is apprehension that the compensation so awarded may be misused.
- Inadequate awareness about the POCSO Act: recently a parliamentary panel highlighted the issue of lack of accurate count of persons with disability in the country. lack of such data hamper the holistic policy formation for such a vulnerable section.
Measures to be taken:
- Increase awareness about the act by including age-appropriate information about POCSO in school curriculum, including information on helplines like Childline.
- Appropriate amendments to the law to decriminalise adolescent sexuality.
- Stipulate a time limit for consideration of disbursement of compensation to the victim.
- Set up more Forensic laboratories while improving the capacity and infrastructure of existing ones.