Date: 21/01/2023

Relevance: GS-2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Key Phrases: POSCO Act, UN Convention, Gender-Neutral, Indian Penal Code, Crime and Criminal Tracking Network & Systems, Code of Criminal Procedure (CrPC), Jarnail Singh vs State of Haryana (2013).

Context:

• Ten years have passed since 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, came into effect on November 14, 2012.
• 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.

POCSO Act 2012:

• Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child - anyone below 18 years of age - can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to a fine.”
• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.

Significance of the Act:

1. Gender-Neutral In Nature:
   • 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.
2. Increased general 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.
3. Storage of child pornography material has been made a new offence:
   • The storage of child pornography material has been made a new offence.
4. Period of investigation
   • Further, 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 in 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.
     • The IOs do not want to invite internal punishment as the Ministry of Home Affairs supervises POCSO cases through the Crime and Criminal Tracking Network & Systems (CCTNS) and State police headquarters.

Criticism of the Act:

• No Change in Investigation
  • A large part of the investigation of offences under the Act is still guided by the Code of Criminal Procedure (CrPC).
• Less Number of Women in 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.
• Focus is largely on Completion of Investigation:
  • The focus is largely on completion of investigation in two months irrespective of quality. 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.
• Court shall presume that the accused has committed the offence:
  • The POCSO Act provides that the court shall presume that the accused has committed the offence.
• Issue of age determination
  • Though 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.
  • Age estimation based on medical opinion is generally so wide in scope that in most cases minors are proved to be major.
  • Once a minor is proved to be a major, the probability of acquittal increases based on other factors such as consent or no injury to private parts.
• Absence of proper infrastructure
  • 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.

Way Forward:

• Child sexual abuse is a very serious matter. A society where the most vulnerable and innocent are regularly and dreadfully abused is indicative of a sombre situation that undoubtedly demands urgent intervention.
• Government must amend the POCSO Act to overcome the challenges.
• The amendment should also include offences such as cyber bullying of children and other online sexual crimes against children.
• Supreme Court issued a direction to set up special courts within 60 days in the districts that are having more than 100 pending POCSO cases. This has to be implemented urgently.
• Introduction of sex education in schools and educating the children about good touch and bad touch is significant.

Conclusion

• It has been observed that even after the minor age of the victim is proved, no such presumption (howsoever small a relevance it may have) is taken up by the court during trial.
• Under such circumstances, the expected increase in the conviction rate is unlikely to be achieved.
• Therefore, it is time that there is a review of the way the POCSO Act is implemented to see how far it has helped victims of sexual exploitation and what more needs to be done to ensure justice.

Source: The Hindu

Mains Question:

Q. Discuss the features of ‘The protection of Children from Sexual Offences Act’. What are challenges related to POCSO Act? (250 words)