UNDERSTANDING POSCO ACT IN RECENT TIMES

Reading time : 8 minutes

Introduction

Due to recent string of judgements under POCSO (Protection of Children against Sexual Offences) Act, 2012; there has been an increasing discussion and debate about the Act and its relevance in contemporary times. Since a long period of time, the importance and effectiveness of POCSO has been questioned at various stages, thus, making it important to understand what exactly POCSO is and how it has performed all these years.

POCSO: What is it and Why was it needed?

Prior to 2012 there were no laws protecting children and minors specifically and any offences against them were considered under considered under IPC itself. Before POCSO there had been an alarming increase in sexual offences against minors. In 2011, more than 7000 cases of child rape were reported according to Crimes in India. Due to inadequacies of such laws for children, a Protection of Children against Sexual Offences Bill was passed in 2011 and enacted on 22 May 2012.

POCSO Act consists of 46 schedules which have broadened the horizons for child safety in India. These schedules cover definitions of child sexual abuse, child pornography, child harassment etc. and the punishment that follows the offence. It also consists of setting up of Special Courts in order to conduct trials for offences under this Act, and how those will be regulated. In relation to trials, the proper procedure to handle minors regarding the same for different aspects have also been covered. This Act also includes include punishment for abuse by a person in position of trust or authority. These can be a relative of a child, a public servant, people in Uniforms (Armed Forces, Police) etc.

It has been in discussion lately due to a recent string of judgements by the Nagpur bench of the Mumbai High Court, but this is not the first time that the POCSO Act and its relevance has been questioned in its history. To understand its importance and why its relevance has been under question, understanding the provisions of the Act is important.

Provisions under POCSO

POCSO has been framed keeping in mind international conventions such as Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes, 2005 and United Nations Convention of Rights of Children (UNCRC). These are some of the important sections and areas that have been fundamental to protection of children-

The Act lays down definitions for sexual penetrative assault, sexual assault and sexual harassment in case of minors and lays down the punishment for the same. For penetrative sexual assault, the punishment shall not be less than 10[ten years] but may extend to imprisonment for life, and shall also be liable to fine.

For sexual assault an imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

And in case of sexual harassment the punishment for the same is imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Special courts- With the help of State Government and the Chief justice of the High court, a sessions court may be designated as a special court in order to try for the offences under POCSO Act. The court may take up cognizance of any offence after receiving an FIR/ complaint/ police complaint of facts. The State shall also appoint a Special Public Prosecutor (SPPs) who will conduct cases under this Act and ensure that the questioning is not too aggressive and that the dignity of the child is preserved. The Court shall also be child friendly in the way that any person who the child trusts (parent, guardian etc.) shall be present in the Court at all times. Special Court may permit frequent breaks for the child during the trial if required.

It shall also be ensured that the identity of child shall not be disclosed at ay point of time during the trial. The child’s name, school name, address, parents’ name/ relatives name shall all be protected from others.

The Special Court may, in addition to the punishment, may ask for compensation, as required, in order to compensate the trauma that has been caused to him/her or for the rehabilitation of the child.

National Commission for Protection of Child Rights or the State Commission for Protection of Child Rights may monitor the implementations of this Act in addition to functions assigned to them under this Act, in the manner prescribed.

There are provisions related to use of children for pornographic purposes and punishment for the same has been laid down in the Act that whoever uses a child for such purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine. Provisions relating to any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

The Act also sets up provisions in case of trial relating to offences against children, and how children should be interviewed, examined and appear in the Courts. While recording statements, the police should not be in their uniform and this must be done at the child’s house. It must also be ensured that the child does not come in contact with the accused in any given point of the time during the trial process. In cases of medical examination, the process must be conducted in front of the parents or person that the child trusts; and in case of girl child, there must be a woman doctor examining. The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence in.

There are provisions for false complains as well, with imprisonment for a term which may extend to six months or with fine or with both and no punishment shall be imposed on such child.

Implementation of POCSO Act

The report ‘Implementation of POCSO Act, 2012 and beyond’ by HAQ Centre for Child Rights states that ‘there is nothing special about special courts’ as these courts deal with matter not exclusively related to POCSO and find certain issues with the courts overall such as lack of infrastructure. Even Special Public Prosecutors which are to be appointed by State Governments are not appointed adequately.

Apart from this there have been other issues with implementation of POCSO as well- the conviction rate of Accused is under 20 per cent, that means more than 80% of the FIRs do not result in conviction of the accused. Apart from this, there has been breach of many protocols such as not maintaining child friendly atmosphere in Special Courts, tiresome and long process of seeking justice, investigation errors and time taken to conduct them, manipulation by the lawyers of the offenders or bribery. These all instances make the faith of people and families seeking justice under POCSO act falter.

Relevance and Importance of POCSO in contemporary times- Is it needed?

Due to recent judgements as well as previous ones, we find dilution in the power of POCSO act and the mechanisms that it sets up. This makes some of the decisions in courts shift to categorizing offences against children under Indian Penal Code(IPC) itself. But with that being said there is no mandatory minimum sentencing required in cases of IPC, which poses as a problem to securing proper justice and well as, importantly, deterring crime in the future.

Mandatory minimum sentencing is a sentence which the court must give to a person convicted of a crime, no matter what the unique circumstances of the offender or the offense are. This is in question now due to there being no such provisions under IPC under which many POCSO cases are being tried. Such a sentencing highlights seriousness of a crime, deters offenders in the future for not committing the crime and it also seems to remove the arbitrariness of judges and courts by requiring a minimum period that the offender has to serve.

According to NLSIU report on ‘Study on Working of Special Courts under POCSO Act’, there has been increase in reluctance to convict an offender under sections that carry a minimum sentencing, because of the belief that the punishment is too harsh for the crime. This leads to acquittal of offenders under this Act as seen throughout the history of POCSO Act.  The report also shows lack of exclusive Special Courts as a major reason for difficulty in having a child friendly environment and delay in disposal of cases.

It is very necessary to keep these children centric and specific laws, because they are not gender bound, and apply to every child, which is not something that laws related to harassment and assault in IPC are. Also, these laws follow the rule of ‘Guilty until proven innocent’ and not ‘Innocent until proven guilty’. These laws have provided protection to many children and while it is important, are these laws considered relevant anymore?

They are, but how other judgements under POCSO Act roll out is uncertain and nothing can really be predicted at this point but the future may hold some answers for the same. In the upcoming decisions taken under this Act, we may find some clear answers related to the question of its relevance.

Author: Ashita Aggarwal

Editor: Kanishka VaishSenior Editor, LexLife India.

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