- The Supreme Court has shown due restraint in declining to apply the provisions of the Protection of Children from Sexual Offences Act to mentally retarded adults whose mental age may be that of a child.
Why the SC restrained the provision?
- POCSO is meant to protect children from sexual offences.
- To extend it to adult victims based on mental age would require determination of their mental competence.
- This would need statutory provisions and rules; the legislature alone is competent to enact them.
- Judicially, to treat some adults as children based on mental capacity would, in the Bench’s opinion, do violence to the existing law protecting children from sexual offences.
- It is noted that there may be different levels of mental competence, and that those with mild, moderate or borderline retardation are capable of living in normal social conditions.
What is POCSO? A 2013 survey conducted by UNICEF states that almost 42% of Indian girls experience sexual violence before they are teenagers.
- This prevalence of child abuse in India is a significant ongoing problem that needs urgent government attention and POCSO act has been one of the measures taken to tackle this issue.
Key provisions of the act:
- POCSO is gender neutral.
- The law defines a child as any person below the age of 18 years and provides protection to all children from offences such as sexual assault, penetrative sexual assault and sexual harassment.
- It also penalises a person for using a child for pornographic purposes.
- The Act treats an offence as “aggravated” if it is committed by a person in a position of authority or trust such as a member of the security forces, a police officer or a public servant.
- The law provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police, who are required to make immediate arrangements for care and protection.
- Special emphasis has been placed on ensuring the speedy disposal of trials in special children’s courts as well as following of special procedures to keep the accused away from the child at the time of testifying.
- For monitoring and implementation of the provisions of POCSO,
the Act enjoins that the National Commission and State Commissions for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act, 2005, shall ensure the effective implementation of the provisions of POCSO.
Concerns with the act:-
- The issue of age of consent has generated some controversy. The implication of this law is not clear in cases where both parties are below 18 years.
- Age covers only physical age but mental age is not covered.The sexual assault case of a cerebral palsy patient in front of SC shoes this dilemma.
- Many police and medical personnel still need to be sensitized on it. Authorities often tell parents not to report abuse but even one child’s silence is massively dangerous because on average a single molester will abuse 48 more victims.
- The National Commission for Protection of Child Rights reported that in 2014, of a total of 6816 cases that were registered as FIRs under the POCSO Act only 555 made it to court. This is a dismal 8%.
- State governments involved cite a lack of funds and manpower to appropriately address the issue.
- Most states have unspent grants amounting to hundreds of crores of rupees.
- Section 35 (2) of the Act, stipulates a period of one year from the date of taking cognizance of the incident, for the court to dispose off with the case.
- Crimes against children under POCSO are burdened with cases of human rights violations and cases under SEBI, MCOCA and TADA.
- The Act has led to increased number of cases filed, and also translated to an increase in the higher rate of conviction.
- Cases registered for sexual abuse have risen from 8,904 in 2014 to 14,913 in the year 2015, under the POCSO Act. Further, it has made it mandatory for anyone who witnesses suspected child abuse to report any such incidents.
- To prevent child abuse, especially sexual abuse, the Delhi government has decided to come up with Stay Safe-Prevention-Educating Children awareness modules for three age groups (5-8 years, 9-12 years and 12-18 years).
- The Indian parliament also passed the Juvenile Justice (Care and Protection of Children) Act in 2015 which includes components such as plans to introduce foster care in India and mandating registration of all institutions housing children in the need of care and protection.
- The recent Supreme Court case Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors. has redirected public attention to the issue of child abuse.
- Intervention at the family-level can help prevent children from entering crime, forced labour or trafficking.
- Education about inappropriate physical contact of strangers is an important first step that needs to be refreshed every few months.
- All those dealing with children including teachers and doctors should be trained how to detect and deal with the cases they encounter.
- Social workers must be empowered to go into homes to assess children at risk,