The POCSO Act and associated issues

Bombay High Court in Satheesh vs State of Maharastra case acquitted a man of sexual charges under the POCSO ( Protection of Children from Sexual Offences) act. The court cited the stringent Mandatory Minimum Sentence provision in the POCSO act and punished the person based on the IPC section 354 (Outraging the modesty of women).

However, the Supreme Court stayed the Bombay High Court verdict. But this is not an only incident, where, an accused has been acquitted under POCSO Act. Today, one more HC acquitted an accused in a similar case.

There is an urgent need to understand the issues and challenges Courts are facing in the implementation of The POCSO Act. The recent interpretation by Bombay High Court is one such issue among many.

What is the POCSO Act?

The Protection of Children from Sexual Offences Act (POCSO Act) enacted in 2012 and amended in 2019. The Act was formulated to effectively address sexual abuse and sexual exploitation of children and pornography.

Salient provisions of the Act:

First, The Act defines Child as any person below eighteen. The Act also defines different forms of sexual abuses.

Second, The Act provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police.

Third, The Act prescribes a maximum punishment of life imprisonment or the death penalty. The Act provides a mandatory minimum punishment of three years.

Fourth, The Act provides for the establishment of Special Courts for the trial of offences under the Act.

Read more about the POCSO Act

What is the intent behind the enactment of the POCSO Act?

First, data from the 2011 Census shows, India has a 472 million population of children below the age of eighteen. To protect them from sexual offences separate legislation was required.

Second, India is a signatory to the UN Convention on the Rights of the Child. So the POCSO Act was a mandatory international commitment to protect the rights of children.

Third, the Goa Children’s Act 2003 was the only legislation which specifically focuses on child abuse. Thus national-level legislation was the need of the hour that can be implemented in every State and UTs.

Fourth, Child sexual abuse was prosecuted under various sections of IPC such as Section 375 deals with rape etc. But the IPC sections suffer from various issues such as

    • IPC Section 375 does not protect male Child and protect only the traditional sexual offences like peno-vaginal intercourse.
    • IPC Section 377 and IPC Section 354 does not define the terms “unnatural offences” and “modesty”.

What is the significance of the POCSO Act?

First, The Act provides for immediate relief at the filing of the case. The compensation amount can change, based on the need of the victim. For example, the Act does not define the outer limit. The Judges can include Child’s educational need, medical needs including trauma compensation while deciding the compensation amount.

Second, The Act is Gender-neutral and Child friendly. The Act defines Child as any person below 18 years of age. Apart from that, the Act includes various safeguards for the child, like protecting the identity, avoiding victimization etc.

What are the challenges associated with the POCSO Act?

First, The POCSO Act is suffered by Abysmal rate of conviction like 14% in 2014 and 18% in 2017. The National Crime Records Bureau(NCRB) data of 2016, mentions the conviction rate as 29.6%, while pendency is as high as 89%. The NCRB also mentions the cases are not disposed within a year due to reasons such as frequent adjournments, the inability of the police to file investigation report etc.

Second, Though, the Act mentions Special Children courts to be established to hear the cases. Many states did not establish such courts. This is highlighted by  Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors case.

Third, the Act provides a maximum punishment of death penalty. But Justice J.S. Verma Committee (Constituted on the aftermath of the Nirbhaya case) and 262nd Report of the Law Commission of India, 2015, were against the imposition of the death penalty for rape cases.

Fourth, Section 8 of the POCSO Act prescribes a mandatory minimum sentence of three years. The state of J&K vs Vinay Nanda case the Court held that it cannot prescribe punishment lesser than the minimum prescribed punishment. This resulted into the various challenges such as

    • More acquittals in POCSO cases: Percentage of acquittal is high because the Judges thinks the mandatory minimum punishment prescribed is more compared to the seriousness of the crime.
    • Else the Court can acquit the accused and punish him like that of Satheesh vs State of Maharastra caseIn other words, punishing the person under Section 354 of IPC (Outraging the modesty of women).

Section 7 and 8 of POCSO Act: Section 8 prescribes the punishment for the offence of sexual assault defined in Section 7 of the Act. It provides for the mandatory minimum sentence of 3 years and a maximum of 5 years.

Section 7 of the POCSO Act mentions whoever “with sexual intent” touches the private part of children or commit any such act “which involves physical contact”… “is said to have committed sexual assault”.

Difference between Section 8 of the POCSO Act and Section 354 of IPC:

Section 8 of the POCSO ActSection 354 of IPC
This section is gender-neutralThis section is only for women and not for male or transgender child
Punishment can be a minimum sentence of 3 years and may extend to the maximum sentence of 5 yearsPunishment shall not be less than one year but it may extend to five years

Fifth, The POCSO Act is considered as a victim-oriented statute (i.e., the damage caused to the victim assumes more importance). This makes the Act, not a neutral one. For example, Section 29 of the POCSO Act mentions If a person is prosecuted under the POCSO Act, the special court “shall presume” the accused to be guilty.

Sixth, The Act does not cover all the aspects of sexual violence of children. For instance, the Act is silent on cyberbullying and other online sexual crimes of children. The Act is also silent on cases were one child made sexual violence against another child/children.

Way forward:

First, the government has to amend the POCSO Act to overcome the challenges by removing the mandatory minimum sentence and the death penalty. The amendment should also include offences such as cyber bullying of children and other online sexual crimes against children.

Second, High courts should instruct the trial courts not to grant unnecessary adjournments during the trial. State police chiefs should constitute special task forces investigating cases to prevent the pendency of cases.

Third, The Supreme Court issued a direction to set up special courts within 60 days on the districts that are having more than 100 pending POCSO cases. This has to be implemented urgently.

Fourth, the introduction of sex education in schools and educating the children about good touch and bad touch is significant. In 2008-09 Parliamentary committee report mentions the introduction of sex education, but it never materialized. It has to be implemented.

Though the Act can be amended and faster implementation can provide relief to the Children, Awareness and sensitization of people is equally important to prevent the crime itself.

 

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