Title : POCSO ACT: Reinterpretation by SC

Date : Nov 20, 2021

Description :

Based on an News Article published in the ‘The Hindu’ on 19th November on Page Number 1 & 10

 

Useful for UPSC CSE Prelims and Mains (GS Paper II)

 

Background of the POCSO Act:

 

• Through the Protection of Children from Sexual Offenses Act, India has worked to "protect children against offences of sexual assault, sexual harassment, and pornography" over the past nine years (POCSO).

 

• POCSO, on the other hand, has not been without controversies or flaws.

 

• The state's protection of children is guaranteed to Indian citizens under an expansive reading of Article 21 of the Indian Constitution, as well as mandated by India's status as a signatory to the United Nations Convention on the Rights of the Child.

 

• The Goa Children's Act, 2003, was the only particular piece of child abuse legislation in place prior to the enactment of the POCSO Act.

 

 

The 2012 Protection of Children from Sexual Offenses Act entails the following:

 

• It was designed to protect children from sexual assault, sexual harassment, and pornography, while also taking into account the interests and well-being of children.

 

• It was revised in August 2019 to make sexual offences against children subject to harsher penalties, including the death penalty.

 

• It considers the best interests and welfare of children under the age of eighteen to be of fundamental concern at all stages, in order to ensure the child's healthy physical, emotional, intellectual, and social development.

 

 

 

The 2012 Protection of Children from Sexual Offenses Act entails the following:

 

• In certain cases, such as when the abused child is mentally ill or when the abuse is performed by someone in a position of trust or authority, such as a family member, police officer, teacher, or doctor, it is considered "aggravated."

 

• During the investigation, the police are also portrayed in the position of kid protectors.

 

• A case of child sexual abuse must be resolved within one year of the moment the offence is reported, according to the Act.

 

 

 

 

Efficacy of the prosecution's case in cases of historical child sexual abuse:

 

• The term "historical child sexual abuse" refers to cases that were not disclosed until later.

 

• Historical abuse is not limited to institutions; it also encompasses intra-familial abuse in which the kid finds it difficult to disclose the act or offender at an early stage.

 

• It might take a long time for a youngster to recognize and appreciate the gravity of what has happened, as well as to gain the confidence to report the crime.

 

• At first appearance, this appears to go against the accepted concept of criminal law, which states that every act of crime must be reported as soon as possible, and that any delay in submitting the complaint weakens the prosecution's case.

 

 

 

What is the root of the problem?

 

• The absence of evidence to advance prosecution is one of the key disadvantages of delayed reporting.

 

• In such circumstances, there is thought to be a fewer than 5% possibility of obtaining direct physical and medical evidence.

 

• In India, in particular, procedural advice on how to prosecute historical cases of child sexual assault is lacking.

 

• To aid authorities in such cases, the United Kingdom has produced extensive Guidelines on Prosecuting Cases of Child Sexual Abuse under the Sexual Offences Act of 2003.

 

 

 

 

 

For POCSO cases, there is no time limit:

 

• In 2018, an online petition based on a child sexual assault survivor's request received a lot of attention.

 

• After more than 40 years, the survivor-petitioner tried unsuccessfully to file a complaint against her abuser.

 

• She had begun an online effort to raise awareness after failing to gain traction with the police.

 

• As a result, at the request of the then-Minister for Women and Child Development, the Union Ministry of Law and Justice confirmed that no time limit would apply to POCSO cases.

 

• Though this was a positive clarification that will bolster POCSO jurisprudence, it still does not address the problem of children who were sexually abused before to 2012.

 

The legal impediment to the registration of past child sexual offenses must be removed:

 

• The Criminal Procedure Code (CrPC) prohibits judicial magistrates from taking cognizance of cases after a certain period of time has passed.

 

• Prior to the adoption of POCSO in 2012, cases involving child sexual abuse that did not equate to rape as defined under Section 376 of the Indian Penal Code (IPC) would probably be classed under the lower, and somewhat frivolous, offence of outraging the modesty of a woman (Section 354 of the IPC).

 

• As a result, the CrPC will ban any reporting of an offence under Section 354 of the IPC longer than three years after the date of the incident.

 

• As a result of this circumstance, historical reporting of child sexual offenses before to 2012 is legally improbable.

The legal impediment to the registration of past child sexual offenses must be removed:

 

• This creates an insurmountable legal impediment to the registration of historical child sexual offenses that occurred before to 2012.

 

• While the limitation provisions of the CrPC were added to avoid delays in prosecution, the circumstances surrounding child sexual abuse cannot and must not be treated in the same light as other criminal offenses.

 

• There is a persuasive case to be made for delaying the reporting and prosecution of child sexual offenses.

 

 

 

 

 

 

Ideas for the future:

 

• Another explanation presented by Roland C. Summit is the accommodation syndrome, in which the child conceals the abuse for fear that no one will believe it, leading to accommodating behavior.

 

• As a result, there is a need to alter the law to balance the rights of the victims and the accused, based on rising research and empirical data pointing to behavior justifying delayed reporting.

 

Conclusion: The law should be reviewed:

 

• India must update its legal and procedural techniques to deal with historical child sexual abuse in light of emerging international law and the UN Convention on the Rights of the Child.

 

• Our laws must be reformated and revised immediately to account for various developments, such as previous reporting of child sexual abuse.

 

Conclusion: The law should be reviewed:

 

 

• The Union government must, at the absolute least, establish guidelines to direct effective and meaningful prosecution in situations not covered by the POCSO.

Tags : sexual harrashment, child rights