Title : POCSO: Judicial intrepritation
Date : Nov 25, 2021
Based on a News Article published in the ‘The Hindu’ on 25th November 2021 on Page Number 6
Useful for UPSC CSE Prelims and Mains (GS Paper II)
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.
- 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.
What was the motivation behind the POCSO Act's enactment:
- First, according to figures from the 2011 Census, India has 472 million children under the age of eighteen. Separate legislation was required to protect them from sexual offences.
- Second, the United Nations Convention on the Rights of the Child has India as a signatory. As a result, the POCSO Act established a binding worldwide commitment to defend children's rights.
- Third, the Goa Children's Act of 2003 was the only piece of legislation that addressed child abuse. As a result, national-level legislation was urgently needed, which could be enacted in all States and UTs.
- Fourth, several parts of the IPC, such as Section 375, which deals with rape, were used to prosecute child sexual abuse. However, the IPC sections have a number of problems, including
- Only classic sexual offences such as peno-vaginal intercourse are protected under IPC Section 375, which excludes male children.
- The terms "unnatural offences" and "modesty" are not defined in IPC Sections 377 and 354.
What is the POCSO Act's significance:
- First, the Act provides for instant remedy when the complaint is filed. The amount of compensation varies depending on the victim's needs. The Act, for example, does not specify the outer limit. When determining the compensation sum, judges might consider the child's educational needs, medical needs, and trauma compensation.
- Second, the Act is child-friendly and gender-neutral. Any person under the age of 18 is considered a child under the Act. Aside from that, the Act offers a number of precautions for children, such as preserving their identity and preventing victimisation.
What are the obstacles associated with the POCSO Act:
- To begin with, the POCSO Act has a dismal conviction rate of 14 percent in 2014 and 18 percent in 2017. According to 2016 data from the National Crime Records Bureau (NCRB), the conviction rate is 29.6%, with a pendency rate of 89 percent.
- According to the NCRB, cases are not resolved within a year for a variety of reasons, including many adjournments, the police's failure to complete an investigation report, and so on.
- Second, the Act mentions the establishment of Special Children courts to hear the cases.
- Many states did not set up such tribunals. Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors highlights this.
- Third, the Act stipulates that the maximum penalty is the death penalty.
- However, the Justice J.S. Verma Committee (formed in the aftermath of the Nirbhaya case) and the Law Commission of India's 262nd Report (published in 2015) were both opposed to the implementation of the death sentence in rape cases.
- Fourth, Section 8 of the POCSO Act stipulates a three-year mandatory minimum penalty.
- In the matter of State of J&K vs. Vinay Nanda, the Court held that it could not impose a punishment that was less than the minimum prescribed. As a result, several issues arose, such as
- More acquittals in POCSO cases: The percentage of acquittals is high because judges believe the mandatory minimum punishment imposed is excessive in comparison to the severity of the offence.
- Otherwise, as in the case of Satheesh versus State of Maharastra, the court can acquit and penalise the offender.
- To put it another way, penalising the person under Section 354 of the Indian Penal Code (Outraging the modesty of women).
- Fifth, the POCSO Act is seen as a victim-cantered legislation (i.e., the damage caused to the victim assumes more importance).
- As a result, the Act is no longer neutral. Section 29 of the POCSO Act, for example, states that if a person is charged under the POCSO Act, the special court "must presume" that the accused is guilty.
- Sixth, the Act does not address all aspects of child sexual violence.
- For example, cyberbullying and other online sexual offences against children are not covered by the Act. The law is likewise silent in circumstances where a youngster has committed sexual violence against another child or children.
Steps to take:
- To address the problems, the government must first alter the POCSO Act by abolishing the obligatory minimum term and the death penalty.
- Cyberbullying of children and other online sexual offences against children should be included in the amendment.
- Second, high courts should direct trial courts not to grant superfluous adjournments during the course of the proceedings.
- To avoid cases lingering, state police chiefs should form specific task groups to investigate them.
- Third, the Supreme Court ordered that special courts be established in districts with more than 100 pending POCSO cases within 60 days.
- This needs to be done right now.
- Fourth, the introduction of sex education in schools, as well as the education of youngsters about good and bad touch, is critical. The implementation of sex education was mentioned in a report by a Parliamentary committee in 2008-09, but it never happened.
- It must be put into action.
- Though the Act can be revised and implemented more quickly to benefit children, public awareness and sensitization are equally vital in preventing the crime.
Tags : sexual offence, United Nations Convention on the Rights of the Child