In this blogpost, Abhishek Khandelwal, Student, Nirma University, briefly analysis the Protection Of Children From Sexual Offences Act, 2012.
In a survey by Ministry of Child and Women Welfare, it was found that more than 53% of children are the victims of sexual abuse. It is to be noted that it is a crime the extent of which ( in any society) can’t be determined with accuracy because the plethora of cases goes unnoticed or unreported. The Protection of Children from Sexual Offences (POCSO) Act, 2012, is an initiative of our legislature to provide regulations to gradually mitigate this crime.
In this blogpost, an effort is made by the author to give a brief analysis of the act by discussing its contents, jurisprudence and the major problem in its implementation.
Brief introduction of Protection of Children from Sexual Offences (POCSO) Act, 2012
This bill is a ‘specific’ legislation for the protection of the child from the sexual offences because previously such offences were dealt by various provisions of Indian Penal Code, which were not proving to be effective. This act is a fine work in its drafting but still there are some things which can be relooked, and the same will be discussed in this blogpost later on.
The unique features of this act are as follows:
Firstly, setting up of Special Juvenile Courts and appointment of Special Public Prosecutor. In the past, it has been observed that the trials took unnecessarily long time to dispose of the matter , but the new bill suggests disposing the case within one year. The essence of the bill lies in the fact that it is more child-friendly while recording of evidence, reporting and during investigation and trial.
Secondly, a support system from Police administration. Under this act, the statement of the girl child is to be recorded by a woman police officer who is not below the rank of sub- inspector. The presence of parents and other relatives during medical examination of the victim is allowed under the act. In the case of a victim girl, a medical examination is to be conducted by women doctor.
Thirdly, this act provides an arrangement for victim child for their special protection and care.
Fourthly, the act has an implication of the point that the person who has attempted to commit the crime(s) under the act, is liable for punishment. Just like in rape cases where the burden of proof is on the accused, here also the burden of proof of his innocence is on the accused. It should be noted that the act provides punishment for false accusation as well.
POCSO Act and jurisprudence
According to the author, applicable school of thought for “ Prevention of Children from Sexual Offences Act 2012” is Positivist School of Law. The main thinkers of positivistic school law are Jeremy Benthem (The father of English Positivism), John Austin, H L A Hart and Kelsen.
Jeremy Benthem defines law as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state. He gave the concept of utilitarian individualism based on pleasure and pain in which he stated that any act which increases the overall quantum of pleasure or happiness is justified. If we take into consideration “ Prevention of Children from Sexual Offences Act 2012”, then the concept of utilitarianism of Bentham can’t be justified because the act itself can’t be justified because of its nature, no matter what is the quantum of happiness that the act is responsible for.
Under the scheme of Austin, the law is the rule of guidance laid down for one intelligent being by another intelligent being who has power over the former being. POCSO Act 2012 can be explained under Austin’s scheme as Austin has described the positive law as “aggregate of rules set by man politically superior for men who are politically inferior.” ‘Sanctions’ under the scheme of Austin can easily be compared to some of the punishments mentioned in the POCSO Act 2012. However, Austin’s view that Positive law includes rules set by those who are not political superiors is an undue extension.
In Hart’s view, there is no necessary logical connection between the content of law and morality. He asserts that the existence of legal rights and duties may be devoid of any moral justification. According to the author, Hart was correct in stating that there is no logical connection between law and morality, and if there is any connection, it is very difficult to identify that connection because the concept of “morality” in itself is very vague and don’t appeal to reason.
POCSO Act – not the ultimate solution
The objective of the present criminal justice system as understood by the author is to punish the wrong-doer, and there is a very little aspect of reformation in today’s laws. The nature of violation in criminal justice system is of public rights and duties. These types of crimes are called crimes of misdemeanors. There are five theories of punishment under criminal justice system which are Preventive theory, Deterrent theory, Reformative theory, Retributive theory and Expiatory theory. After having a look at all these theories of punishment, the one that appeals most to ‘logic’ and ‘reason’ is the reformative theory of punishment. As already discussed, the objective of the POCSO is also to reduce the crime rate by punishing the offenders and it has very little to offer for the reformation of offenders.
Even though the parliament passed the POCSO Act, 2012 which came into force on 14th November 2012, this special law to prevent children from sexual offences remains an unimplemented law, unknown to most. Author has to say that this law is beyond knowledge or information of those who need to apply it. One would be surprised to know that in the unfortunate rape case of Delhi, the Delhi Police included the provisions of POCSO to the FIR reportedly after two days of the filing of FIR on 15th April 2013.
It is now for the Centre and State Governments to improvise (by adding reformative measures) and implement this law by creating effective machinery to check heinous crimes of gross sexual abuse against children by enlightening all the concerned about it.
- Ministry of Women and Child Development, Government of India. “Report of the Working Group on Child Rights for the 12th Five year Plan (2012-2017).
- BREAKING THE SILENCE Child Sexual Abuse in India” published by Human Rights Watch.