In this article, Manish of CLC discusses the POCSO Act.

What is Child Abuse?

Child Abuse can be the result of any form of abuse such as mental, physical, neglect, emotional, and sexual abuse. It occurs everywhere at different level of society, in educational institutions, workplaces, homes, neighbourhoods, and even at the places meant for child protection. Indian population is majorly covered by young generation and children are the future of the nation. India being a developing nation, must focus on the sensitive issue of Child Sexual Abuse (CSA). CSA is one of the most critical issues that is to be dealt with seriousness.

“ Safety and securities don’t just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear”.-Nelson Mandela 

The Children of our country are the most vulnerable citizens of our country towards child abuse. Silence towards it is a failure on our side. In 2007, the survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states showed that 53% said that they had been subjected to one or more forms of sexual abuse.

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Causes of Child Sexual Abuse (CSA)

  • Taboo about discussing sex and sexuality is an important factor that leads to lack of awareness in the society about sexual offences against children.
  • Sometimes abusers suffer from mental disturbances and think of themselves as a child too, which result in the heinous crime of CSA.
  • Lack of protection for isolated children and children with some disabilities are vulnerable to CSA.
  • Enticing poor children in a trap of money or fake promises, but take their advantage.
  • Indian society has Trust factor between the offender and victim because many reports/survey suggests that majority of times the offender is known to the child.

POCSO Act

The Protection of Children from Sexual Offences Act, 32 of 2012.

“An Act to protect from offences of sexual assault, sexual harassment and pornography and provides for the establishment of special courts for trial of such offences and for matters connected therewith or incidental thereto.” To curb the abomination of child sexual abuse, Parliament of India enacted ‘The Protection of Children from Sexual Offences Act (POCSO Act), 32 of 2012 with the competent legislative authority under the article 15(3) of the constitution of India. Article 15(3) constitution of India states that “nothing in this article shall prevent from making any special provision for women and children”. On 11th December 1992, Government of India also acceded to the Convention on the Rights of Child, adopted by the General Assembly of the United Nation, which prescribed a set of standards followed by all State parties in securing the best interests of the child.

The Need of POCSO Act

Provisions which addresses the critical issue of CSA in India before and after the enactment of the POCSO Act.

Before The POCSO Act, 2012

Provision of Indian Penal Code, 1860, covered the offences committed against children.

  • Section292 and 293 deals with the obscenity but fails to deal with ‘Online Obscenity’.In Ranjit D. Udeshi vs State Of Maharashtra[1], the Supreme Court held that pornography is obscenity in more aggravated form.
  • Section 372: Selling of minor children for purpose of prostitution
  • Section 376 (2) (f): punishment of rape, when a woman who is being raped is under 12 year of age, is imprisonment for a term not less than 10 years and may extend to life.
  • Section 377:  Unnatural Offence-this section is gender neutral and whenever a victim of sexual child abuse is a boy, this section is applicable.
  • Section 67B(20) of Information Technology(IT) Act, 2000 took care of online abuse of a child and even transmitting or publishing any sexually exploitative content of the child is punishable.

Why The POCSO Act, 2012

There were certain provisions relating to sexual offences committed against children but sections of the Indian penal code, 1860 were generalized in nature; no specific laws in India were not able to address sexual offences against children effectively.

  1. Provisions of Indian penal code, 1860 were not gender neutral, for eg: Section 376 is only concerned with the female, the male child was left out.
  2. Failure to curb the crime of child sexual abuse and less efficacy of the previous provision. The need for the POCSO Act was reflected by different surveys conducted by the government of India. In 2007, the survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states, showed that 53% of the children said that they have been subjected to one or more forms of sexual abuse.
  3. Increase in the number of child abuse cases: A total of 33,098 cases of CSA were reported in the nation during the year 2011 when compared to 26,694 reported in 2010 which increased by 24%.[2]
  4. When the abuser is a family member itself, the question of child safety and protection remains unanswered. The first study on CSA in India was conducted by Recovery and Healing from Incest, an Indian non-government organization (NGO) in 1998. The majority (76%) of the participants reported being abused during childhood or adolescence.[3]
  5. Despite provisions in the Information and Technology Act, 2000 that deals with child pornography were not enough to stop online child abuse.

Gender and Profile of victim & offender under POCSO Act

Any Child can be a victim of sexual offence or pornography etc. irrespective of gender. ‘Child’ means any person below the age of eighteen years [section 2(d)].

  • Under the POCSO Act victim’s gender is immaterial. According to the World Health Organization, one out of every 4 girls and one out of every 7 boys are victims of sexual abuse.
  • The national survey conducted by the Ministry of Women & Children Development in 2007 shows that 57% of children who said that they have experienced one or more form of sexual abuse, were boys.
  • The offender can be male, female or transgender irrespective of their age. When an offence under this act is committed by a child, such child shall be dealt with under the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 ( Section 34).

For example, A child of age 14 can be offender under this act but the only difference is that the Juvenile Justice Act 2015 would be applicable. Whereas the offender above the age of 18, Indian penal code and the Criminal Procedure Code,1973 would be applicable.

The key provision of the POCSO Act

Offences and punishment under POCSO Act, 32 of 2012

The preamble of the act undoubtedly states that this Act was enacted to protect children from sexual assault, sexual harassment, pornography etc. These are the following sections of the POCSO Act, 2012 which defines the offences and punishments covered under it.

Chapter II Sexual offences against children

Penetrative Sexual Assault and Punishment

  • Section 3 defines penetrative sexual assault,

When a person penetrates any object or part of his body, to an extent, into vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person. Also when he manipulates any part of the body of the child so as to cause penetration or apply his mouth and makes the child do so with such person or any other person.

  • Section 4 the prescribed punishment is imprisonment for either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also liable to fine.

Sexual Assault and punishment Therefore

  • Section 7 defines sexual assault,

Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

  • Section 8 Whoever commits sexual assault shall be punished with the imprisonment of either description for a term which shall not less than three years but which may extend to five years, and shall also be liable to fine.

Sexual Harassment and punishment Therefore

  • Section 11 defines sexual harassment,

A person is said to commit sexual harassment upon a child when such a person with sexual intent-

  1. Any person utters or makes any sound, or makes any gesture or exhibits any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child; or
  2. Makes a child do such things mentioned hereinafter;
  3. Entices or Showing a child anything which may relate to pornography or pornographic purposes, watching or contacts child either directly or digitally, threatens to use a real or fabricated depiction through electronic, film, or digital or any other mode, of any body part of the child

Explanation: Any question that involves “sexual intent” shall be a question of fact.

  • Section 12 prescribes the punishment of imprisonment for a term, which may extend to three years and shall also be liable to fine

The aggravated form of sexual offences

This act recognizes the aggravated form of the penetrative sexual assault and sexual assault when these are committed by the police officer, public servant, armed personnel, or member of security forces etc. One can say that this act is quite more serious when the protector is the perpetrator.

  • Section 5 – aggravated penetrative sexual assault and its punishment under Section 6 is minimum of 10 years of imprisonment which may extend to a term of life, and shall also liable for fine.
  • Section 9 – aggravated sexual assault and its punishment under section 10 is a minimum of 5 years imprisonment which may extend to 7 years, and shall also liable for fine.

Using the child for pornographic purpose

  • Section 13, using a child in any media, for the purpose of sexual gratification, which includes-Representation of sexual organs of a child. Engaging a child in real or simulated sexual acts. Indecent or obscene representation of child shall be guilty of using a child for pornographic purposes.

The explanation provided with section 13 states that the expression “use of child” shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.

  • Section 14 recognises different levels of punishment for the different level of actus rea. Generally, life imprisonment which may extend to 5 years is provided in Sub Section (1), if a person using a child for pornography commits an offence under section 3 of the Act, by directly participating in the pornographic act, the prescribed punishment is life imprisonment and shall also be liable for fine.
  • When a person stores, for commercial purposes any pornographic material which is sexual exploitive of a child, shall be punished with imprisonment for 3 years or with fine or both.

Mandatory reporting of cases

Where to complaint any offence relating to child sexual abuse?

  • Section 19 (1) makes it mandatory for any person, who has apprehension that an offence under this Act is likely to be committed or has knowledge that such offence has been committed, to report it either to the Special Juvenile Police Unit or to the Local Police.
  • Section 20 requires a mandatory reporting, when any person encounters with any material or object with are sexually exploitative of the child.

Special provision for recording the statement of the victim (Section 24)

  • Place of recording of the statement will be of child’s choice and comfort.
  • The police officer while recording statement must not be in uniform and also make sure that at no point of time child come in contact in any way with the offender.
  • No child shall be detained in the night for any reason.

Special courts, their powers & procedure for recording of evidence

  • For the purpose of the speedy trial, the State Government must establish a court of session to be a special court (section 28).
  • While trying an offence under this Act, a Special Court can also try an offence, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same time.
  • The burden of proof lies on accused (section 29).
  • Special public prosecutor to be appointed by the state government, the person appointed must be in practice for at least 7 years.
  • The court presumes all the type of culpable mental state of the accused [section 30(1)]. POCSO Act ensures punishment for all offenders irrespective of gender or age.
  • The court can take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which discloses such offence [Section 33(1)].
  • The court may permit frequent breaks for the child during a trial.
  • The court shall not call the child repeatedly to testify.

Protection of child victim

  • On the reasonable grounds Special Juvenile Police Unit or Local Police, after recorded in writing, such child shall be provided with care and protection homes within 24 hours of the report [Section 29(5)]
  • The court shall create a child-friendly atmosphere by allowing a family, member, a guardian, a friend, or a relative in whom the child has trust.

Note: In case a child is abused or likely to abuse by a family member, then he/she must be taken out of the custody of his/her family (Rule 4 of POCSO Rules).

Recent development in the POCSO Act

The Criminal Law Amendment (CLA) Act, 2013

After receiving the President’s assent on 2nd April 2013, the CLA Act amended the Section 42 and inserted a new Section 42A in the POCSO Act. Section 42A provides that the provisions of POCSO Act shall be in addition to and not in derogation with the provisions of any other law, and in case of inconsistency, the provisions of the POCSO Act shall have an overriding effect to the extent of the inconsistency.

The Criminal Law (Amendment) Ordinance, No. 2 of 2018

An Ordinance further to amend the Indian Penal Code, 1860; Indian Evidence Act, 1872; The Code of Criminal Procedure, 1973; and the POCSO Act, 2012 was introduced by the President. It amends Section 42 of the POCSO Act by inserting the Section 376DA, 376DB of Indian Penal Code, 1860

  • Section 376DA – Where woman under 16 years of age is raped by one or more persons, then each (acting in furtherance of common intention) of them shall be imprisoned for the remainder of that person’s natural life, and with fine.
  • Section 367DB. Where woman under 12 years of age is raped by one or more persons, then each (acting in furtherance of common intention) of them shall be punished with life imprisonment, and fine, or with death.

Note: Such fine shall be paid to the victim and must be adequate to meet the medical expenses and rehabilitation of the victim.

Alakh Alok Srivastava vs Union Of India 1 May 2018

A three-judge bench headed by Chief Justice of India Deepak Mishra, Justice D. Y. Chandrachud and Justice A.M. Khanwilkar issued directions for the speedy disposal of cases under POCSO Act. The Public Interest Litigation filed by advocate Alakh Alok Srivastava drew the attention of the Supreme Court towards non-compliance by the States with mandates of the POCSO Act. The Hon’ble supreme court issued the following guidelines to the States as follows:

  1. The High Courts shall ensure that cases registered under the POCSO Act are tried and disposed of by the Special Courts.
  2. No unnecessary adjournments should be allowed and the trial must be completed in a time-bound manner or within a specific time frame provided under the Act.
  3. To be established Special Courts, if the same has not been done already.
  4. The Chief Justices of the High Courts were ordered constitute a Committee of three Judges to regulate and monitor the progress of the trials under the POCSO Act. If three Judges are not available, the Chief Justices of the respective High Courts shall constitute a one Judge Committee.
  5. The Director General of Police or the officer of equivalent rank shall constitute a Special Task Force which shall ensure that the investigation is done properly and witnesses are produced on the dates fixed before the trial courts.
  6. Adequate steps to be taken to ensure the child-friendly atmosphere in the Special Courts.

POCSO Cell- Monitoring The Implementation of Act

Section 44 of POCSO Act assigns the National Commission for Protection of Child Rights and the State commission for The Protection of Child Rights additional work of monitoring the implementation of the provision of this Act.

Main Tasks of POSCO Cell and Activities

  • Drafting of modules for Police, CWC, Health departments, non-governmental organisation etc. to assist child at trial and pre-trial stages under Section 39 of the POCSO Act.
  • Preparation of Guidelines with Lawyers Collective and UNICEF:Guidelines for Police,
    • Guidelines for Special Courts,
    • Guidelines for Special Prosecutors,
    • Guidelines for Child Welfare Committees (CWC), and
    • Guidelines for Health Professionals.
  • Preparation of IEC (Information, Education, Communication) material;
  • Review of IEC (Information, Education, Communication) material for preventing child sexual abuse prepared by State/UT and NGOs initiated to identify best practices and to disseminate same among other States/UTs.
  • Initiating the campaign to create awareness through radio, television or media at regular intervals among the general public, children, and parents to prevent sexual abuse To monitor the appointment of Special Public Prosecutor by the State Governments.
  • To monitor the designation of special courts by the State Governments.
  • To collect information and data and make the report about the number, details of offences reported under POCSO.
  • Addressed several cases of child abuse and recommended compensation for victims.
  • Prepare a report on the factors responsible for the cause of child sexual abuse in India.

POCSO E-Box Scheme

One of the important factors that lead towards the vulnerability is the relationship of the victim with the offender. In most of the cases, the offender is known to the victim which makes a child more vulnerable and suppress from reporting the heinous crime of child sexual abuse.

  • Sexual abuse scars the psyche of the affected child for the entire life. In search of a child-friendly system of filing a complaint about child abuse, the National Commission for Protection of Child Rights (NCPCR)  came with the POCSO E-Box scheme.
  • A major initiative by NCPCR to help children to report such crimes directly to the commission. It is an easy and direct medium which allow children to file a complaint in case of sexual assault under the POCSO Act, 2012.
  • Under this scheme, NCPCR has also launched POCSO E-Box Mobile Application.

How to file a complaint using POCSO E-Box Scheme

  1. Go to the homepage of National Commission for Protection of Child Rights website
  2. Press a button named “POCSO E-Box”.Complaint Monitoring System - Open in New Window
  3. After pressing the button, it will navigate you to a page with the window having a short animation movie telling “Our children NCPCR is your friend. If someone gives you a bad touch, show you bad pictures and you are not able to tell your parents Or anyone else than Tell us! We will help you”. Then press the button “PRESS HERE”.
  4. There will be a page asking for picture options. The user has to select at least one picture from the option, fill the form and click on the submit button to register the complaint.
  5. After this, an acknowledgement that the complaint has been registered along with the complaint number will be displayed.

Note: Complainant can also send the complaint by post through messenger or any other means to the following address;

National Commission for Protection of Child Rights (NCPCR)

5th floor, Chandralok Building

36, Janpath, New Delhi-110001 India or,

Visit www.ncpcr.gov.in

In Emergency please contact- Police: 100, Childline: 1098

POCSO Workshops

These Workshops were conducted by NCPCR on salient features of the POCSO Act/ POCSO E-Box scheme. One in Durg and Raipur, Chhattisgarh and another in Jaipur and Udaipur, Rajasthan with an aim to acquaint the general public the provisions of POCSO Act and preventive steps. Mostly these workshops were attended by Teachers and Students together.

The Main objective of the Workshops

  • To encourage the participants to express themselves and self-realization.
  • To acquaint the participants with the salient features of the POCSO Act.
  • To enhance the people about the POCSO E-Box Scheme.
  • To create awareness on child sexual abuse.
  • How to file a complaint or report the abuse to the authority.

Observations

  • The participants felt that this was a great initiative to learn and acquaint with the provisions of the POCSO Act.
  • People were willing to participate and create awareness among their society to safeguard children.
  • These kinds of workshops open up areas for positive discussion of sexuality which is a Taboo in India.

Journey So Far – POCSO Act

In an Information provided by the Press Information Bureau, Government of India on 08-February-2018 states that 1,04976 cases registered under POCSO Act during the year 2014-16. The table below provides factual data about the number of case and status of cases during the year 2014-16

Category Case registered Cases convicted Person arrested Person chargesheeted Person convicted
2014 34,449 2,275 41,732 36,653 2,686
2015 34,505 3,809 41,090 37,683 4,567
2016 36,022 3,226 42,196 37,872 3,859

What should we conclude from the above table? No doubt there is an increase in the number of reporting CSA cases but we want simultaneously to curb the CSA. POCSO Act definitely helping to reduce the number of child abuse cases.

We need to introspect on effectiveness of POCSO Act: Justice Lokur, it has been six years since the enactment of the POCSO Act, Justice Lokur said despite there being more number of cases of child abuse than murder, “we spend more time discussing murders” and wondered “is murder of an adult more important than child sexual abuse“.. He also emphasised upon the need for bringing changes in evidence law, methods of investigation and strengthening of the forensics department of the government to keep pace with the changes in the nature of child sexual abuse crimes.

POCSO Act no doubts a good legislation and certainly a welcoming step to stop child sexual abuse but there must be few changes for its better implementation. For example, Section 27(2) requires that a female child to be examined by the female doctor but the issue arises when the female doctor is not available.

References

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