This article is written by Ritika Sharma pursuing B.Com LLB (Hons.) from the University Institute of Legal Studies, Panjab University. This article elaborates upon the fundamentals of the POCSO Act, 2012. Along with its importance, features and shortcomings, the article covers all the highlights of the Act with the help of recent case studies.
This article has been published by Sneha Mahawar.
The Protection of Children from Sexual Offences Act, 2012 [“POCSO Act, 2012”] is legislation which aims at protecting children from all types of sexual abuse. Although the Convention on the Rights of the Child was adopted by the United Nations in 1989, the offences against children were not redressed by way of any legislation in India till the year 2012. It provides stringent deterrents for the commission of offences against children ranging from a minimum of 20 years of imprisonment to the death penalty in case of aggravated penetrative sexual assault.
POCSO Act, 2012
Need of the POCSO Act, 2012
Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377. These provisions neither protect male children from sexual abuse nor protect their modesty. Also, definitions of the terms like ‘modesty’ and ‘unnatural offence’ are not provided in the Code.
Owing to the lack of any specific legislation, it was pivotal to establish a statute that pointedly tackles the issue of growing child sexual abuse cases in the country. With the efforts of multifarious NGOs, activists and the Ministry of Women and Child Development, POCSO Act, 2012 was enforced on 14th November 2012.
Scope of the POCSO Act, 2012
In India, POCSO Act, 2012 is not the only legislation which deals with child sexual abuse cases. The POCSO Act cannot be called a complete code in itself and provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap and encapsulate the procedure and specify the offences.
Applicability of the POCSO Act, 2012
POCSO Act, 2012 is divided into 46 sections. It was published in the official gazette on 20th June 2012 but came into force on 14th November 2012 which raises the question of its applicability to the cases prior to its enforcement date.
In the case of M. Loganathan v. State (2016), the offence of rape was committed on 28.09.2012 i.e., before the Act was enforced, but the trial court convicted the accused under Section 4 of the POCSO Act. Consequently, the High Court of Madras declared that conviction being violative of Article 20(1) of the Constitution of India, 1950 was unconstitutional and it was modified to punishment under Section 376(1) of the Indian Penal Code, 1860.
In another case of Kanha v. State of Maharashtra (2017), the accused was convicted under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act for having committed aggravated penetrative sexual assault upon the victim which resulted in her pregnancy. The accused contended that unless there is proof of age of foetus, the date of the commission of offence was not in proximity with 14.11.2012 and thus, he cannot be prosecuted under Section 6 of the POCSO Act. The High Court of Bombay accepted the argument and acquitted the accused of all the charges. Therefore, it is apparent that when the applicability of the POCSO Act is questioned, the courts either alter the conviction of the accused or acquit them.
The Act enunciates the punishment where the offences have been committed against a child. Section 2(1)(d) of the POCSO Act contains the definition of child. It states that, “ a child means any person below the age of eighteen year”. This implies that offences perpetrated against anyone of the age less than eighteen years are punishable under the POCSO Act.
Importance of the POCSO Act, 2012
- POCSO Act, 2012 was enacted when the cases of sexual abuse against children were rising. It contains provisions regarding the protection of children from sexual assault and pornography and lays down the procedure for the implementation of these laws.
- Incidents of sexual abuse against children occur at schools, religious places, parks, hostels, etc and the security of children is not guaranteed anywhere. With such emerging dangers, it was significant to introduce separate legislation which could provide a reliable system for mitigating the number of such offences and punishing the perpetrators.
- The Act has been instrumental in providing a robust justice mechanism for the victims of sexual abuse and has highlighted the significance of child rights and safety. The reporting of cases of child sexual abuse has also surged as a consequence of awareness. The Act covers punishment for both non-penetrative sexual assault and aggravated penetrative sexual assault.
Features of the POCSO Act, 2012
Some of the salient features of the POCSO Act are discussed as follows:
- Confidentiality of the victim’s identity: Section 23 of the POCSO Act provides for the procedure of media and imposes the duty to maintain the child victim’s identity unless the Special Court has allowed the disclosure. Section 23(2) states, “no reports in any media shall disclose the identity of a child including his name, address, photograph, family details, school, neighbourhood and any other particulars which may lead to the disclosure of the identity of the child”. In the landmark case of Bijoy @ Guddu Das v. The State of West Bengal (2017), the Calcutta High Court reiterated the law made under Section 23 and declared that any person including a police officer shall be prosecuted if he/ she commits such a breach.
- Gender-neutral provisions: Another glaring feature of the POCSO Act is that it does not create any distinction between the victim or the perpetrators on the basis of their gender. This overcomes one of the biggest shortcomings of the Indian Penal Code’s provisions. The definition of child includes anyone below 18 years of age and in several cases, the courts have even convicted women for engaging in child sexual abuse incidents.
- Mandatory reporting of child abuse cases: Sexual abuse cases happen behind closed doors and the elders attempt to hide these incidents due to the stigma that is attached to these crimes. Consequently, for the proper implementation of the POCSO Act, reporting of these incidents by the third parties who have the knowledge or apprehension of such offences, has been made mandatory under Sections 19 to 22 of the POCSO Act. These laws have been made on the basis of assumptions that children are vulnerable and helpless and society has the duty to protect the interests of the children.
In the case of State of Gujarat v. Anirudhsing and Another (1997), the Supreme Court had observed that it is the duty of every citizen to aid and cooperate with the investigative agencies and give information regarding the commission of cognizable offences. In various instances, schools and teachers help the child victims by reporting the sexual abuse cases to the authorities. For example, in the case of Nar Bahadur v. State of Sikkim (2016), teachers received information that her student is pregnant due to repeated sexual assualts on her by an elderly accused. The teachers informed the panchayat who lodged an FIR in the police station.
Shankar Kisanrao Khade v. State of Maharashtra (2013) is an important case where the Supreme Court laid down guidelines regarding reporting the offence. In this case, rape was committed on an 11-year-old child with moderate intellectual disability but it was neither reported to the police nor to the juvenile justice board. The Court observed that children with intellectual disabilities are more vulnerable and therefore, the institutions which house them have the responsibility to report sexual abuse incidents against them. Furthermore, it was laid down that non-reporting of crime in accordance with the provisions of the POCSO Act is a serious offence.
- The last seen theory: The theory of last seen is applied in the child sexual abuse trials. According to this theory, the person who is last seen with the victim is assumed to be the perpetrator of the offence when the time gap between the point when they were last seen alive is so minute that it is not possible that any other person could have committed the crime. In the case of Shyamal Ghosh v. State of West Bengal (2012), it was observed that when the time gap is large then it is not reasonable for the Courts to apply the last seen theory.
- Child-friendly investigation and trial: Sections 24, 26 and 33 of the POCSO Act lay down the procedure of investigation and trial which has been formulated keeping in mind the needs of a child. The following points are taken into consideration while investigating any crime under POCSO Act:
i. The statement of the child is to be recorded at his/ her place of residence and generally by a woman police officer.
ii. The officer who is to record the statement of the child should not be wearing a uniform.
iii. The officer should ensure that the child does not come in contact with the accused during the examination.
iv. A child is not to be detained in the police station at night.
v. The officer should ensure that the identity of the child is not revealed.
vi. The statement of the child is to be recorded in the presence of a person in whom the child has trust, for example, their parents.
vii. The statement of the child is to be recorded via audio-video electronic means.
viii. The assistance of the translators or interpreters should be taken wherever necessary.
ix. Frequent breaks are to be allowed during the trial.
x. The special court has to ensure that the child is not called to repeatedly testify in the trial court.
xi. Aggressive questioning of the child is not permitted during the trial.
Overview of the POCSO Act, 2012
The POCSO Act, 2012 is comprehensive legislation containing 9 chapters dealing with the offences, punishment and procedure.
Child sexual abuses
- Penetrative sexual assault: Section 3 of the POCSO Act defines penetrative sexual assault and Section 4 lays down the punishment which was made more stringent by the 2019 amendment. In the case of Bandu v. The State of Maharashtra (2017), a person was committed under Sections 4 and 6 of the POCSO Act along with some provisions under the Indian Penal Code, 1860 for having committed penetrative sexual assault on a physically and mentally challenged 10-year-old girl. In Pranil Gupta v. State of Sikkim (2015), the victim aged 15 years stayed with the accused and injuries were found in her genital area. The High Court relied on the statement of the accused that the accused opened her clothes and raped her 5 times in one night. The contention of the accused that he was not aware of the victim being a minor was not accepted and the accused was prosecuted under Section 3 of the POCSO Act.
- Aggravated penetrative sexual assault: Section 5 of the POCSO Act lays down the cases in which penetrative sexual assault amounts to aggravated penetrative sexual assault. For example, penetrative sexual assaults on a child by a police officer within the vicinity of a police station, by armed forces within the limits of their area, by a public servant, by the staff of jails, hospitals or educational institutions are considered aggravated penetrative sexual assault and are punishable under Section 6 of the POCSO Act.
- Sexual assault: Section 7 of the POCSO Act defines sexual assault as, “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”. In Subhankar Sarkar v. State of West Bengal (2015), on medical examination of the victim, it was found that there was no evidence of penetrative sexual assault but scratch marks on the body of the victim were found which proved the use of force and thus, the accused was convicted under Section 8 and 12 of the POCSO Act.
- Aggravated sexual assault: Section 9 and 10 of the POCSO Act contain provisions regarding aggravated sexual assault on a child. In the case of Sofyan v. State (2017), the accused who was a plant operator in the swimming pool area was convicted by the Trial Court under Section 10 of the POCSO and Section 354 of the Indian Penal Code, 1860 for having sexually assaulted a girl of 8 years old. The facts of the case are that when the victim was wearing her swimming costume in the changing room area, the accused approached her and inserted his hand in her swimming costume and touched her with sexual intent. The Delhi High Court rejected the argument of the accused that he was implicated falsely and the conviction was upheld.
- Sexual harassment: Section 11 of the POCSO Act defines sexual harassment. It includes six cases which constitute sexual harassment of a child.
- First, if anyone utters any word or makes any sound or exhibits any object with sexual intent to a child.
- Second, if anyone makes a child exhibits his body so that it is seen by the offender or any other person.
- Third, if any person shows any child any form or media for pornographic purposes.
- Fourth, if anyone constantly watches or stalks a child directly or online.
- Fifth, if anyone threatens to use a real or fabricated depiction of any part of the body of the child or the involvement of the child in a sexual act through electronic, film or digital.
- Sixth, if anyone entices a child for pornographic purposes.
- Pornography: Section 13 of the POCSO Act states that anyone who uses a child for pornographic purposes by either representing the sexual organs of the child or using a child in real or simulated sexual acts or representing a child indecently or obscenely in programmes or advertisements on television or on internet, commits the offence under this section and is liable in accordance with Sections 14 and 15 of the POCSO Act. In the case of Fatima A.S. v. State of Kerala (2020), in a video on social media, a mother was seen being painted her naked body above the navel by her two minor children and she alleged that the motive of the video was to teach sex education to them. The Supreme Court of India observed in this case that, “in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that the mother will be the window of the child’s to the world”. Hence the same was covered under Section 13.
Punishment for offences covered in the POCSO Act, 2012
Punishment for the above offences is specified in the table:
|Name of the offence||Relevant provision of the POCSO Act||Punishment|
|Penetrative sexual assault on a child of 16 to 18 years of age||Section 4||Minimum imprisonment of 10 years which may extend to imprisonment for life plus fine|
|Penetrative sexual assault on a child below 16 years of age||Section 4||Minimum imprisonment of 20 years which may extend to imprisonment for the remainder of natural life plus fine|
|Aggravated penetrative sexual assault||Section 6||Minimum rigorous imprisonment of 20 years which may extend to imprisonment for the remainder of natural life plus fine or death|
|Sexual assault||Section 8||Imprisonment of 3 to 5 years plus fine|
|Aggravated sexual assault||Section 10||Imprisonment of 5 to 7 years plus fine|
|Sexual harassment||Section 12||Imprisonment which can extend upto 3 years plus a fine.|
|Use of a child for pornography||Section 14(1)||First conviction- imprisonment extending up to 5 years second or further convictions- imprisonment extending up to 7 years plus fine|
|Use of a child for pornography while committing an offence under Section 3||Section 14(2)||Minimum imprisonment of 10 years extending up to imprisonment for life plus fine|
|Use of a child for pornography while committing an offence under Section 5||Section 14(3)||Rigorous imprisonment for life plus fine|
|Use of a child for pornographic purposes while committing an offence under Section 7||Section 14(4)||Imprisonment of 6 to 8 years plus fine|
|Use of a child for pornographic purposes while committing an offence under Section 9.||Section 14(5)||Imprisonment of 8 to 10 years plus fine|
|Offence of storing pornographic material involving a child for commercial purposes||Section 15||Imprisonment extending upto 3 years or fine or both|
General principles of the POCSO Act, 2012
There are a few principles which are to be followed while the conduct of the trial under the POCSO Act. These are as follows:
- Right to be treated with dignity- Various provisions under the POCSO Act reflect that it is very crucial to treat a child with dignity and utmost compassion
- Right to life and survival- Right to life is a fundamental right provided by Article 21 of the Indian Constitution. It is essential that a child should be protected from the evils of society and could be brought up in a secure environment.
- Right against discrimination- This is also a crucial fundamental right and an additional duty under the Indian Constitution. A child should not be discriminated against on the basis of sex, religion, culture, etc and the investigative and court procedures should be just and fair.
- Right to preventive measures- Children being immature in their growing stages, should be well trained so that they become capable of preventing abuses against them thereby differentiating between what is right and what is wrong.
- Right to be informed- A child should be informed of the legal procedures that are being carried out for the conviction of the accused.
- Right to privacy- The main objective behind provisions like Section 23 is to protect the right to privacy of a child against whom any offence under the POCSO Act has been committed so as to maintain the confidentiality of the proceedings for the best interests of the child victim.
Abetment and attempt to child sexual abuse
Abetment of child sexual abuse
Section 16 of the POCSO Act defines the abetment of the offence. The following acts constitute abetment of offence under the POCSO Act:
- Instigating any person to commit that offence;
- Engaging in any conspiracy with one or more persons to commit any offence when any illegal act or omission takes place in consequence of that conspiracy;
- Aiding to commit that offence intentionally.
The punishment for the abetment of offence is specified under Section 17 of the POCSO Act, 2012 according to which a person who abets the commission of an offence and the offence is executed is to be punished with the punishment that has been provided for that offence under the POCSO Act.
Attempt to child sexual abuse
Section 18 enunciates that attempt to commit any offence under the POCSO Act, 2012 is also an offence inviting either of the two following punishments:
- Imprisonment provided for that offence for a term extending upto one-half of the imprisonment for life, with or without fine;
- Imprisonment provided for that offence for a term extending upto one-half of the longest term of imprisonment with or without fine.
Trial of offences under the POCSO Act, 2012
The POCSO Act specifies the provisions regarding the trial of a reported offence under Sections 33 to 38. Following are some glaring features provided under the POCSO Act regarding the conduct of trial:
Deposition of the victim
Section 33 specifies that the Special Court can take cognizance of the offence without the accused being committed to the trial. Section 36 mentions that the child should not be exposed to the accused at the time of giving evidence but this provision was not followed in the case of Vasudev v. The State of Karnataka (2018). The deposition sheet reflected that the victim was aggressively questioned and only when she had got emotional while narrating the incident, the accused was sent out. The Karnataka High Court dismissed the appeal of the accused who was convicted under Section 4 of the POCSO Act.
Furthermore, in the case of Nar Bahadur Subba v. State of Sikkim (2017), in the appeal before the Sikkim High Court, the Court observed that in the trial court deposition, the teachers of the victim have stated, ‘It is true that I am not well acquainted with the character of the victim’. To this, the Court noted that gauging the character of an 11-year-old girl is of no question and the cross-examination has violated provisions of Section 33 of the POCSO Act.
The time limit for disposal of cases
Section 35 of the POCSO Act stipulates the following timelines:
- For recording the evidence of the child: 30 days from the date of taking cognizance of the offence,
- For completing the trial: 1 year from the date of taking cognizance of the offence.
In the case of Shubham Vilas Tayade v. The State of Maharashtra (2018), the Special Court allowed the prosecution for recording evidence after 30 days of taking cognizance. This order was challenged by the accused, being violative of Section 35 of the POCSO Act. However, the high court agreed with the counterargument of the APP that as the accused did not challenge the application of the prosecution so he cannot challenge the order. Furthermore, it was observed that even otherwise, the Special Court can record evidence after 30 days and the only rider provided by Section 35 is that the reasons for the delay have to be recorded.
Medical and forensic evidence
Child sexual abuse is rarely diagnosed merely on the basis of physical examination. In many instances, the scars or bruises on the body of the victim are not found either because the cases are not immediately reported or the sexual abuse does not result in such injuries.
In the case of Pintu v. State of U.P. (2020), the conviction of the accused under Section 377 of the Indian Penal Code, 1860 and Section 6 of the POCSO Act were set aside and one of the reasons was that there was no mark of external injury around the anus of the victim and the Allahabad High Court opined that in case of a sexual assault on a boy of 7 years old by a person aged 23 years, there should have been some kind of external injury.
In the case of State (NCT of Delhi) v. Anil (2016), the Trial Court and the Delhi High Court acquitted the accused from the charges under POCSO Act due to the following points:
- The victim refused her internal medical examination when she was brought to the hospital.
- The medical reports reflected that her menstrual cycle was regular and hence, her claim that she had gotten pregnant due to a physical relationship with the accused had failed. Moreover, no proof of hospitalization was provided to her.
- There were no injuries on her body.
Admissibility of the medical history of the victim
The medical history of the victim is not given much importance by the Indian judiciary. In the case of Gangadhar Sethy v. State of Orissa (2015), the doctor did not find any injury marks on the body of the victim but stated that based on her medical history, here is the possibility of an attempt to sexual assault cannot be ruled out. On the other hand, the Orissa High Court paid no emphasis on the medical history and held that one cannot interpret what the victim meant by the term ‘assault’. It cannot be extended to imply that she was talking about penetrative sexual assault. Moreover, the medical or other evidence did not justify such a conclusion.
Duties of a medical examiner
It is essential that the medical examination of a child is conducted with utmost care and precaution. Rule 5(3) of the POCSO Rules, 2012 makes the provision that no medical facility or practitioner who renders emergency medical care to a child should ask for any kind of legal or other documentation before providing such care. Apart from this, Section 27 of the POCSO Act lays down certain laws regarding the conduct of medical examinations. These are as follows:
- The medical examination has to be conducted in accordance with Section 164A of the Criminal Procedure Code, 1973.
- A medical examination of a girl is to be conducted by a woman practitioner.
- It should be conducted in the presence of a person in whom the child has trust, for example, his/ her parents, otherwise in the presence of a woman nominated by the head of the medical institution.
Jurisdiction of the POCSO Act, 2012
Section 28 of the POCSO Act lays down the provision regarding the designation of special courts. It says that the special courts also have the jurisdiction to try offences under Section 67B of the Information Technology Act, 2000. Section 33 gives the power of a Court of Session to the special courts. Furthermore, Section 42A specifies that in case of any inconsistency, the provisions of the POCSO Act would override the provisions of any other law.
In the case of M. Kanna v. State (2018), there were discrepancies in the professional duty of the defence counsel who violated the right to a fair trial of the accused. The Madras High Court after making note of this fact remanded the case back to the trial court to provide the opportunity to the accused to cross-examine the witness. Also, the case was transferred from the trial court in which it was pending as it was presided over by the same judge.
The burden of proof under the POCSO Act, 2012
The objective behind the legislation is to ensure that the actual offenders are behind the bars. One approach that has been inoculated in the POCSO Act is to reduce the burden on the prosecution to prove certain things by introducing presumptions. Section 29 and 30 of the POCSO Act lay down the provision with respect to the burden of proof.
According to Section 29, the person who is prosecuted for the commission of the child sexual abuse offences is presumed to have committed or abetted or attempted to commit such offence. The main issue that arises while implementing this provision is that the nature of presumption that has to be applied is at the whim and fancy of the courts. Also, this provision has been challenged to be unconstitutional in a number of cases as it intervenes with the right to be presumed innocent, right against self-incrimination and the right to remain silent.
In Imran Shamim Khan v. State of Maharashtra (2019), a child told her grandmother that she was sexually abused and her medical examination confirmed this. However, her mother told her to ignore it. The statements of the child victim and her grandmother were recorded before the magistrate. The Bombay High Court made an important observation in this case by stating that, “even if a minor in a sexual assault case turns hostile under the POCSO Act, the onus is on the accused to establish the innocence. It is easy to say that the prosecution failed to prove the guilt of the accused. But in a case like this, the judicial approach has to see justice is imparted to the victim too”.
Further Section 30 provides the opportunity to the accused to prove his/ her innocence thereby making the presumption under Section 29 rebuttable. In the case of S. Suresh v. State of Tamil Nadu (2017), the accused was convicted under Section 6 of the POCSO Act and he had not rebutted the presumption of Section 29. Therefore, the Court observed that the rebuttable presumption also proves the guilt of the accused.
Significant judicial pronouncements
Bijoy v. The State of West Bengal (2017)
In this case, the accused was convicted of committing sexual assault and the Calcutta High Court laid down some directives which are to be followed by the investigating agencies to protect the dignity of the child victim. Following are some of the important directions:
- The police officer has to register the FIR as per Section 19 of the POCSO Act. Also, they have to inform the victim and their parents about their right to legal aid and representation.
- After the registration of the FIR, the child should be immediately sent for medical examination under Section 27 of the POCSO Act. In case the child falls within the definition of ‘child in need of care and protection; as defined under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, the child is to be forwarded to jurisdictional CWC.
- The identity of the victim is not to be disclosed in any media.
Further, the Court issued some guidelines regarding the compensation to the victims. Some important points are as follows:
- Compensation under Section 33(8) of the POCSO Act can be awarded by the Special Court at the interim stage.
- The compensation at the interim stage is independent of compensation to be paid by the convict upon conviction.
- The objective behind providing compensation is the relief and rehabilitation of the child victim and the reparation to the victim when the State has failed to protect the individual from crimes.
Vishnu Kumar v. State of Chhattisgarh (2017)
The Chhattisgarh High Court observed that Section 36 of the POCSO Act was not complied with in its letter and spirit while deciding the appeal of the accused. Therefore, some guidelines were issued by the Court to all the judicial officers of the state:
- The Presiding Officer must make the child witness as comfortable as possible. Along with the in-camera proceedings, the Presiding Officer should come down from the dais and engage in conversation with the child. He/ she can also offer toys and sweets to the child witness as the child must not feel that he/ she is in a majestic place.
- The strict rules of evidence can be ignored in order to search for the truth as justice should prevail.
- The Court should ensure the child’s safety and the statement of the child can be recorded after 3-4 hours or the next day if necessary as the prime motive should be to make the child comfortable and record the statements free of any influence.
- A child normally tells the truth but as they are dependent beings so their statements might get influenced by other people so it is the rule of prudence and caution that the statements of a child are to be scrutinized carefully.
Dinesh Kumar Maurya v. State of U.P. (2016)
This case throws light upon the intricacies of the medical evidence of the victim. The Allahabad High Court in this case set aside the conviction of the accused under Sections 3 and 4 of the POCSO Act as there were no marks of injury on the body of the victim who was 14 years of old but the victim had stated that there was forcible sexual intercourse. The Court made the following observations in this case:
- The injuries on the body are not always sine qua non for proving the offence of sexual assault but if the victim states that she has been helplessly raped then the marks of injury on the thighs, breasts, face, wrists or any other part of the body can immensely support her statements.
- The Courts should always take into consideration the fact that false charges of rape or sexual assault are common and the parents in order to take revenge convince their minor daughters to tell lies and concoct stories.
Sunderlal v. The State of M.P. and Ors. (2017)
This is an important judicial pronouncement where the father of the minor rape victim filed a petition under Article 226 of the Constitution of India, 1950 to get permission to terminate her pregnancy. The Madhya Pradesh High Court paid emphasis on the report according to which the length of the pregnancy was 20 weeks. Following directives were issued by the High Court in this regard:
- In the case of a minor, the consent of the petitioner is enough for the termination of pregnancy and it is not essential to obtain the consent of the minor victim.
- The right to termination of pregnancy flows from Article 21 of the Indian Constitution.
- A committee constituted of 3 registered medical practitioners has to form an opinion regarding the termination of pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971.
- If the Committee gives permission to terminate the pregnancy, then all the services and assistance are to be provided to the victim by the Respondent i.e. State.
- In case of termination of the pregnancy, the DNA sample of the foetus is to be kept in a sealed cover in accordance with the procedure.
Shortcomings of the POCSO Act, 2012
There are various loopholes in the procedure and implementation of the laws specified under the POCSO Act. Following are some criticisms:
- Problem with the application of the last seen theory: The last seen theory can lead to wrongful conviction in several cases and therefore, it cannot be applied without circumstantial evidence. It was held by the Supreme Court in the case of Anjan Kumar Sarma v. State of Assam (2017), that the last seen theory is a weak piece of evidence and cannot be relied upon single-handedly.
- Unprepared investigation machinery: The investigation machinery in the child sexual abuse cases is not well acquainted with the procedure which leads to a faulty investigation. For instance, in the case of the Addl. Sessions Judge, Hoingoli and Ors. v. Bhawat and Ors. (2017), the High Court of Bombay acquitted the alleged accused as the frock of the victim which was in the custody of police was unsealed and therefore, the semen stains on the frock could not be relied upon for the conviction.
- Silent on consensual sexual activities: In case of sexual intercourse with consent, one of which is minor, the partner who is not minor can be prosecuted under the POCSO Act as the consent of a minor is not considered relevant under this Act.
- False complaints by children are not punishable: Section 22 of the POCSO Act provides for the punishment to the persons who file a false complaint in order to humiliate, extort, threaten or defame another person. However, a child is exempted from any such punishment which is a loophole as many people take advantage of this exemption and misuse this provision.
- Pending cases: Although, the POCSO Act specifies that “the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence” under Section 35(2) but the number of pending cases is rising which is creating a huge problem in making the justice mechanism effective.
- Two-finger test violates privacy and dignity: Two-finger test is administered on the victims of sexual assault while conducting their medical examination. If the vagina of a girl is capable of allowing two fingers to move freely then it is inferred that the victim has been subjected to repeated sexual intercourse. This test is conducted on the minor girls against whom any offence under the POCSO Act is committed. Although the government banned this test in the year 2012, it is still administered. In the case of Lillu @ Rajesh and another v. State of Haryana (2013), it was observed that the administration of two-finger tests breaches the right to privacy, dignity and mental integrity of a woman and hence it is unconstitutional.
The POCSO Act, 2012 is exhaustive legislation which aims at covering all the aspects of child sexual abuse. Amendment has been made in the Act via the Protection of Children from Sexual Offences (Amendment) Act, 2019, with which the punishments for the offenecs have been made more stringent.
The need of the hour is to sensitize the public regarding child sexual abuse so that there is no reluctance in reporting these crimes. Moreover, the investigating agencies should be well trained and professionals such as medical practitioners involved in the stages of investigation and trial should be efficient so as to leave any scope of negligence on their part. The POCSO Act already makes the procedure child friendly and this approach should be followed by the judicial officers, magistrates, and police officers so that the child victims could repose trust in them.
- Oberoi, Geeta (2020) Violence Against Children, Thomson Reuters.
- Dr. Nimmi (2021) Offences Against Children Including Juvenile Justice and POCSO, Shreeram Law House.
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