The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a comprehensive legislation enacted to safeguard the interests of children against sexual abuse in India. The POCSO Act defines a child as any person under the age of 18 years[1] and penalizes sexual offences against children. The Act is gender-neutral, protecting children of all genders from sexual abuse. The POCSO Act was necessitated by India’s commitment as a signatory to the UN Convention on the Rights of the Child, to protect children from all forms of sexual abuse and exploitation.[2]
The POCSO Act is a special law that deals specifically with child sexual abuse, unlike the Indian Penal Code which criminalizes sexual offences in general. The definition of different sexual offences under the POCSO Act is extensive compared to the IPC.[3] The procedures for recording evidence and investigation are child-friendly.[4] Special Courts are mandated under the Act for speedy trials.[5] The Act casts the burden of proof on the accused, not the child victim.[6] Thus, the POCSO Act aims to provide robust legal protection to children against sexual crimes.
However, despite the Act’s extensive provisions, the implementation remains inadequate. [7] Problems like low conviction rates, poor awareness, and delays in investigation continue. Amendments made in 2019 for enhanced punishments [8] have not significantly reduced child sexual crimes as per statistics.[9] A critical analysis of the POCSO Act from legal and sociological perspectives is required to examine its efficacy and understand the persisting challenges in fighting child sexual abuse in India despite tough laws.
Evolution of the POCSO Act
The POCSO Act was enacted in 2012 in response to the growing number of child sexual abuse cases and the absence of stringent legal provisions.[10] The National Crime Records Bureau reported a steady increase in crimes against children from 22,500 cases in 2008 to 33,000 cases in 2011.[11] Further, the study by the Ministry of Women and Child Development in 2007 found that over 50% of children surveyed had faced some form of sexual abuse.[12]
The acute need for a comprehensive law protecting children against sexual violence was recognized in Sakshi v. Union of India.[13] The Supreme Court directed the enactment of legal provisions for adults using children for sexual gratification. India’s commitment as a signatory to the UN Convention on the Rights of the Child also required suitable legislation to be passed.[14] The POCSO Bill was introduced in 2010 and received Presidential assent in 2012.
Key Features and Ambit of the POCSO Act
The POCSO Act is appreciable for recognizing different types of sexual offences against children beyond the scope of rape under the IPC. The Act defines and penalizes penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic purposes.[15] Further, the procedures under the Act are child-friendly. The police official receiving the complaint must inform the child and parents about their right to legal assistance.[16] The statement of the child must be recorded at home or a place of their choice.[17] Medical examination can be avoided if the magistrate feels the statement is sufficient.[18]
The POCSO Act makes the trials speedy by mandating the completion within one year.[19] Special Courts are designated exclusively for trials under the Act.[20] The identity of the child victim is confidential. [21] Strict punishment ranging from minimum 3 years to life imprisonment is stipulated for the offences. [22] The Act takes precedence over the IPC for sexual offences against children.[23] The child-friendly procedures, speedy trial provisions, and strict punishments under the POCSO Act make it a powerful legislation.
Critical Issues in the Implementation of the POCSO Act
Despite the extensive legal framework, the POCSO Act faces challenges in its application. The National Crime Records Bureau reported a whopping 427% increase in cases registered under the POCSO Act from 5,611 cases in 2012 to 29,606 cases in 2016.[24] The number of child rape cases doubled from 8,934 in 2014 to 19,765 in 2018.[25] While increased reporting is positive, the high incidence indicates the continued prevalence.
The conviction rate under the POCSO Act remains as low as 28% owing to lack of forensic evidence and hostile witnesses.[26] Delay in collecting evidence and medical examination hampers successful prosecution.[27] Shortage of prosecutors, crowded courts, social stigma lead families to turn hostile and weaken cases.[28] Lack of awareness about the Act among police, doctors, lawyers, victims impedes justice.[29] These impediments in the implementation reduce the Act’s effectiveness.
Judicial Interpretation of the POCSO Act
Courts have played a proactive role in interpreting the provisions of the POCSO Act to advance the protection of children. In Alakh Alok Srivastava v. Union of India, the Supreme Court issued guidelines for setting up Special Courts under the Act in each district for expeditious trials.[30]
Courts have consistently upheld the strict punishments under the POCSO Act. In State v Jacob, the Kerala High Court sentenced the accused to life imprisonment for the digital penetration of a 10-year old girl constituting aggravated penetrative sexual assault under the Act.[31] In another case, the death penalty awarded to a 36-year old accused for the brutal rape and murder of a 7-year old girl was confirmed by the Madras High Court.[32]
At the same time, the judiciary has intervened where the provisions were too wide. In Dr. Saji v State of Kerala, the Kerala High Court held that teen consensual sexual relations between minors cannot be penalized under the POCSO Act.[33] Such progressive interpretation by Courts has yielded balance in the law’s application.
Sociological Impact of the POCSO Act
The POCSO Act has significantly influenced the sociological understanding of child sexual abuse in India. The Act has brought awareness that children are capable of giving credible testimony regarding the sexual offence committed on them.[34]
The child-friendly procedures are empowering victims to come forward and register complaints. The number of cases reported annually has consistently increased since the Act’s passage.[35] Families are more open to seeking legal recourse for their children rather than hiding cases to avoid social stigma. The shift in attitudes is a major social impact.
However, lack of gender neutrality under the Act has drawn criticism. [36] The social mindset that males cannot be victims of sexual abuse remains unaddressed. Male child abuse is underreported as the Act does not affirmatively recognize them as potential victims. [37] Further, the exclusion of consensual sexual relations between children aged 16-18 years from the Act’s purview is debated.[38] The Act’s sociological impact in redefining boundaries requires more progressive evolution.
Recommendations for Reform
While the POCSO Act is a milestone legislation, certain recommendations can make it more efficacious:
- Nationwide awareness programs on the POCSO Act will encourage reporting and educate investigating agencies for better implementation.[39]
- Special Police Units for POCSO crimes in each district, with counsellors and child welfare experts will facilitate sensitive handling of cases.[40]
- Fast Track Special Courts under the Act must be set up in each district for time-bound trials and increased conviction rates.[41]
- Provisions on rehabilitation of victims through education, vocational training must be incorporated.[42]
- The Act should be amended to cover consensual sexual relations between children aged 16-18 years and recognize male child abuse victims. [43]
- Timelines must be defined for medical examination and collection of forensic evidence after complaint filing for better results.[44]
Conclusion
The POCSO Act is a pioneering legislation that has redefined India’s legal response to child sexual abuse by recognizing various sexual offences against children. However, obstacles in its implementation have resulted in low conviction rates. Lack of monitoring mechanisms and delays in evidence collection hamper the law’s efficacy. Amendments, nationwide awareness drives, appointment of special police units, and time-bound trials are vital to activate the Act’s objectives. The positive social impact of the POCSO Act in increasing reporting must be channeled through stronger legal processes to create safe childhoods for every child in India.
References
[1] The Protection of Children from Sexual Offences Act, No. 32 of 2012, § 2(d), Acts of Parliament, 2012 (India).
[2] United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
[3] The Protection of Children from Sexual Offences Act, No. 32 of 2012, Acts of Parliament, 2012 (India).
[4] Id. §§ 24, 26, 27.
[5] Id. § 35.
[6] Id. § 29.
[7] Kailash Satyarthi Children’s Foundation, Status of POCSO Cases in India 9 (2021).
[8] The Protection of Children from Sexual Offences (Amendment) Act, No. 25 of 2019, Acts of Parliament, 2019 (India).
[9] Supra note 7.
[10] Sakshi v. Union of India, (2004) 5 SCC 518.
[11] National Crime Records Bureau, Crime in India (2011).
[12] Ministry of Women and Child Development, India Child Abuse Report 1 (2007).
[13] Supra note 10.
[14] Supra note 2.
[15] Supra note 3, §§ 3-13.
[16] Id. § 19(5).
[17] Id. § 24(1).
[18] Id. § 27(2).
[19] Id. § 35(2).
[20] Id. § 28.
[21] Id. § 33(7).
[22] Id. §§ 4-7.
[23] Id. § 42A.
[24] Supra note 2, at 95.
[25] Id.
[26] Mahesh Langa, Low conviction rate under POCSO Act: MP 53%, Rajasthan 36%, Bhopal 18%, Hindustan Times (Aug. 9, 2020).
[27] RK Vij, India’s Tough Sexual Harassment Law Falls Short on Convictions, The Straits Times (Mar. 9, 2020).
[28] Supra note 7, at 6.
[29] Supra note 26.
[30] Alakh Alok Srivastava v. Union of India, (2018) 7 SCC 1.
[31] State v. Jacob, 2020 SCC OnLine Ker 588.
[32] Mahalakshmi v. State by Inspector of Police, (2021) 2 MLJ (Crl) 672.
[33] Dr. Saji v. State of Kerala, 2021 SCC OnLine Ker 2551.
[34] Supra note 7, at 8.
[35] Supra note 9.
[36] Vasudha Pandey, In India, Sexual Assault Victims Still Face Barriers to Justice, The Diplomat (Jan. 10, 2022).
[37] Mohammed Wajihuddin, The Invisible Victims, The Indian Express (July 1, 2018).
[38] Vijayta Lalwani, Is India’s Anti-Rape Law Beyond Reproach?, The Wire (Dec. 29, 2021).
[39] Supra note 26.
[40] Supra note 7, at 9.
[41] Supra note 30.
[42] Kirti Abbi, Rights of Victims under the POCSO Act, 2 IJLLJS 25, 29 (2016).
[43] Supra note 38. [44] Supra note 7, at 9.