ABSTRACT.
‘The Child is the beauty of God, present in the world.” Said by Mother Teresa.
Child; the beginner stage of human life. A initial phase where a person learn, explore, experience, grow and developed. Everyone in this world had going through from this phase. children are most essential asset of any society as they are represent upcoming generation. Thus, its nations responsibility to provide safe, secure and favorable environment for good growth of children, as they are future of country.
India, is also known for its largest population of child age-group. The leading biggest threat to Nation is facing about children is ‘child sexual abuse’. To solve this problem, special act was enacted named Protection of Child from Sexual Offences (POSCO)Act,2012, Recently, it completed 10 years of the enactment of this law. This study covers intersection between child abuse, law framework and its effectiveness in safeguarding the rights of children. It critically analysis the strengths and weaknesses of existing law. This research examines past ten years implementation, development, challenges as well as what and where it lacks?
KEYWORDS: child abuse, acquittal, sexual assault, sexual harassment,
INTRODUCTION.
“The true character of a society is revealed in how it treats its children.” – Nelson Mandela. A children play a huge role to create a healthy society. To protect children’s rights and safeguarding them from any abuse and harassment. Increasing Child sexual abuse, sexual harassment and child pornography are becoming stumbling blocks in Nation development.
Firstly, let’s understand what does meant by an ‘assault’.
An assault is the act of committing physical harm or unwanted physical contact upon a person which is usually a treat. “Sexual Assault” refers to sexual contact or behavior that occurs without explicit consent of the victim. It includes, forcing to touch private parts, someone force you to touch your own part in front of them, or sexual intercourse.
“Sexual Harassment” includes anyone who makes child uncomfortable, following and watching you, blackmails you by showing photos or video inappropriate way, etc.
Thus, to eradicate this issue and protect child sexual rights backing up by law, Ministry of Women and Child Development, India passed the guideline. After this Government and legislation formed, the rules are articulated in accordance to the law. Thus, Protection of Children from Sexual Offence (POSCO) Act,2012 came into effect on 14th November, 2012 on the occasion of ‘Children Day’. [Bal Diwas]
The purpose of enactment of this act, to promote and protect the best interest of the child. It ensures that the law operates in the manner that well – being of the child and are regarded as being paramount importance at every stage, in terms of his/her physical, emotional, intellectual and social development of child.
India, recently marked the tenth anniversary of the enactment of the POSCO act.
‘A Decade of POSCO’, an analysis showed that India is lacking on several fronts to deal with the cases influx under the POCSO. This act has had pros and cons in the last ten years. We will discuss what we achieved and what went wrong.[1]
RESEARCH METHODOLOGY.
The method study used in this particular research is a quantitative research method. This paper
is a majorly doctrinal study. It is based on the in-depth analysis of both the center topics of the
research, namely. POCSO ACT and its implementation in last 10 years. Various books related to child abuse, child sexual right were used to gather information for this research paper. Secondary Sources like articles, papers and references found both online and offline play a huge role in writing this paper. Actual cases have also been supported to analysis.
RESEARCH OBJECTIVE.
The objective of this research is to study child sexual abasement analyse and investigates, implementation of Protection of Children from Sexual Offences (POCSO) ACT,2012 On the completion of ten years since enactment.
REVIEW OF LITERATURE.
Various articles on the internet as secondary sources, the authors prior experiences as a
spectator to these cases, discussions with fellow mates and a basic self-analysis is the root the
writing of this doctrinal research paper.
HYPOTHESIS
After completing ten years of enactment of Protection of Children from Sexual Offences (POSCO) Act, 2012, legislation has failed to protect its children.
METHOD
The method of research is quantitative, descriptive as well as comparative, as it includes analysis of data, comparison between high and low of state.
Protection of children from Sexual Offence (POCSO)Act, 2012.
Clause (3) of Article 15 of Constitution of India, inter alia, empowers the State to make special provisions for the children. Further, Article 39, inter alia, provides that the state shall in particular directs its policy towards securing the tender age of children are not abused and their childhood.
The Government of India has acceded on the 11th December, 1992 to the convention on the rights of the child, adopted by General Assembly of the United Nations, which has prescribed a set of standard to be followed by all the state parties in securing the best interest of child.
The data collected by National Crime Records Bureau shows that there has been increase in the cases in cases of sexual offences against children. Moreover, sexual offences against children are not adequately addressed by the extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalized.
Therefore, an act is proposed to enacted named as Protection of Children from Sexual Offences (POCSO)Act, 2012. It is came into effect from 14th November, 2012.
It could be defined as, “An act to protect children from offences of sexual assaults, sexual harassment and pornography for establishment of special courts for trials of such offences and for matters connected therewith or incidental thereto.
POCSO act is regarded for safeguarding the interest and well-being of the child at every stage of the judicial process, incorporating child-friendly procedures of reporting, recording the evidences investigation and trials of offences.
POCSO Act includes sexual assaults such as:
- The inducement of a child to engage in any unlawful sexual activity.
- The exploitative use of children in prostitution or other unlawful sexual practices.
- The exploitative use of children in pornographic performances.
As per the census of 2011, there are more than 400 million children in India. It makes state more responsible to give attention on safety and security to children. POCSO act clearly defined child means any person under age of 18 years. The most important feature of this act it is Gender Neutral. Despite of gender, every child has right to complain about sexual offence happened with him.
This act also ensures victim identity must not disclose as it may affects mentally and emotionally on child’s health. It tries to maintain utmost secrecy while addressing sexual abuse of child.
Addition to this, POCSO Act also mandated to filed against any kind of sexual assault happened with child. There is no Time-limit for reporting on offence. Thus, it is mandatory reporting of sexual child abuse cases happen behind the close doors.
POSCO AMENDMENT ACT, 2019
POCSO Act is commenced and practices to prevent child sexual offences. However, it is observed that increasing number of recent past incidences of child sexual abusing cases demonstrating the inhumane mind-set of the abuser, who have been barbaric in their approach towards young victims. For make this act more effective and enhancing the punishment for the specific offences in order to deter abusers and ensure a dignified, the act was amended in 2019. The new amendment makes offences ‘Gender Neutral.’ It implies death penalty for aggravated sexual assault on children. it extended the definition of ‘Sexual Assault’ includes administration of hormones or any other chemical substances to children as they do not have sexual maturity for penetrative sexual assault.
‘Child pornography’ clearly stated punishable as it is visual depiction of child involves photograph, videos, digital, artificial generated images similar from an actual child. It specifies punishment for child pornography up to five years and fine.
The Bill increased tenure of imprisonment from 10 years to 20 years, up to death penalty for committing sexual assault against child age below 16 years. Government has sanction to increase in number of special courts for disposal of pending cases under POCSO.
EVALUATING THE IMPACT OF POSCO ACT: IN LAST 10 YEARS.
On 14th November, 2022, India marked tenth anniversary of enactment of the Protection of Children from Sexual offences. (POCSO) Act. To take overview of progress of this act, the World Bank’s program, Data Evidences for Justice Reforms (DE JURE) and the Justice, Access and Lowering Delays in India (JALDI) published an analysis report titled ‘A Decade of POCSO’. It analyzed more than 200,000 cases from the duration of 2012 to 2021 involves 486 districts of 28 states and Union Territories.
10 years is a rational time period to examine, how this legislation has been functioning and achieved so far. This enlighten work and needs to improve in Criminal Justice system regarding Child abuse. The reports showed that, the children are becoming easy prey because of their tender age, innocence and emotionally immature, physical vulnerabilities and inexperienced of social life. The studies of National Crime Report Bureau for the year 2016 indicates increase in the number of cases registered under POCSO Act from 44.7% in 2013 over 2012 and 178.6% in 2014 over 2013 and no decline in the number of cases thereafter. Along with other problem it mainly found increasing pendency of cases and a high rate of acquittals.[2]
- INCREASE IN PENDENCY RATES THROUGH YEARS:
The major problem faced while dealing with implementation of this ac is the higher rate of pendency rates. Pendency of cases are because of long judicial procedure, filing chargesheet, investigation, medical examination of victim in cases of sexual assault like rape. On the basis of report, analysis of more than 4 lacs cases, the trends of pending cases of child sexual abuse showed up rapidly growing. In 2014, it noted there was a sharp rise of 24,863 cases in the number of pending cases. Child basement are seen in girl child more than boy child. More than 94% pending cases with the courts by the end of 2020 while 2019 it is 88. 8%. Even though, the Ministry of Law and Justice added scheme to set up 1,023 fast track special court for eradicate this problem, high pendency rate continues to exist.
In march 2022, response to Lok Sabha, over 2.26 lakh cases were registered and pending under POCSO Act. The distribution of pendency of case, state-wise Uttar Pradesh has the highest pendency (67,153) and Tamil Nadu has lowest pendency rate (9,753).
- DISPOSAL OF CASES.
After reporting cases, the disposal of those cases where not occurred. The most of cases are acquittal or transferred to other courts and thus it results in delayed for disposing the case. With the decade long analysis, it was found that 43.44% of all trials in acquittals, whereas conviction rate is only 14%.
To prevent sexual offences of child and women, amendments were made in ‘the criminal law act” in 2018. The acquittals rates are three times more than that of conviction. Victim has to undergo from many days after filing case. Majority cases of child abuse is related to girl such as rape. the conviction rates of penetrative sexual assault and aggravated sexual assault are between 21% and 26% respectively.
There Are states like Chandigarh and West Bengal who took less than a year for conviction of these cases. The process of hearing case is goes through various activities like Preliminary hearing, framing, legal documentation, evidence of sexual offence, medical reports of victim, investigation and arguments. Thus, for disposing of cases under POCSO Act and give justice to appellant it must have to take strictly step in improvement of higher rate of acquittals. [3]
ISSUES AND CHALLEGES OF POCSO ACT
The POCSO ACT, has faced so many obstacles while implementing it in the society. Since a child is mentally, emotionally as well as physically assaulted it quite difficult to understand him and raise a voice against accused.
There are mainly three kinds of issues observed in past last ten years.
- No change in investigation.
- Age Determination.
- Investigation Period.
In India, there are old and traditional way of investigation is still followed in many states. The investigation which is guided by CrPC, consist of a medical officer and forensic science expert with police sub inspector. Cases like rape, an act provide women sub inspector is appointed to investigation as well as reporting statement of female child. But due to less number of women inspector it couldn’t conducted efficiently. In 2015, Ministry of Home Affairs proposed a scheme called Investigation Unit Crime against Women (IUCAW). According to this, 15 police women officers are allocated in police station in each district. Unfortunately, it not properly implemented that resulted, to failure in giving justice to child victim.
Another reason, whiling investigating and recording statement, audio-visual means are used. But in the case of shafhi Mohammad vs. The State of Himachal Pradesh (2018), offences by using Audio – visual means are considered as not submissible. There is no infrastructure availability to store of audiovisual evidences.
Medical examination which plays vital role in sexual assault crime. Under CrPC, it conducted examine victims. Some banned techniques like Two figure test, also lacks in proper examination of victim. That affects on cases and to protect child.
According to Juvenile Justice Act, Age-determination is carried out. To find out age of victim, investigating officers used documents like school recording, Birth Certificate, withdrawal certificate is used. When it medically determined age has wider scope. We cannot find exact age of the person. so, it becomes easy to prove a minor as a major person. Therefore, case cannot be filed under POCSO Act.
Investigation period of sexual offences like rape under POCSO ACT, is of 90 days. It has been observed that investing officers not work properly and leads to delayed in filing chargesheet. Once Ministry of Home Affairs, cases like these were supervised by Crime and Criminal Tracking Network and System. (CCTNS). While monitoring this pressure on investigation is made and the investigation was not conducted properly. The information, reporting, quality of investigation decreased. On the other side, it is delayed to filing of chargesheet within 60 days from offence, an accuser granted bail. An Offencer cannot be punishable and one more reason of justice to victim not be delivered.
It has been observed the most child abuse were happened with girl child. From minor age of 5 to till 17, most of times she undergoes through sexual harassment. 55% cases out of total cases of POCSO Act, were registered under child rape and among these 99% were of girl child. Many of cases are still not filed because of fear and social stigma. To feel girl child friendly while reporting, an act provides Women Sub- Inspector for securing the information of victim. But practically it is not possible because of very low number of women-constable in India.
On the other hand, it also seen that 25% males are faced penetrative sexual assault in their childhood. Approximately, 5.8 crore male child are sexually abused, every year. Despite of lack of knowledge, reasons like feeling of shame in society, fear, depression, many cases were still not yet reported.
The most important issue of POCSO Act, that unawareness of sexual assault in children. There are so less amount of school and public places which aware about child’s sexual right. Children not have adequate knowledge about they are physically and mentally misused. Unless child not identify and know something happening wrong with him, it is hard to stand against the accused.
According to one report, it shows that A accuser is relatives or Neighbors or well related person. So, they can easily take advantage of child. Here, child may be afraid to speak or take actions against accuser about offence and will become resulted into non reported.
Moreover, judicial system also lacks to safeguard the victim. Issues like inadequate investigation, age-determination, delay in filing of chargesheet, medical examination are also contributed. In the cases of rape, there is need of forensic evidence related to sexual intercourse. It takes longer time to complete whole process and complexity case can be affected in delivering justice to the Victim. [4]
LANDMARK JUDGEMENTS UNDER POCSO ACT.
In this decade of time period, there are some cases are renowned as landmark judgements under POCSO Act, 2012.
- JARNAIL SINGH VS. STATE OF HARYANA (2013)
The appellant, the daughter of Savitri Devi was kidnapped and raped while she was sleeping by the accused. The Supreme Court observed that procedure used to age-determination of child have been provided by Juvenile Justice (care and protection of children) Rules, 2007 and come under POCSO Act. Thus, by the provision of Rule 12 of Juvenile Justice act, detailed age determination process of children in conflict with law should be applied to age determination of victim. Thus, the court convicted the appellant.
- BALAJI SARJERAO KAMBLE VS. STATE OF MAHARASHTRA (2017)
The victim of this case is 6 to 8 years girl who has been allegedly raped. Because of young age, she not have keen sense of time, when the sexual assault happened. In the landmark case of Balaji Sarjerao Kamble v. State of Maharashtra (2017), The Bombay High Court observed and stated that ‘merely because the date of the crime is not given by the victim, her evidence cannot be disregarded.’ Thus, appellant is found punishable under Section 4 and 8 of POCSO Act, 2012 and Section 356 of the IPC, that made accused punishable for imprisonment of 7 years and pay the fine of Rs. 5,000.
- ATTORNORY GENERAL FOR INDIA VS SATISH AND ANOTHER. (2021)
[SKIN TO SKIN CONTACT CASE]
In this case, accused named satish ragde, took the appellant child girl in his house, with the excuse of giving her guava. Then, he groped her breast and allegedly forced to her clothes. The Bombay high court, Nagpur bench, the judgement of Justice Pushpa Ganediwala, stated that there is skin to skin contact established while groping of minor’s breast. Thus, court convicted victim punishable for three years under Section 354, 363, 342 of IPC and Section 8 of the POCSO act.
This judgement highly opposed all over country. An appeal was filed by National Commission for Women, Attorney General for the India and the State of Maharashtra in front of Supreme Court. The bench consist of Justice UU Lalit, Justice Bela M. Trivedi and Justice S. Ravindra Bhatt gave judgement, for validating offence is a sexual assault , the important essential factor is having an “Sexual Intention” while committing the crime.
As Section 7 of POCSO Act defined what ‘sexual assault’ means, yet it not necessary to have direct skin to skin contact to state it “sexual assault.” this is very narrow interpretation of section 7 said by judge.
Thus, accused is held guilty and are punishable under Section of 7 of “Sexual Assault”, as he has ‘sexual intension” and not skin-to-skin contact.
SUGGESTION
Even after completing 10 years of enactment of POCSO act. It lacked in many ways of its implementation. To protect child from sexual assault, sexual harassment and any another child abasement everyone should take responsibility of reporting the case. Legislation seems to be inefficient about this act. There are ways forward which can help to implementation of POCSO act in higher effective way.
- ADEQUATE RESOURCES: All the producers like filing case, reporting, investigation, collecting statements, evidences should be done effectively. If a sexual abuse happened with a girl child it is necessary to feel her secure, safe to for investigating. All these processes should be Children Friendly. Government should encourage to NGO’S, Social Welfare Groups, Children welfare committees. Etc. the first thing that should be provide a good environment to victim as he/she had gone through sexual abuse. Thus, availability of adequate resources help to conduct investigation a timely and efficient manner.
- SPECIAL COURTS FOR POCSO CASES: According to POCSO Act Amendment, the provision in increase the number of special court for child sexual abuse cases. However, it is insufficient or ineffective. For these cases, there is need to established eCourts, and effective mechanism which is dedicated to solve children related cases only. From this special court, it will speed up the trial process and will relief for victim and its family.
- TIMELY MEDICAL EXAMINATION: In the cases of sexual intercourse, rape, medical examination is required. the accused and the victim both forensic reports are necessary to prove sexual assault. Thus, there should be dedicated medical professionals who specially appointed to this examination. One can also take care that victim may or may not be ready to fulfil medical producer, here their physical and mental health should give priority.
- PUBLIC AWARENESS: the major reason for failure of POCSO Act is unawareness about child’s sexual right. To make awareness, every school, children park, camps should organized and give knowledge about sexual rights, child sexual abuse, sexual harassment, etc. every child should aware about “GOOD TOUCH” and “BAD TOUCH”. Children should be trained in such a way that if they are facing any kind of assault, they find help and raised their voice again offence. Social Organizations such as Children welfare committee, NGO’S, should arrange program, project and through it, increase awareness. With the that children should also know where and how will find help. Thus, by creating awareness, it will help to reduce child sexual abuse in the society.
- INTERAGENCY COORDINATION: coordination between different agencies such as police, Child Welfare Committee, Medical Professional, Investigators, Tribunals should be carried out properly. The government had established a special helpline for children where they can register their complain without any hesitation. The government should also encourage to NGO’S such as Muskan, Aks foundation, which aiming to child protection and their rights.
- MONITORING AND REVIEW; The government should establish a system of monitoring and review regarding the count of POCSO act. A system which supervised all functioning of filing, investigating, tribunals etc. due to this it ensures the protection of rights of the child and victim will get justice under POCSO Act,2012.
CONCLUSION
The decade completed; 10 years since The Protection of Children from Sexual Offences Act, 2012, the proper implementation of the act has not taken place. The first and most important task of this legislation was to expedite the resolution of cases involving sexual offenses against children; it was mandated that a case be resolved within a year of the offense’s cognizance, but in most Indian states, the time taken to resolve the cases is more than double of what is mandated under the act. There’s no doubt that there has been considerable improvement, but we as a society should strive for better. The pendency of cases is a problem that arises due to the huge population of India, so it should be ensured that more special courts are set up, more judges are appointed. Also, the courts of India and the government should take relevant measures to avoid misuse of the law, as it has been noted that many innocent people are being charged under this act even when there was a consensual relationship between the couple. If an innocent is made to spend even a day in jail, it is a failure not only for the authorities, but for the society at the large. As per my opinion, Child Sexual Assault is one of major problems of country facing. It not only destroyed child by physically as he/she also mentally weaken, depressed and could resulted into lifetime disfunction. Most of times, the accuser is well known person or a relative, so child couldn’t express about his sexual harassment with their own parent. It leads to long period of time to overcome it. Here we try to understand what child is trying to communicate with us. Despite of this , awareness about GOOD TOUCH and BAD TOUCH helps them to self-examine themselves and more effectively to raise voice against voice of any misuse of their sexual right. Lastly, today’s children are future tomorrow, it is one’s responsibility to provide them good environment for growing and nurturing. Protecting from threats, offences and empower them for upcoming challenges.
Manasi Saraikar, BA.LLB. (2nd Year)
ILS LAW COLLEGE, PUNE.
[1] Protection of children from Sexual Offences, Act,2012 , Long Title ,https://www.indiacode.nic.in/ , (last visited on 10th June, 2023)
[2] 10 years of POCSO: an analysis of India’s landmark child abuse law by Esha Roy, published on November 18,2022 in The Indian express.
[3] A Decade Of POCSO: Developments, Challenges And Insights. https://vidhilegalpolicy.in/research/a-decade-of-pocso-developments-challenges-and-insights-from-judicial-data/ , (Last Visited on 12th June 2023)
[4] Issues and Challenges of POSCO ACT, Execution Of Chemical Castration As Punishment In India , https://www.legalserviceindia.com/legal/article-7754-issues-and-challenges-in-pocso-act-execution-of-chemical-castration-as-punishment-in-india.html , (Last Visited On 13th June 2023)
Nice information manasi….its very useful for all….