Author: Harsh Srivastava, II year of B.A.,LL.B. from University of Petroleum and Energy Studies
Introduction
Children are intended to be protected from all forms of sexual abuse by the Protection of Children from Sexual Offences Act, 2012 (the "POCSO Act, 2012"). Even though the United Nations ratified the Convention on the Rights of the Child in 1989, India did not pass any legislation to address crimes against children until 2012. It stipulates severe penalties for crimes against children, ranging from the death penalty in cases of extreme penetrative sexual assault to a minimum sentence of 20 years in jail.
Neccesity of POSCO Act
India has one of the greatest populations of children in the world; according to census data from 2011, there are 472 million children in India who are under the age of eighteen. According to a broad interpretation of Article 21 of the Indian Constitution, citizens are guaranteed the state's protection of children, and it is also required given that India is a party to the UN Convention on the Rights of the Child. The Goa Children's Act, 2003 was the sole particular law addressing child abuse prior to the POCSO Act's enactment.
The following sections of the Indian Penal Code dealt with child sexual abuse:
I.P.C. (1860) 375- Rape
I.P.C. (1860) 354- Outraging the modesty of a woman
I.P.C. (1860) 377- Unnatural offences
The IPC, however, was not able to properly safeguard the child due to a number of flaws, including:
Male victims or anybody else are not shielded from sexual acts of penetration other than "conventional" peno-vaginal intercourse per IPC 375.
There is no statutory definition of "modesty" in IPC 354. It is a compoundable offence that has a light penalty. Additionally, it does not safeguard a boy's "modesty."
The phrase "unnatural offences" is not defined in IPC 377. It is not intended to criminalise the sexual exploitation of children and only applies to victims who have been penetrated by their attacker's sex act.
As a result, it was necessary to change the law with a focus on a child protection legislation.
POCSO Act's scope
The POCSO Act, 2012 is not the only piece of legislation in India that addresses issues of child sexual abuse. The provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap, encompass the process, and describe the offences, hence the POCSO Act cannot be considered a comprehensive code in and of itself.
Importance of the Act
The POCSO Act, 2012 was passed at a time when reports of child sexual abuse were on the rise. It outlines the process for putting these laws into effect and includes rules for protecting children from sexual assault and pornography.
Minors's safety is never guaranteed anyplace because incidents of sexual abuse against children happen at schools, churches, parks, hostels, and other public areas. With such new threats, it was important to pass separate legislation that might offer a solid framework for reducing the frequency of such offences and punishing those who commit them.
The Act has been crucial in establishing a strong judicial system for those who have been sexually abused and in highlighting the importance of children's rights and protection .
Features of the POCSO Act, 2012
Identity of the victim must be kept confidential under Section 23 of the POCSO Act, which also imposes a requirement to do so unless the Special Court has authorised disclosure. No reports in the medium may reveal a child's identify, including his name, residence, portrait, family information, school, neighbourhood, or any other details that could reveal the child's identity, according to Section 23(2). The Calcutta High Court repeated the law created under Section 23 and ruled that anyone, including a police officer, shall be prosecuted if they commit such a breach in the landmark case of Bijoy Guddu Das v. The State of West Bengal (2017).
Mandatory reporting of child abuse cases: Because of the stigma associated with these crimes, elders try to conceal sexual abuse cases that occur behind closed doors. Therefore, Sections 19 to 22 of the POCSO Act have made reporting of these instances by third parties who have knowledge of or suspicion of such offences necessary for the proper enforcement of the POCSO Act. These regulations were created with the presumption that because children are defenceless and helpless, society has a responsibility to safeguard their interests.
The last seen theory: In cases involving child sexual abuse, the last seen theory is used. In accordance with this hypothesis, when there is a very small amount of time between when someone was last seen alive and when they were last seen with the victim, it is assumed that they are the ones who committed the crime. It was noted in the 2012 case of Shyamal Ghosh v. State of West Bengal that it is unreasonable for the courts to use the last seen approach when there is a significant time lapse.
Investigation and trial procedures that are child-friendly are outlined in Sections 24, 26, and 33 of the POCSO Act. These sections outline the investigation and trial process that has been designed with the requirements of a child in mind.
The question of whether Section 155(2) of the Code of Criminal Procedure will apply to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offenses Act, 2012 was recently decided inconclusively by a two-judge Supreme Court panel (POCSO).
A police officer must have a magistrate's approval before conducting an investigation under Section 155(2) of the Criminal Procedure Code. The offence of disclosing the identify of the victim of a sexual offence is covered by Section 23 of the POCSO.
What problems arise when children are sexually abused?
Child sexual abuse is a multifaceted issue that has an adverse effect on children's physical safety, mental health, well-being, and behavioural characteristics.
Amplification Resulting from digital technologies: The exploitation and abuse of children has increased as a result of mobile and digital technology. Online bullying, harassment, and child pornography are just a few of the newer types of child abuse that have arisen.
Effectiveness of the Law: The Protection of Children against Sexual Offences Act of 2012 (POCSO Act) was passed by the Government of India, although it has not succeeded in preventing sexual abuse of children.
There are several explanations for this. Low Conviction Rate: If one averages the last five years, the rate of convictions under the POCSO statute is just about 32%, and 90% of the cases are still pending.
Despite the POCSO Act's explicit requirement that the trial and conviction process be completed in one year, it took 16 months for the primary accused in the Kathua Rape case to be found guilty.
Unfriendly to Children: Difficulties with determining the child's age. Particularly rules that prioritise biological age rather than mental age.
Reference
1 . https://vikaspedia.in/education/policies-and-schemes/protection-of-children-from-sexual-offences-act
2 .POCSO Act, 2012, Section 3
3 . Section 5.
4. Section 7
5. POCSO Act, Section 19(6)