POCSO
Act – Providing Child-Friendly Judicial Process
One of
the issues marring this vision for the country’s future generations is the evil
of child sexual abuse. Statistics released by the National Crime Records Bureau
reveal that there has been a steady increase in sexual crimes against children.
According to a study conducted by the Ministry of Women and Child Development
in 2007, over half of the children surveyed reported having faced some form of
sexual abuse, with their suffering exacerbated by the lack of specific
legislation to provide remedies for these crimes. While rape is considered a
serious offence under the Indian Penal Code, the law was deficient in
recognising and punishing other sexual offences, such as sexual harassment,
stalking, and child pornography, for which prosecutors had to rely on imprecise
provisions such as “outraging the modesty of a woman”. The Ministry of Women
and Child Development, recognising that the problem of child sexual abuse needs
to be addressed through less ambiguous and more stringent legal provisions,
championed the introduction of a specific law to address this offence. The
POCSO Act was therefore formulated in order to effectively address the heinous
crimes of sexual abuse and sexual exploitation of children. The Protection of
Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the
Gazette of India on 20th June,
2012. The Act is due to come into force shortly, along with the rules being
framed under the Act.
The Act defines a child as any person below eighteen
years of age, and regards
the best interests and well being of the child as being of paramount importance
at every stage, to ensure the healthy physical, emotional, intellectual and
social development of the child. It defines different forms of sexual abuse,
including penetrative and non-penetrative assault, as well as sexual harassment
and pornography, and deems a sexual assault to be “aggravated” under certain
circumstances, such as when the abused child is mentally ill or when the abuse
is committed by a person in a position of trust or authority vis-a-vis the
child, like a family member, police officer, teacher, or doctor. People who
traffick children for sexual purposes are also punishable under the provisions
relating to abetment in the Act. The Act prescribes stringent punishment graded
as per the gravity of the offence, with a maximum term of rigorous imprisonment
for life, and fine.
In keeping with the best international child protection
standards, the Act also provides for mandatory reporting of sexual offences.
This casts a legal duty upon a person who has knowledge that a child has been
sexually abused to report the offence; if he fails to do so, he may be punished
with six months’ imprisonment and/ or a fine. Thus, a teacher who is aware that
one of her students has been sexually abused by a colleague is legally obliged
to bring the matter to the attention of the authorities. The Act, on the other
hand, also prescribes punishment for a person, if he provides false information
with the intention to defame any person, including the child.
The
Act also casts the police in the role of child protectors during the
investigative process. Thus, the police personnel receiving a report of sexual
abuse of a child are given the responsibility of making urgent arrangements for
the care and protection of the child, such as obtaining emergency medical
treatment for the child and placing the child in a shelter home, should the
need arise. The police are also required to bring the matter to the attention
of the Child Welfare Committee (CWC) within 24 hours of receiving the report,
so the CWC may then proceed where required to make further arrangements for the
safety and security of the child.
The
Act also makes provisions for the medical examination of the child designed to
cause as little distress as possible. The examination is to be carried out in
the presence of the parent or other person whom the child trusts, and in the
case of a female child, by a female doctor.
The
Act further makes provisions for avoiding the re-victimisation of the child at
the hands of the judicial system. It provides for special courts that conduct
the trial in-camera and without revealing the identity of the child, in a manner
that is as child-friendly as possible. Hence, the child may have a parent or
other trusted person present at the time of testifying and can call for
assistance from an interpreter, special educator, or other professional while
giving evidence; further, the child is not to be called repeatedly to testify
in court and may testify through video-link rather than in the intimidating
environs of a courtroom. Above all, the Act stipulates that a case of child
sexual abuse must be disposed of within one year from the date the offence is
reported.
Another
important provision in the Act is that it provides for the Special Court
The
Act is a welcome piece of legislation, in that it recognises almost every known
form of sexual abuse against children as punishable offences, leaving little
room for ambiguity in its interpretation. Further, by providing for a
child-friendly judicial process, the Act encourages children who have been
victims of sexual abuse to bring their offender to book and seek redress for
their suffering, as well as to obtain assistance in overcoming their
trauma. It makes the
different agencies of the State, such as the police, judiciary and child
protection machinery, collaborators in securing justice for a sexually abused
child; working together, they can ensure that the child is given an opportunity
to obtain justice for the harm suffered, and begin the process of rebuilding
the child’s life and future.
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