Judging A Decade Of POCSO

Why in News?

• November 14, 2022 marked the completion of a decade of enactment Indian legislation of Protection of Children from Sexual Offences (POCSO) Act, 2012.
• The article reflects upon how far this legislation has been able to meet its objectives and suggests manner by which criminal justice system’s response to child sexual abuse can be improved.

 

About POCSO Act

• Formulation: It is the first comprehensive law in India dealing specifically with sexual abuse of children, enacted in 2012 and is administered by the Ministry of Women and Child Development (MoWCD).
• Objectives: The Act was designed to protect children aged less than 18 from sexual assault, sexual harassment and pornography offences and provide for establishment of Special Courts for trial of such offences and related matters and incidents.

 

Salient features of the Act

• Gender-neutral law: The POCSO Act establishes a gender-neutral tone for the legal framework available to child sexual abuse victims by defining a child as “any person” under the age of 18.
• No time limit for reporting abuse: A victim can report an offence at any time, even a number of years after the abuse has been committed.
• Mandatory reporting: The Act also makes it the legal duty of a person aware of the offence to report the sexual abuse. In case s/he fails to do so, the person can be punished with six months’ imprisonment or a fine.
• Safeguards to victims: The Act, in addition to providing punishment for sexual offences against children, gave certain safeguards to make children's interaction with the criminal justice system 'child-friendly'.
  • For instance, the Act specifically laid down that the child victim should not see the accused at the time of testifying and that the trial be held in camera.
  • Further, it specifically provided that the evidence of a child shall be recorded within a period of 30 days of the Special Court taking cognisance of the offence and reasons for delay, if any, be recorded.
  • It also required that the Special Court complete the trial, as far as possible, within a period of one year from the date of cognisance.

 

Amendment to the Act

• The Act was amended for the first time in 2019 for enhancing the punishments for specific offences in order to deter abusers and ensure a dignified childhood.
• This amendment enhanced the punishment to include death penalty for aggravated penetrative sexual assault of the child.
• It also provides for levy of fines and imprisonment up to 20 years to curb child pornography.
• The new definition of child pornography reads, “Any visual depiction of sexually explicit conduct involving a child which include photographs, video, digital or computer-generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict a child.”

 

POCSO Rules 2020

• Mandatory police verification: Any institution housing children or coming in regular contact is required to conduct a periodic police verification and background check of every employee.
• Sensitization: Such an institution must impart regular training to sensitise its employees on child safety and protection.
• Policy framework: The institutions have to adopt a child protection policy based on the principle of zero tolerance for violence against children.
• Support persons: It also made a provision for appointment of support persons for victims to render assistance to them through the process of investigation and trial.
  • A support person may be a person or organisation working in the field of child rights or child protection, an official of a children’s home or a shelter home having custody of the child, or a person employed by the District Child Protection Unit (DCPU), who hand holds the victim through the entire legal process.

 

Implementation hurdles in POCSO Act

• Such abuse is on the rise: According to a recent survey, one in every two children is a victim of sexual abuse in India.
• Limited POCSO courts: The POCSO courts have not been designated in all districts. As of 2022, only 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme.
  • There is also a lack of Special Public Prosecutors appointed specifically to handle POCSO cases.
• Excessive delays: The slow pace of designation of Special Courts, delay in investigation and filing of charge sheets, non-appointment of support persons for child victims in most case leads to tardy implementation of the Act.
  • Uttar Pradesh has the highest pendency with more than three-fourths (77.77%) of the total POCSO cases filed between November 2012 and February 2021 pending.
• Poor disposal rate: On an average, it takes 509.78 days for a POCSO case to be disposed of whereas it has been stipulated under the Act that such cases need to be disposed of within a year.
  • Chandigarh and West Bengal are the only states where the average time taken for convictions is within one year.
• High acquittal rate:44% of trials under POCSO end in acquittals while only 14.03% end in convictions, i.e., for every one conviction in a POCSO case, there are three acquittals.
  • This goes contrary to the data published by the National Crime Record Bureau (NCRB) in 2021 wherein 96% of the cases filed under the POCSO Act, 2012, the accused was a person known to the child victim.
• Absence of support persons: The Supreme Court had noted that in 96% of cases, a support person was not provided to the victim.
• Lack of awareness: The general knowledge of the POCSO Act remains severely inadequate in India.
• New challenges: Incidents of child abuse have also risen exponentially since the Covid-19 pandemic, with the emergence of new forms of cybercrime.

 

Way forward

• Adopting best practices: A study of what the better-performing states are doing right can help evolve certain best practices that can be adopted by other states.
  • Strong data systems and digital platforms can also help transfer learning across states and contextualize the best practices to the local courts.
• Policy interventions: Legislative changes to improve the functioning of the Act must be tailored to meet the specific capacity constraints faced by different states and a one-size-fits-all approach should be avoided.
• Making POCSO courts functional: The appointment of adequately trained Special Public Prosecutors exclusively for POCSO courts should be expedited. Progress for this can be monitored by respective High Courts.
• Gathering evidence: Employing a ‘hybrid’ approach for recording of evidence wherein the evidence of certain witnesses like doctors, forensic experts etc. can be recorded virtually.
• Uniformity in e-Courts data: A standardised drop-down menu for putting information pertaining to the name of the legislation, case type, court complex, police station etc. need to be incorporated.
• Periodic training: Integrated capacity building programmes for stakeholders like judicial officers, magistrates, police officers, medical practitioners etc., with a focus on sensitivity training to be conducted to improve coordination between them.
• Comprehensive outreach system: Engagement of parents, schools, communities, Non-governmental Organizations (NGOs) partners and local governments, police and lawyers are needed to ensure better implementation of the Act.
• Other measures: Educating children about the legislation and its provisions, proper implementation of the Fast Track Special Court’s Scheme, etc.