Provision of POCSO Act

What’s in today’s article?

• Why in News?
• Protection of Children from Sexual Offences (POCSO) Act – background, about, key provisions, gap in implementation.
• News Summary

 

Why in News?

• One in every four cases under the Protection of Children from Sexual Offences (POCSO) Act in West Bengal, Assam and Maharashtra constituted romantic cases, where the victim was found to be in a consensual relationship with the accused.
• This was revealed by a study conducted by Enfold Proactive Health Trust and UNICEF-India.

 

Background of Protection of Children from Sexual Offences (POCSO) Act

• The Constitution of India has incorporated several provisions to protect the rights of children.
• India has also been a signatory to landmark international instruments, such as:
  • Convention on the Rights of the Child,
  • Protocol to the Convention on the Rights of the Child on the Sale of Children, etc.
• However, India lacked any dedicated provision against child sexual abuse.
  • Cases would be tried under different provisions of the Indian Penal Code, which was found to be ill-equipped.
• In 2005, the Department of Women and Child Development prepared a draft bill to address different offences targeted against children.
• In September 2010, the Ministry of Women and Child Development prepared a draft Protection of Children from Sexual Offences Bill, 2010 which came into force as the POCSO Act on Children’s Day – 14 November, 2012.

 

What is the POCSO Act?

• It is the first comprehensive law in the country dealing specifically with sexual abuse of children, and is administered by the Ministry of Women and Child Development.
• It was intended to protect children from sexual assault, sexual harassment and pornographic violations, as well as to establish Special Courts for such trials.
• In 2019, the Act was amended to strengthen the penalties for specified offences in order to deter abusers and promote a dignified upbringing.

 

What are the key provisions of the POCSO Act?

• Gender-neutral legislation: The Act defines a child as "any person" under the age of 18.
• Non-reporting is a crime: Any person in charge of an institution (excluding children) who fails to report the commission of a sexual offense involving a subordinate, faces punishment.
• No time limit for reporting abuse: A victim may report an offence at any time, even years after the abuse has occurred.
• Keeping victim’s identity confidential: The Act forbids the disclosure of the victim's identity in any form of media unless authorized by the special courts established by the Act.

 

Gap in implementation of POCSO Act:

• Support persons are not being appointed in most POCSO cases. The Supreme Court had also noted that in 96% of cases, a support person was not provided to the victim.
  • A support person is someone who hand holds the victim through the entire legal process.
  • This may be a person or organization 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.
• POCSO courts have not been designated in all districts.
  • As of 2022, 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme.
• There is a lack of Special Public Prosecutors appointed specifically to handle POCSO cases, and even when they are appointed, they are often employed for non-POCSO cases.
• A study found out that 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.
  • There was a sharp increase in the number of pending cases between 2019 and 2020, which could be attributed to the COVID-19 pandemic.

 

News Summary

• The study also found that in nearly half of the romantic cases (46.6%), the girl was between 16 to 18 years.
• POCSO Act criminalizes all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case.

 

Focus back on age of consent

• These finding have brought the focus on the concern related to the age of consent.
• Recently, this matter was also highlighted by the Chief Justice of India D Y Chandrachud.
  • While speaking at a national stakeholders’ consultation focused on implementation of the POCSO Act, he urged the legislature to take into consideration the growing concern around the “age of consent” under the Act.
• The study also found that convictions were recorded only in exceptional cases and acquittals were the norm in romantic cases.
  • This shows that the courts take a lenient view of such cases even when the legislation does not recognize consensual sexual activity for minors below the age of 18 years.
• There is need for an amendment to the POCSO Act and the IPC to decriminalize consensual acts involving adolescents above 16 years.
• At the same time, it must be ensured that those between 16-18 years are protected against non-consensual acts under the Act.

 

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Q1) Are POCSO offences non-bailable?

The Delhi High Court has ruled that sexual harassment of a child, which is punishable under Section 12 of Protection of Children from Sexual Offences (POCSO) Act, 2012, is a cognizable and non-bailable offence.

 

Q2) What is the age of consent in India?

In 2012, the POCSO Act raised the age of consent to 18 years, which had been at 16 years since 1940.

 

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