With the rising sexual offences against
children, it was felt that the crime has not been adequately addressed by the
existing laws in India. The Protection
of Children from Sexual Offences (POCSO) Act, 2012 was therefore enacted to
deal with child sexual abuse. The Act and the Rules came into effect from 14th
November, 2012. It was intended to be a comprehensive special law to protect
children from sexual assault, sexual harassment, pornography, etc. The Act was
intended to enforce the right of all children to safety, security and
protection from sexual abuse and exploitation. Sexual exploitation and sexual
abuse of children are heinous crimes that need to be effectively addressed.
Offences under the Act are dealt with by the designated Special Courts.
Offences covered under the POCSO Act
Various offences are defined and their
punishments prescribed under Chapter II of the POCSO Act such as sexual
harassment, Sexual Assault, Aggravated Sexual Assault, penetrative sexual
assault and aggravated penetrative sexual assault.
Who is a Child? Section 2 (d)
The Child is defined in S. 2(d) of the POCSO
Act as a person below the age of 18 years.
Duty to report offence Section 19
Under Section 19 of the POCSO Act any person
(including the child) who has apprehension that an offence under the Act is
likely to be committed or has knowledge that such an offence has been committed
is bound to provide such information to the Special Juvenile Police Unit or the
local Police.
Any person who fails to report the
commission of an offence is punishable with imprisonment of either description
which may extend to 6 months or with fine or with both. A person whose duty is
to record such offence after being reported, if fails to record the same, is
equally liable with the same punishment as provided under S.21 of the POCSO
Act.
Presumption of Guilt: Section 29
Under the Indian criminal law a person is
presumed to be innocent until proven guilty. But under the POCSO Act, there is
presumption of guilt as provided under S.29 of the Act. The accused is presumed
guilty of having committed or abetted or attempted to commit the offence if the
offences charged are those offences defined under S.3 (penetrative sexual
assault), S.5 (aggravated penetrative sexual assault), S.7(sexual assault) or
S.9(Aggravated sexual assault). The Act therefore, provides for reverse burden
of proof.
Liability for false Complaint: Section 22
To prevent misuse and abuse of the
provisions of the POCSO Act, it is provided under S. 22 of the Act that any
person who makes a false complaint or provides false information solely with the
intention to humiliate, extort or threaten or defame another person shall be
punished with imprisonment for 6 months and fine.
Obligation and Role of the Media: Sections 20
& S.23
Any personnel of the media on coming across
any material or object which is sexually exploitative of the child through the
use of any medium is obligated to provide such information to the Special
Juvenile Police Unit or to the local police.
The report in any media shall not disclose
the identity of the child including his name, address, photograph, family
details, school, neighborhood or any other particulars which may lead to
disclosure of the identity of the child. The publisher or owner of the media
shall be jointly and severally liable for the act or omission of his employee.
Any person who contravenes these provisions shall be liable for imprisonment up
to six months which may extend to one year along with fine.
Recording of the Statement of a Child: Section
24
The Act provides that the statement of a
child should be recorded at the residence of the child or at a place where he
usually resides or at the place of his choice. As far as practicable the
statement should be recorded by a woman Police officer not below the rank of Sub-Inspector.(S.24)
It is also provided that the Police Officer while recording the statement of
the child shall not be in uniform. [S.24(2)]
Punishment for abetment of offence Section 17
Section 17 of the Act provides that whoever
abets any offence under the Act, if committed in consequence of the abetment
shall be punished with the punishment provided for the offence.
Speedy Disposal Section 35(2)
Section 35 (2) of the Act mandates that the
Special Court shall complete the trial, as far as possible within a period of
one year from the date of cognizance of the offence.
Child not to see accused at time of
testifying and proceedings to be held in camera : Sections 36 & 37
It is provided in S.36 of the Act that the
child should not be exposed to the accused in any way to the accused at the time
of recording of evidence. Ta the same time it should be ensured that the
accused is in a position to hear the statement of the child and communicate
with his advocate. The Special Court may record the statement of a child
through video conferencing or by utilising single visibility mirrors or
curtains or any other device.
S.37 of the Act provides that the Special
Court shall try cases in camera and in the presence of the parents of the child
or any other person in whom the child has trust or confidence.
Public awareness about the Act Section 43
The Central Government and every State
Government is obligated to take all measures to ensure that the provisions of
the Act are given wide publicity through media including the television, radio
and the print media at regular intervals to make the general public, children
as well as their parents and guardians aware of the provisions of the Act. The
Officers of the Central Government and the State Government and others including
Police Officers are to be imparted periodic training on the matters relating to
the implementation of the provisions of the Act.
Monitoring of implementation of the Act
The National Commission for Protection of
Child Rights and the State Commissions for Protection of Child Rights are to
monitor the implementation of the provisions of the Act as prescribed under the
Rules, such as monitoring the designation of Special Courts by the State
Government, appointment of Special Public Prosecutors, formulation of guidelines
for the use of NGOs, Professionals and experts, modules for training of Police
personnel etc.
Compensation.
Under Rule 7 of the Protection of Children
from Sexual Offences Rules, 2012 the Special Court may, in appropriate cases,
on its own or on an application filed by or on behalf of the Child, pass an
order for interim compensation to meet the immediate needs of the child for
relief or rehabilitation at any stage after registration of the First
Information Report . Such interim compensation shall be adjusted against the
final compensation, if any.
Concern for Children
Children who have been sexually abused are
traumatised as a result of their experience. They are at further risk of
exploitation and victimisation during the justice delivery system if the cases
are handled by unspecialized Police, prosecutors and Judges who are not trained
in delivering justice for children.
Prevention of child sexual abuse, protection
of the victim, justice delivery and rehabilitation of victims are inter-related
issues. The key players include the Police, Prosecution, Courts, NGOs, Medical Institutions,
Psychologists and Counsellors. The victims need to be treated with sympathy,
love and care. Each of us has a role and responsibility in the rehabilitation and
healing of the child who had been a victim of sexual exploitation. The children
of poor families are often the victim.
Our duty to our children
When a sexual offence against a child becomes
public knowledge it can often lead to mob violence like burning the house of
the accused. The Responsibility lies heavily upon all concerned to help deliver
justice promptly, speedily and it is required that justice should not only be
done but must also be seen to be done. The general public often believes that
justice delayed is justice denied. On the one hand, the public should be
educated and made aware that nobody is above the law and that they should not
take the law into their own hands, on the other hand, the legal system should
be responsive taking into account the fact that in POCSO cases endeavour should
be made to conclude the trial, as far as possible, within a period of one year
from the date of taking cognizance of the offence [S.34(2)]. A prolonged trial
not only vitiates the rights of the accused but the victim suffers twice i.e. the
pain of being a victim and a protracted trial. Everybody owes a duty towards
their children to protect them and to enable them to spend a happy and safe
childhood. Our children are our future.