India has about 40 per cent population of children below 18 years of age and according to studies, about 53 per cent of them have been sexually offended. Though we have a very stringent law named Protection of Children from Sexual Offences Act (POCSO Act), 2012, it’s high time and right opportune to examine the efficiency of implementation of the Act and audit the performance of institutions of governance in India. This was also endorsed by Justice Verma Committee in 2013.
POCSO Act 2012 (it received the President’s assent on 19 June 2012 and was notified in the Gazette of India on 20 June, 2012) was formulated in order to effectively address sexual abuse and sexual exploitation of children. The Act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It 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 like a family member, police officer, teacher, or doctor. The Act also casts the police in the role of child protectors during the investigative process.
However, the Supreme Court in July this year said that according to Section 2 (d) of the POCSO Act, the term “age” cannot include “mental” age as the intent of Parliament was to focus on children, that is, persons who are physically under the age of 18 years. Protection of Children from Sexual Offences (POCSO) Act 2012 deals with the sexual offences against those below 18 years of age.
According to the court, a perusal of the POCSO Act, it is clear to that it is gender neutral. In such a situation, to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating certain words to the definition. By saying ‘age’ would cover ‘mental age’, it has the potential to create immense anomalous situations without there being any guidelines or statutory provisions.
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. Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date of reporting of the offence.
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.
Until making of this Act, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children as the law did not make a distinction between an adult and a child. It is provided in the Act that as soon as a complaint is made to the Special Juvenile Police Unit, steps for relief and rehabilitation shall be taken at the earliest. The Act makes it mandatory for the Centre and the states to take measures for giving wide publicity through the media and imparting training to all stakeholders on the matters relating to the implementation of the Act. However, it remains a harsh reality that like many other laws in India, this Act also is not well known.
The National Crime Records Bureau (NCRB) says that the number of child abuse cases registered under Prevention of Sexual Offences Against Children (POCSO) Act went up from 8,904 in the year 2014 to 14,913 in 2015. Madhya Pradesh, Maharashtra, Uttar Pradesh, Delhi and Rajasthan top the list. Uttar Pradesh led the highest number of child abuse cases with 3,078 followed by Madhya Pradesh with 1,687 cases, Tamil Nadu with 1,544 cases, Karnataka with 1,480 cases and Gujarat by 1,416 cases, POCSO said. The NCRB clarifies that the neighbours are also a big threat as according to data on cases registered under POCSO in 2015, in 3,149 cases registered, that is 35.8 percent of the cases, the person next door was the perpetrator. In over 10 per cent of cases last year, children were subjected to rape by their own family members or relatives.
Further, in 2014, the Delhi High Court was told by the Delhi State Legal Services Authority (DSLSA) that only 18.49 per cent of people accused of child sexual abuse under the Act were found guilty by courts in Delhi. In the first half of 2016, however, it also said that the conviction rate “leaves an unsavoury image of the way the criminal justice system is being administered in Delhi, and creates alarm in the mind of the general public that child victims of rape and sexual offences are not getting justice”. Similarly, a report by the National Law School Bangalore, which analysed 667 judgments between 2013 and 2015, shed light on this phenomenon. It stated that alleged victims turned hostile in “67.5% cases, and testified against the accused in only 26.7% cases”.
(CBP Srivastava is an expert on the Constitution of India. He is President of the Centre for Applied Research in Governance, New Delhi.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)