Posco- Protection Of Children From Sexual Offence Act, 2012

Written by Meher Makwana

Every second child in our country was sexually abused according to a study conducted by the Government of India on 17, 220 children and adolescents to ascertain the extent of sexual abuse; 52.94 of them were boys and 47.06% girls. Assam (57.27%) reported the highest number of sexual abuses followed by Delhi (41%), Andhra Pradesh (33.87%) and Bihar (33.27%). The parliament of India passed the Protection of Children Against Sexual Offence Bill,2011 regarding child sexual abuse on 22 May 2012, making it an Act. The act was enacted to provide a robust legal framework for the protection of children legal framework for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interest of the child at every of judicial process. The act is gender-neutral for both children and the accused.

The definition of a child according to this act, is any person who is under 18 years. However, this definition

Sexual assault is also something with the sexual intent or makes the child touch them or someone else. The sexual assault can also be penetrative sexual assault i.e.,

1. He penetrates his penis to the extent into the vagina, mouth, urethra or anus of a child.
2. He inserts to any extent, any object or a part of the body not the penis into the vagina or the urethra, or anus of the child or makes the child to do so with him or any other person.
3. He manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body
4. He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child do so to any such person

The POCSO Act was amended and made more stringent, the amendment raised the minimum punishment for penetrative assault from 7 to 10 years to 20 years if the victim was below 16 years in age, with a maximum punishment of life imprisonment with a provision for the death penalty for aggravated penetrative assault. There were various procedural reforms, making the tiring process of the trail in India considerably easier for the children. It aims to minimize trauma felt by the victim, eliminate the possibility of revictimization and protect against intimidation.

Under the POCSO rules, it shall be the responsibility of the local police or the Special Juvenile Police Unit to keep the family of the child and the child himself informed about the progress in the case including the arrest of the accused and other court proceedings.

In Avinash v. State of Karnataka, it was an apt example of negligence on the part of police officers and the investigating agencies which further contributed to the vulnerability of the victim. An appeal was filed by an accused who not only kidnapped the victim but also had a sexual relationship with her. However, in spite of the commission of such a heinous crime on his part, the court refused to proceed with the documents and evidence presented because it itself had too many loopholes.

Although the act holds good and renders an ample number of advantages, however, it would be wrong to label it as a masterpiece legislation that is free from any sought-after lacunae. The act within itself has several loopholes. To mention a few:

• Section 3 of the POCSO act (possession of pornographic materials in a form involving a child for commercial use), does not apply to women since it only makes a male person an accused in the case. If the woman commits a crime of sexual offence under section 3 of this act she cannot be charged as per the same provision.

• The POCSO Act is silent on the way out if the victim’s child refuses to undergo a medical examination but the investigating office and family members are willing to let the child take medical examination.

• There are several challenges regarding the implementation of the act one of them is the low representation of women forces in the police which is needed for the recording of the statements of the affected girl child, but only 10% of the whole police force comprises women.

• Though there is a provision to record statements using audio-video means, however, there are still reports of lapses in investigation and preservation of the crime scenes in some cases. In Shafhi Mohammad vs the State of Himachal Pradesh the supreme court held in the cases of heinous crimes it is the duty of the investigation officer to photograph and videography the scene of crime and preserve the same for the evidence. 

• There is a provision for providing support persons to the victim’s children, but the support person is seldom provided leading to the acquittal of accused persons in a large number of cases. According to Rule 4(8) of the POCSO rules, 2020 (which mentions that the child should render assistance in all possible manner throughout the process of investigation and trial), the Child Welfare Committee normally sees that there is not much of support provided leading to the acquittal of most of the cases registered under this Act and psychological and mental pressure on the victim and her/his family.

• According to section 29 of the POCSO Act, 2012, the Special Court shall presume that the accused persons have committed or attempted to commit the offence unless the contrary is proved, in case they are prosecuted for committing or abetting or attempting to commit the offence. While rich accused persons can engage good advocates to defend themselves in court, it will be impossible for a poor man to wriggle out of the clutches of the provisions of the POCSO Act, if implicated, due to his inability to engage a good advocate.

• Though the age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act 2015 no such provision exists under the POCSO Act for Juvenile victims. In Jarnail Singh vs state of Haryana, the SC held that the given statutory provision should be the basis to help determine age even for a child who is a victim of crime. However, in the absence of changes in the law or even specific directions, the investigating officers continue to rely on the date of birth recorded in school admission withdrawal registers.

The POCSO Act 2012, was an important step toward creating a safer environment for the children of our country. It was adopted to protect children from sexual offences like acts of sexual harassment and assault and child photography. This act for setting up of Special Courts that are better equipped to deal with such offences in a more effective manner. Various loopholes and discrepancies have been noticed in the Act during its operation and implementation at the ground level, which needs to be plugged and rectified for more potent and fair use of the Act in dealing with perpetrators of crime and simultaneously preventing its misuse by the unscrupulous members of the society.

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