Examining a decade of the POCSO Act

(Mains GS 2 : Government policies and interventions for development in various sectors and issues arising out of their design and implementation.)

Context:

• Ten years have passed since the Protection of Children from Sexual Offences (POCSO) Act, 2012, enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992, came into effect on November 14, 2012.

About POCSO Act:

• The Protection of Children from Sexual Offences Act, 2012, (POCSO Act) and its corresponding rules were enacted with the objective of protecting children from a slew of sexual offences and introducing child-friendly judicial mechanisms for dealing with such offences.
• The aim of this special law is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or in adequately penalised. 
• Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to [a] fine.” 
• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.

Gender-neutral nature:

• Even though the National Crime Records Bureau has not published data on male and female victims separately, in Chhattisgarh, male child victims accounted for about eight in every 1,000 POCSO cases (0.8%). 
• Though the reported number is not big, it still endorses society’s apprehension that the sexual exploitation of male children is also a serious issue that has been largely unreported. 
• There is sufficient general awareness now to report cases of sexual exploitation of children not only by individuals but also by institutions as non-reporting has been made a specific offence under the POCSO Act. 
• Further, the offence of ‘sexual assault’ has been defined in explicit terms (with increased minimum punishment) unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.

Challenges on the ground:

• Amidst the debate on the poor conviction rate under POCSO and a lowering of the age of consent from 18 years to 16 years (though rejected by the Central government), it is worth evaluating its impact on the ground.
• Though there is a provision to record statements using audio-video means, and a Supreme Court judgment, Shafhi Mohammad vs The State of Himachal Pradesh (2018), on capturing and preserving the scene of crime of heinous offences using audio-video means , the pilot project has yet to be implemented across States. 
• In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge. 
• Medical examination of the prosecutrix is conducted according to provisions of the CrPC, however, the medical examination of a girl child is conducted by a female doctor (as specified in the POCSO Act). 
• Even so, and as observed by the Supreme Court of India, there are instances where the banned two-finger test is still in use. 
• Further, there have been no attempts to upgrade the FSLs in States to expedite the examination of exhibits. 

Complete investigation:

• Though age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act, no such provision exists under the POCSO Act for juvenile victims. 
• The Supreme Court in Jarnail Singh vs State of Haryana (2013) held that the given statutory provision should also be the basis to help determine age even for a child who is a victim of crime. 
• Further, the time mandated to complete investigation of rape (as in the CrPC, without a similar provision in the POCSO Act) is two months. 
• Though the aim is to expedite investigation, it has resulted in putting much pressure on the IOs to somehow submit a charge sheet in two months irrespective of what stage the investigation is at.
• Thus, unfortunately, the focus is largely on completion of investigation in two months irrespective of quality.

Conclusion:

• It is time that there is a review of the way the POCSO Act is implemented to see how far it has helped victims of sexual exploitation and what more needs to be done to ensure justice.