CHALLENGES AND LOOPHOLES UNDER THE POCSO ACT, 2012
POCSO (Protection Of Children from Sexual Offences) Act, 2012 has been effective from 14th November 2012. It was enacted with 46 sections to deal with the sexual offences committed against children whose age factor is below 18. Being a victim-centric law and more strictly made, It aids in protecting the children. But like many other acts which deal with offences against the human body, this too had loopholes and is being used for their revenge. Hence, it is dealing with many challenges and loopholes. However, the parties and their misuse don’t solely make the act non-trustworthy but also the machinery, working of authorities, not-so-frequent speedy trials, accountability etc. are to be taken into consideration as well.
Minor, Victim child(prosecutrix), Article 15, UN Convention, Consent, Age, Documents, Sexual assault, Justice, Compensation, Trial process, Investigation process.
The Indian Penal Code provides for the punishment of criminal activities. It has remained inadequate to protect minors from more severe crimes such as sexual abuse, sexual exploitation of children etc. In 2012, the government made the POCSO Act to address such kinds of offences and protect the children who are the future of our nation.
Enactment of this Act is due to India’s ratification of the UN Convention on the Rights of Children, 1992 and also by Article 15 of the Indian Constitution, in which the law mandates the states to protect children. The act made legal procedures such as setting up special courts to deal with the sexual offences committed on minors.
CHALLENGES FACED BY THE ACT:-
The POCSO Act, of 2012, which is quite successful does have issues in it. A few of them are mentioned below.
Consent given by the minor:-
1. The Act protects minors from sexually happening offences against them, but it doesn’t mention anywhere regarding the matter in which two minors sexual in a sexual act consensually.
2. And also when the consent was given by someone under the age of 18.
The age of the minor is a major factor to protect a minor from these heinous offences is to be able to determine their exact age. There has to be an absolute norm to determine their age. But the Act doesn’t provide any provision to estimate the age factor but the Court follows Rule 12 of the Juvenile Justice Rules.
Rule 12 accepts the documents only of:-
1. Matriculation, in the absence of it,
2. School (excluded Play School), in the absence of it,
When the aforesaid documents can’t be provided, then the judiciary might seek the help of a Medical Board. The board runs a test called the Ossification Or Osteogenesis Test in which a persons age can be determined by calculating the formation of the human bones. But this test can’t determine the exact age of a child thus it can’t be of full help to the case happening. Therefore, POSCO Act must mention the provisions regarding the documents to be provided for determining the age These obstacles might be the decision to grant the benefit of doubt.
According to the Act, a minor victim child’s affidavit must be taken at the victims house or any place of their choice by a women police officer who shall be in the chair of Sub-Inspector. This is a challenge to be looked into because the women police force remains at 10% in our country. Few Police Stations don’t even have a single women officer working in them.
Cross-Examination of the Magistrate:-
Every other authority who is involved such as a Doctor who verifies the condition of the prosecutrix is cross-examined or questioned but not the Magistrate, who take the recordings of the statements of the victim. Act shall make every individual or authority equally accountable.
Are involved major the person's had given no punishment for retracements made by the party? Considering the heinous crimes against the aggrieved must be served justice but not ignorance or sympathy when proven fraud. Exceptions are not at all necessary because they make not-so-guilty accused life a black mark.
The process of the investigation must be done within 1 month form the date of the commencement or reporting of the offence. Generally investigation done within a month is not so frequently seen due to the absence of various factors such as delay in collecting the evidence related to forensic, adequate materials, case being convulsed etc.
Due to such late process, procrastination might be seen on the application of charges. This serves justice in not so speedy manner and not so effective.
Recent sexual intercourse:
Another challenging issue is, whenever a sexual assault was commenced, a delay in reporting the offence or delay in starting the investigation process might effect the medical examination process. The diminished traces of the act make the medical process difficult to validate the intercourse. In some of the cases, 1 where a minor girl faced any sexual assault but is married or participated in consensual intercourse before the offence made against her might tag her as a habitual sexual participant and portray to the officials that she is not under any sexual offence and the assault commissioned against her is consensual. Such conditions might have drastic effects on validating a crime and won’t spare a chance to provide the benefit of effect.
LOOPHOLES IN THE ACT:-
Where there is good there exists bad, this statement justifies itself every single time an offence comes into the limelight. Both Victim and the perpetrator are Prone to misuse the act despite its existence which is to protect a minor child through various legislations made by the government. One of them is the Prohibition of Child Marriages Act of 2006.
1. Ceremony of marriage shall be held between the male of above 21 years and the female of above 18 years.
2. But an exception was given to the age factor under Section 3 of the Act and quoted it as Voidable Marriages. This was prominently misused by the minors whenever they wanted to quit their marriage by tagging it as a sexual assault from their partner under POCSO Act, in which child marriage and consummation of it is
not valid. This might happen from either of the parties as there is no provision for inquiring the consent in such a sexual act.
3. To damage the Reputation:
The Act doesn’t punish any child who produces false information or statements against the accused. So might be the family members or someone else make use of it to destroy their rivals career.
4. Compensation: If a person is not proven guilty and falsely accused, there is no provision for making it up to him through any kind of compensation for the loss he faced during the trail it might be of his public image or loss of his profession etc. due to these charges.
5. Medical Examination: The POSCO Act has not included anything that gives a clear view of whether a minor victim wants to avoid the procedure of medical examination but the parents and the medical examiner want to conduct the test.
6. Guilty until proven innocent: Under this Act, a perpetrator whether or not he truly committed the crime is taken secondary and treated as not guilty unlike in other cases which takes not guilty until proven. This might severely affect the perpetrator's public profile when he’s fraudulently accused.
Prohibition of Child Marriages Act, 2006, POCSO Act, personal laws to be amended to avoid such misuses and without any issues arising out of them. Training Advocates, Magistrates, Medical Staff, Teachers, Interviewing officers etc. whoever deals with children and the Act. Incorporating such training The act in the Act might be even more helpful. Awareness must be given to children through parents regardless of their age on good and bad touch; sexual abuse and assault. When seen many cases mostly a child is opening up about the situations they’ve been facing only by repeated questions from parents but not voluntarily. Which make these crimes unnoticed.
There should be a harmonious they make between the departments and to act in good faith while dealing with these cases i.e. Police, Child Welfare Committee, and Medical Authorities. In order to prove the recent intercourse, the medical examination of the victim child shall be done as soon as possible from the commencement of the offence. No procrastination should be made in the process.
POCSO Act, 2012 is a piece of legislation to be proud of. However, the Act even after completing its 10-year journey still has negatives and remains a miscellaneous provision. Few factors which diminish the purpose of the act shall be removed. Day by day the series of crimes against children are rapidly increasing. To ensure the safety of innocent children, we as the citizens of this country must get
awareness of these laws and promote and push the Government to make long-term systemic, effective changes.