POCSO Act: Features, Controversies and Recommendations
Introduction:-
• A comprehensive law was passed in 2012 called the Protection of Children from Sexual Offences Act (POCSO Act) to safeguard children from sexual abuse. The Act classifies as a child anybody under the age of 18 and criminalizes a variety of sexual offences, such as penetrative and non-penetrative sexual assault, sexual harassment, and the use of child pornography.
• Children are intended to be protected from all forms of sexual abuse under the Protection of Children from Sexual Offences Act, 2012 (the "POCSO Act, 2012"). Even though the United Nations ratified the Convention on the Rights of the Child in 1989, India did not pass any legislation to address crimes against children until 2012. It stipulates severe penalties for crimes against minors, ranging from the death penalty in cases of extreme penetrative sexual assault to a minimum sentence of 20 years in jail.
Features:- The POCSO Act's essential features include the following:
• Sensitive punishments: The POCSO Act prescribes sensitive punishments for sexual offences against minors. Aggravated penetrative sexual assault carries a minimum sentence of 20 years in jail and a maximum sentence of the death penalty.
• Mandatory reporting: The POCSO Act requires certain professions, including physicians, educators, and police officers, to alert authorities when they suspect a child has been sexually abused.
• Special legal systems and processes: The POCSO Act calls for the creation of special courts to handle child sex abuse cases. The Act also specifies additional processes to guarantee that child victims are shielded from re-victimization during the course of the trial.
• No matter their gender or sexual orientation, all children are covered under the POCSO Act, which is a gender-neutral statute. Additionally, the Act makes special accommodations for kids with disabilities.
• The identity of the victim must be kept confidential under Section 23 of the POCSO Act, which also imposes a requirement to do so unless the Special Court has authorized disclosure. No reporting in the medium may reveal a child's identity, including his name, residence, portrait, family information, school, neighbourhood, or any other facts that might reveal the child's identity, according to Section 23(2). The Calcutta High Court repeated the legislation created under Section 23 and ruled that anybody, even a police official, shall be punished if they commit such a breach in the landmark case of Bijoy Guddu Das v. The State of West Bengal (2017).
• The POCSO Act's major flaw is that it makes no distinction based on gender between the offenders or the victims of crimes. This fixes one of the clauses of the Indian Penal Code's main flaws. Anyone less than 18 years old is included in the definition of a child, and in certain instances, women have even been found guilty of child sexual assault by juries.
• In the cases involving child sexual abuse, the last seen theory is used. In accordance with this hypothesis, when there is a very small amount of time between when someone was last seen alive and when they were last seen with the victim, it is presumed that they are the ones who committed the crime. It was noted in the 2012 case of Shyamal Ghosh v. State of West Bengal that it is unreasonable for the courts to use the last-seen approach when there is a significant time lapse.
Controversies:- The POCSO Act has received plaudits for its all-encompassing strategy for safeguarding kids from sexual assault. However, certain of the Act's provisions, such as the requirement of the death penalty for severe penetrative sexual assault, have drawn criticism:
• The obligatory death sentence for serious penetrative sexual assault is criticized by some as an unjust and unusual punishment. They contend that it is out of proportion to the crime and that it does not prevent crime.
• The legal drinking age is: A kid is someone under the age of 18 according to the POCSO Act. This implies that engaging in consenting sexual behaviour with another teenager who is 16 or older is illegal. Some detractors claim that this is overly restrictive and that it should be acceptable for teenagers to have consensual relationships as long as both parties are of legal age to consent.
• The POCSO Act has a very wide definition of what constitutes sexual abuse. This has given rise to worries that the Act is being used to prosecute innocent people, such as parents who show their children affectionately.
• Public perception and the role of the media:
1. When covering POCSO situations, the media should use caution to preserve the
victim's identity. Media outlets are required to abide by these rules since it is illegal
under the Act to reveal the identity of the child victim.
2. The media's capacity to uphold the victim's dignity and privacy can have an impact
on public perception.
3. Witnesses and victims might be impacted by intense media publicity. Due to media
attention, they could experience pressure, fear, or even intimidation, which may
affect their desire to comply with authorities.
• Fast-track trial system criticisms :
1. Trials that go rapidly could place more pressure on witnesses, notably victims who
were children, to testify swiftly. This can cause them mental discomfort and degrade
the credibility of their evidence.
2. Critics claim that placing too much focus on quick trials might result in hasty probes. Lack of time for proper evidence gathering and analysis may lead to weaker
arguments and possible injustices.
3. The already crowded court system may become overburdened by the fast-track
system. This might affect the overall effectiveness of the legal system by causing
backlogs of non-POCSO cases and delays in other cases.
The POCSO Act has been a historic piece of legislation in the struggle against child sexual abuse notwithstanding these difficulties. The Act has made it simpler for victims to come forward and report crimes, as well as aided to increase awareness of the problem.
Recommendations:- The POCSO Act may be made better by implementing the following suggestions:
1) Remove the obligatory death sentence: Aggravated penetrative sexual assault should no longer be subject to the death penalty. The death sentence is an unusually brutal punishment that does nothing to prevent crime.
2) Increase the consent age: The consent age should be increased to 16 years. Insofar as both parties are of legal age to consent, this would permit teens to have consensual relationships. Reviewing the legal requirements for marriage and the age of consent in POCSO Act cases is a difficult task that requires weighing child protection, individual rights, cultural nuances, and practical difficulties. Any modifications to these age restrictions must be well thought out, supported by research, and followed by extensive initiatives to help young people become
educated decision-makers.
A. Eradication of Child Marriage: Proponents of raising the legal marriage age claim that this is in line with efforts to end child marriage. Higher marriage ages can aid in preventing underage unions and the problems they bring, such as untimely births.
B. Opportunities for Education: Postponing marriage enables people to pursue education and personal growth, which may have long-term socioeconomic advantages for both them and society.
C. Empowerment of Young Females: By providing them greater control over their lives, options, and futures, raising the marriage age can especially empower young females.
D. Reducing Health dangers: Delaying marriage can lower the dangers for young girls' health that come with early pregnancy and delivery, which can be fatal.
3) Specify what constitutes sexual abuse: To avoid using the POCSO Act to punish innocent persons, the concept of sexual abuse under the Act has to be defined.
4) Requiring the establishment of Special Juvenile Police Units to look into crimes against minors in all states and union territories.
5) Increasing the number of courts that handle POCSO matters quickly.
A. Courtrooms that are kid-friendly: Create kid-friendly courtrooms to lessen the pain suffered by young victims. These courtrooms ought to have a welcoming and non-threatening atmosphere.
B. Judges and prosecutors who specialize: Select jurists and prosecutors with experience in POCSO cases. A deeper comprehension of the particular requirements and sensitivities of such instances may result from this speciality.
C. Legal professionals' education: Give judges, prosecutors, and defence attorneys frequent training and workshops on child psychology, trauma-informed strategies, and the specific provisions of the POCSO Act.
D. CCTVs (closed-circuit televisions): Utilize CCTV cameras to allow young witnesses to provide testimony away from the accused. This may lessen the intimidation and dread that trial participants may feel.
E. To guarantee that child victims of the POCSO Act obtain justice, as well as to preserve the rights of the accused and maintain the integrity of the judicial system, trial processes must be revised for fairness and efficiency. It needs a multifaceted strategy that includes capacity building, legal reforms, and public awareness campaigns.
Conclusion:-
The POCSO Act is a significant piece of law that is essential in preventing sexual exploitation and abuse of minors. To guarantee that it is more effective and that the rights of both victims and accused are safeguarded, the Act can yet be enhanced.
The public must be made aware of child sexual abuse in order for these crimes to be
reported without hesitation. In order to eliminate any possibility of carelessness on their side, the investigative authorities should be well-trained, and experts like medical practitioners engaged in the phases of investigation and trial should be effective. The POCSO Act already makes the process kid-friendly, and court officials, magistrates, and police officers should adopt this strategy in order for the child victims to have faith in them.