This article is written by Prakhar Agarwal, student of Vivekananda School of Law And Legal Studies.
The modern era with the advent of technology has gone through many changes. We all know every coin has two sides to it same goes for changes. Some changes occur for the progressiveness of society but there is no denying the fact that these changes or advancements can be misused by a lot of people. This is the era of the Internet, making it easier for criminals to target the most vulnerable bracket which is children. The crime against children is increasing at an alarming pace and if we categorize the crimes, particularly the sexual crimes against children are reaching at frightening numbers. Due to the increase in these disturbing cases, a dedicated act to protect the future of our country was “Need of The Hour.” To tackle this problem the central government came up with an act specially dedicated to protecting the most vulnerable group in our country in the year 2012. The Protection of Children from Sexual Offences Act, of 2012 deals with all the necessary provisions to protect minors from all sorts of sexual crimes against them. The crime includes sexual assault, sexual harassment, and all sorts of pornographic offences. It also provides provisions for the establishment of special courts for the speedy trial of these heinous crimes in a more comfortable environment with convenient procedures. Our law enforcement must be given every tool available to protect children from predators and parents need to know who is living in their community.
“Every Child Deserves to Feel Safe”
PROVISIONS EMPOWERING GOVERNMENT
In 1989, World Leaders created a historic commitment to the world’s youngsters by adopting the “United Nations Convention on the Rights of the Child.” The treaty is the most widely approved human rights treaty which has helped in transforming children’s lives all over the world. The treaty laid down a uniform set of prescribed rules that every member nation must follow to secure the best interest of the children. The treaty profounds the idea that it should be the foremost duty of every member state to lay down rules and acts to protect the natural and legal rights of the day children. Moreover, steps should be taken to protect children from all sorts of crimes. The Indian Government after approving the treaty on 11th December 1992 took 20 long years in implementing dedicated legislation to protect children from vulnerability.
The Constitution of India has many articles which empower the government to take necessary steps to protect children. Article 15 Clause 3 of The Constitution of India empowers the central government with the right to make any special provision for women and children. Article 39 (f) which is a part of Directive Principles of State Policy explicitly mentions that the State shall direct its policy to ensure that children are given the freedom to develop in a healthy environment with dignity and they should be protected against exploitation and moral abandonment. It is very clear that “The Constitution of India” which is the supreme law of the land also demands from the government to secure children from all sorts of harm and abuse.
“Safety and security don’t just happen; they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.”
– Nelson Mandela
SIGNIFICANCE OF THE ACT
Incidents of sexual crimes against children were increasing rapidly at all places such as schools, religious institutions etc. hence it was of great significance to introduce specific legislation to tackle these offences. The IPC does not recognise men as sexual assault victims but the most significant feature of the act is that it is gender neutral, which is protecting the modesty of both the male child and female child. Recent trend shows many cases involving boys in the age group of 5-12 sexually assaulted by offenders which show that male children are equally vulnerable as females. The lawmakers were brilliant in drafting the whole act and making it gender-neutral. The act provides a strong and robust justice mechanism for the victims of sexual crimes ensuring speedy trial and preventing the victim’s identity from getting disclosed so that if such type crime occurs it could be reported to the authorities without any fear of identity disclosure or mental agony. It also provides provisions for the establishment of special courts for the speedy trial of these heinous crimes in a more comfortable environment with convenient procedures.
IMPORTANT PROVISIONS OF THE ACT
The Protection of Children from Sexual Offences Act, 2012 is a very comprehensive act ensuring the safety of children against sexual crimes in every possible manner. The act includes 46 sections which can broadly be classified into 9 Chapters.
The 1st chapter describes the definition clause which describes different terms used in the Act. Any person below 18 years of age is defined as a Child. The 2nd chapter of the act broadly divides sexual crimes into 5 categories – Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault, Aggravated Sexual Assault, and Sexual Harassment. Each category describes the offence committed and the punishment for the same. Penetrative Sexual Assault defined in section 3 of the act is a type of sexual abuse where the offender applies his mouth or inserts any part of his body inside the victim’s organ mainly the mouth, urethra, vagina, or anus. The punishment for the crime is defined in section 4 which states it should not be less than 7 years and can be extended to life imprisonment and fine or both. To provide special protection and a safer environment for children the gravity of the offence extends if it’s committed by a police officer, family member or using deadly weapons etc. The crime is defined in section 5 of the act namely Aggravated Penetrative Sexual Assault with various scenarios where it can amount to the said crime. The punishment for this assault is even graver that is it should not be less than 10 years and can be extended to life imprisonment and fine or both.
Sexual Assault is an offence in which there is physical contact between the organs of the offender and victim without penetration. The sexual intent is of utmost importance to prove this offence. It is defined under section 7 of the Act. The punishment for the crime is defined in section 8 which states it should not be less than 3 years and can be extended to 5 years and fine or both. To provide a safer environment just like section 7 the ambit and gravity of the offence increases if it is committed by any police officer, close relatives etc. The offence is termed Aggravated Sexual Assault. There is a separate provision for Sexual harassment too which protects the modesty of the child if any objectionable gesture or content is shown to the child. Recently a controversial judgment order was passed by the Nagpur Bench of Bombay High Court where the court acquitted the accused in absence of skin-to-skin contact. The judgment outraged the citizens and the case went to the Honourable Supreme Court where the decision of the High Court was overturned. Chapter 3 of the act defines all sorts of offences related to child pornography related to making storing and publishing explicit material with grave punishment for every sort of offence. Chapter 4 describes the abetment and attempt to commit an offence that is if any person abets anyone to commit an offence under this act and the offence gets committed the person abetting shall be punished with the punishment provided for that offence.
To ensure the safety and dignity of the victim child Chapter 5 lays down all the necessary procedures for reporting of cases. The report should be in very simple language so that child can understand the content which is being recorded and the help of the interpreter should be taken by the authorities lodging the case whenever required. It also imposes liability on the authorities and makes them accountable if they fail to report or record a case. It also lays down certain guidelines to the media outlets in section 23 to prevent the disclosure of the identity of the victim unless the court permits it as it is in the interest of the child. The media persons violating these norms could be imprisoned for 6months which can further be extended to 1 year and a fine or both. Guidelines are laid down in Chapter 6 of the act for recording the statement of the child so that child is in a safe environment and mental state while recording statements. To ensure the child’s safety the statement should be recorded in the residential premises of the victim. In due course of all the proceedings, the parents or guardians of the child are always present. Medical examination of a child should be conducted in the presence of parents or any women nominate by the head of the institution. In the case of a girl child, it should be conducted by a women doctor. In Bijoy vs State of West Bengal 2017 important provisions were laid down for providing compensation to the victim at the interim stage.
The act provides provisions for the establishment of special courts under Chapter 7 of the POCSO Act. The Special Court will work efficiently to deal with these types of offences and this will help in the speedy trial of the case. Section 29 states that if a person is prosecuted under sections 3, 5, 7 and 9 of this Act, there would be a presumption by the special court that the accused has committed such an offence and the burden of proof lies on the accused to prove his innocence. A youngster told her grandmother that she had been sexually molested which was later confirmed by the medical examiner. The mother of the victim advised her t disregard the offence. The victim’s grandmother also gave a statement which was recorded in front of the magistrate. In this remarkable case, Imran Shamim Khan vs the State of Maharashtra the Honourable Bombay High Court made a crucial point that the burden of proof lies with the accused- even if a juvenile turns hostile under POCSO Act. The onus is on the accused to establish innocence. The legal strategy must ensure that the victim also receives justice Chapter 8 further elaborates on the power of the Special Court and the necessary precautions that are needed to be taken while recording the evidence to ensure the victim’s safety. Chapter 9 describes the proviso for legal assistance and public awareness about the act.
The time limit for recording the evidence of a child is 30 days from the date of taking cognizance of the offence and for the completion of the trial, it’s 1
year. The POCSO ACT ensures that every point is covered with full clarity to protect children from all sorts of atrocities and exploitation. The comprehensive nature of the act makes sure that all necessary steps must be taken to protect the modesty and dignity of the child in all possible manners.
The Protection of Children from Sexual Offences Act, 2012 is very comprehensive and exhaustive legislation which covers all aspects of child sexual offences. It is high time that awareness should be spread so that there is no hesitancy in reporting crimes. Moreover, the investigation agencies should be well-trained to tackle these crimes and many awareness programs should be organised in schools and through digital media to make children aware of their rights and to protect them from any sort of abuse. The legislation is a boon to the present era which ensures a healthy and conducive environment for the upcoming generations. “The greatest legacy one can pass on to one's children is not money or other material things accumulated in one's life, but rather a legacy of a positive and safe environment.”