POCSO ACT EVOLUTION AND CHALLENGES

Jayalakshmi K., Author

Jayalakshmi K. has completed her B.Sc. Computer science and graduated with an LLB from Tamil Nadu Dr. Ambedkar Law University in Chennai, Read More

Abstract

Child sexual abuse (CSA) is a serious concern in India, historically overlooked by the legal system. Before the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012 there were no comprehensive laws addressing CSA, and sexual offenses against children were primarily dealt with under general provisions of the Indian Penal Code (IPC). Despite its legal framework, the implementation of POCSO faces several challenges, including lack of infrastructure, inadequate training for law enforcement, delays in justice delivery, low conviction rates and social stigma that discourages victims from reporting abuse. In this article discussed few challenges and changes can be brought to improve the act efficient in more.

Introduction

Child sexual abuse (CSA) has historically been a significant concern in India, often overlooked by both society and the criminal justice system. Previously, it was not classified as a distinct criminal offense, with rape being the primary or sole recognized sexual crime[1] against minors under Indian law. Due to the absence of comprehensive legislation, various forms of sexual offenses against children—such as sexual assault (excluding rape), harassment, and exploitation for pornography—remained outside legal scrutiny. However, in recent years, the sharp rise in such crimes has prompted active collaboration between Non-Governmental Organizations (NGOs) and the Ministry of Women and Child Development. Their efforts have helped raise awareness and mobilize public support across the country. This growing momentum ultimately led to the enactment of the Protection of Children from Sexual Offences (POCSO) Act in 2012, aimed at safeguarding children from sexual exploitation and abuse.

Background

Despite strong constitutional provisions (such as Articles 15(3), 21A, 24, and 45) and international legal frameworks supporting child rights, India’s legal system lacked specific provisions addressing child sexual abuse for a long time. The Indian Penal Code (IPC) did not recognize sexual assault and exploitation of children as distinct offenses. Several commissions examined this issue, including the 42nd Report (1971), which proposed a dedicated provision for penalizing child sexual abuse[2]; the 156th Report (1997), which argued that existing sexual offense laws were adequate; and the 172nd Report (2000), which recommended significant amendments. These amendments included making IPC Section 375 gender-neutral, increasing penalties for sexual offenses committed by close relatives or those in positions of trust, and criminalizing inappropriate touching of adolescents with sexual intent. In 2003, the Goa Children’s Act was enacted by the State Government of Goa to promote child rights and address rising child abuse cases in the state. Later, in 2005, the Department of Women and Child Development drafted the Offences Against Children (Protection) Bill, which sought to address various crimes against children, including sexual offenses. The Ministry of Home Affairs suggested that a separate and comprehensive law be enacted for child abuse.

A 2007 report titled The Study of Child Abuse, published by the Ministry of Women and Child Development and based on a survey of approximately 12,500 children, revealed that 50.76% had experienced some form of sexual abuse, highlighting the severity of the issue. Recognizing this growing concern, the Ministry of Women and Child Development prepared the draft *Protection of Children from Sexual Offences Bill, 2010* in September 2010.According to the 2011 All India Census, 39% of India’s population comprised children, many of whom were vulnerable to child sexual abuse. Childhood is a crucial developmental phase that should be safe and secure, yet many children face the harsh reality of abuse instead. Although children rely on adults for safety and care, they often become victims of exploitation, including CSA. Following extensive discussions, the *Protection of Children from Sexual Offences (POCSO) Act* was passed by Parliament in June 2012 and officially enforced on November 14, 2012, coinciding with Children’s Day. A survey conducted at the time showed that 99.6% of respondents believed a law protecting children from abuse was necessary. The POCSO Act came into effect on May 22, 2012, the day after it was passed in both houses of Parliament. This legislation was enacted to protect children from sexual offenses while ensuring their rights were upheld throughout legal proceedings.

Key Initiatives for Child Protection in India

1. POCSO e-Box

The POCSO e-Box is an online complaint management system designed for the quick and direct reporting of sexual offenses against children. It facilitates prompt action against offenders to ensure the safety and protection of children.

2. National Commission for Protection of Child Rights (NCPCR)

The NCPCR works to ensure that all laws, policies, and programs align with the child rights[3] framework outlined in the Indian Constitution and the UN Convention on the Rights of the Child. It actively monitors and advocates for children’s rights and welfare.

3. Integrated Child Protection Scheme (ICPS)

The ICPS aims to create a protective environment for children facing difficult circumstances through a collaborative effort between the government and civil society organizations. It focuses on child welfare, rehabilitation, and safeguarding vulnerable children.

4. Operation Smile (Operation Muskaan)

This initiative by the Ministry of Home Affairs (MHA) is dedicated to rescuing and rehabilitating missing children. It focuses on identifying and recovering children who have been lost, abducted, or trafficked and ensuring their safe return to families or child care institutions.

5. Right to Education (RTE) Act

The Right to Education Act guarantees free and compulsory education for children aged 6 to 14, ensuring equal learning opportunities and protecting children from exploitation.

6. Beti Bachao, Beti Padhao (BBBP) Programme

This initiative promotes the protection, education, and empowerment of the girl child. It aims to address declining child sex ratios and ensure equal opportunities for girls in education and development.

Key Provisions of the POCSO Act 

Definition of Offenses

•  For the first time, the Act defines penetrative sexual assault, sexual assault, and sexual harassment.
• It also penalizes  storing pornographic material and abetment of an offense.

Criminalization of Sexual Activities[4] Among Minors

• The Act criminalizes all sexual activities involving individuals under 18 years of age, even if both parties consent.

Special Courts for POCSO Cases

•  Each district must designate a Sessions Court as a Special Court* to handle POCSO cases.
•  The state government, in consultation with the Chief Justice of the High Court, is responsible for setting up these courts.
• POCSO cases must be resolved within one year from the date of reporting.

Monitoring & Implementation

• The National Commission for Protection of Child Rights (NCPCR) and State Commissions for Protection of Child Rights (SCPCR) are empowered to monitor the implementation of the Act.

• If a child is accused of an offense under POCSO, the case will be handled under the Juvenile Justice (Care and Protection of Children) Act, 2015.

POCSO (Amendment) Act, 2019

Enhanced Punishments

• The amendment increases penalties for various offenses, including the death penalty for aggravated sexual assault against children.
• It formally defines child pornography and makes it a punishable offense.
• The amendment introduces harsher punishment for offenses as Sexual assault resulting in the death of a child.

Section 7 – Definition of Sexual Assault

• Defines sexual assault as any act where a person, with sexual intent, *touches the vagina, penis, anus, or breast of a child* or makes a child do the same to them.

Punishments Under POCSO

• The Act prescribes srict penalties based on the severity of the offense, with punishments and fines.

Key Amendments to POCSO Act, 2012

• Section 2: Amended to include the definition of child pornography.

• Section 4: Increased the minimum punishment for penetrative sexual assault from seven years to ten years, and in cases involving children below 16 years, the punishment is at least 20 years.

Challenges in the Implementation

• Insufficient infrastructure, manpower, and resources hinder the effective functioning of special courts, police units, and child welfare committees.
• The absence of trained personnel, child-friendly facilities, forensic labs, and other essential resources affects the investigation and prosecution process.

Lack of Training

• Judicial officers, prosecutors, police personnel, and medical professionals often lack proper training and orientation in handling child sexual abuse cases.

Social Stigma

• Victims and their families frequently face societal pressure to remain silent or compromise with perpetrators, preventing them from seeking justice.

Low Conviction Rate & Delays in Justice

• Conviction rates remain low due to insufficient evidence, lack of witnesses, inadequate legal aid, and poor coordination between agencies.
• Delays in case disposal further weaken the effectiveness of the Act.

• States such as Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana, and Delhi account for 51% of POCSO cases, yet conviction rates range only between 30% and 64%

Lack of Coordination Among Agencies

• Poor coordination between police, judiciary, social welfare departments, and child welfare committees leads to inefficiencies in case handling.

Issues with Age Verification

• Investigating officers rely on school admission-withdrawal records for age verification[5].
• Medical opinions on age estimation often have a wide range, leading to minors being misclassified as adults, impacting case outcomes.

Pressure to Complete Investigations

• While the law mandates completing investigations within two months, this often leads to rushed and incomplete charge sheets, compromising case quality.

Silent on Consensual Sexual Activities

• The Act criminalizes all sexual activities involving minors. If one partner is under 18, the other can be prosecuted, even if the relationship was consensual.

Delay in Lodging FIRs

• Victims, especially children, often find it difficult to report sexual offenses immediately, leading to delays in FIR registration.
• Such delays are frequently used as a defense by the accused, questioning the credibility of the victim’s account.

Recommendations by the Vidhi Centre for Legal Policy[6]

Legislative & Policy Reforms

• Reduce the age of consent from 18 to 16 with adequate safeguards.
• Hold public consultations with experts before making substantive amendments to the Act.
• Set a time limit for disbursing interim compensation to victims.

Improving the Functioning of POCSO Courts

• Appoint adequately trained Special Public Prosecutors for POCSO courts.
• Establish vulnerable Witness Deposition Centres with necessary infrastructure.
• Adopt a hybrid approach for recording evidence, allowing virtual testimony from doctors and forensic experts.
• Ensure the continuous presence of support persons during pre-trial and trial stages.
• Provide trauma training for judges and prosecutors handling child sexual abuse cases.
• Train judges to ensure timely and effective disbursement of victim compensation.

Forensic & Investigation Enhancements

• Increase the number of Forensic Science Laboratories (FSLs) and improve the capacity of existing ones.
• Strengthen forensic capabilities to improve evidence collection and case outcomes.
• These measures aim to enhance the effectiveness of the POCSO Act, ensuring faster justice and better protection for children.

Important Case Laws

Tulshidas Kanolkar v. State of Goa

• The accused exploited the victim’s underdeveloped mental faculties and sexually assaulted her multiple times.
• Due to her mental condition, the victim was unaware of the assault and could not report it.
• The delay in lodging the FIR was questioned by the defense.
• The Supreme Court ruled that the delay was justified due to the victim’s condition and that it did not weaken the prosecution’s case.

Prahlad Singh Bhatti v. NCT Delhi

• The Supreme Court laid down guidelines[7] for granting bail in sexual offence cases, considering factors such as:

1. Prima facie evidence against the accused.
2. Nature and severity of the charge.
3. Severity of punishment if convicted.
4. Risk of the accused absconding.
5. Character and previous behavior of the accused.
6. Possibility of the crime being repeated.
7. Risk of obstruction of justice.
8. Overall satisfaction of the court regarding the charges.
9. Paras Yadav & Ors. v. State of Bihar, Criminal Appeal No. 335 of 2006

• The Supreme Court held that negligence or omission by the Investigating Officer (IO) could create doubts in the case.
• However, if witnesses provide corroborative statements and medical evidence supports the prosecution, negligence alone does not justify acquittal.

Gurvinder Singh v. State of NCT of Delhi

• A 10-year-old child was kidnapped and raped by the accused.
• Forensic evidence, including traces of semen, was found on the victim’s clothes.
• The testimony of the victim and medical reports were consistent*, leading to the conviction of the accused.

Delhi Commission for Women v. Delhi Police

• The Delhi High Court issued guidelines for handling child sexual abuse cases.
• Defined “guardian” to include a natural guardian, support person, or anyone appointed by the Child Welfare Committee (CWC) to care for the victim during the trial.
• Emphasized the court’s duty to provide legal aid to victims of sexual abuse.

State v. Rameshwar Dayal

• The accused was convicted of aggravated penetrative sexual assault.
• The Special Court awarded the victim ₹1,50,000 as compensation under Section 33(8) of the POCSO Act and additional ₹25,000 from the fine imposed under Section 357(1)(b) CrPC.
• Since the victim had turned 18, he was allowed to use the compensation as he wished.

Ankush Kumar v. State

• The Delhi High Court ruled that compromise between the accused and the victim’s family cannot be grounds to quash an FIR in cases of sexual abuse.
• The accused had petitioned to quash the FIR under Sections 482 and 483 of CrPC, citing a compromise with the victim’s father.
• The court held that such offenses affect society at large and cannot be settled privately.

Conclusion

The absence of proper coordination among agencies, inadequate forensic facilities, and pressure to complete investigations within two months often compromise the quality of justice delivery. While POCSO has been a landmark step in combating CSA, continued efforts in legal reforms, awareness campaigns, and policy improvements are essential to ensure a safer environment for children in India.

[1] Education.vikaspedia.in

[2] Societylawandjustice.Com

[3] Ngopartner.co.in

[4] Pmfias.com

[5] Drishtiias.com

[6] Forumias.com

[7] Haqcrc.org