By Anjali Rawat, RMLNLU, Lucknow.

53% of the children in India had been sexually abused as per the 2007 survey by the Ministry of Women and Child Development. In the light of such circumstances Protection of Children against Sexual Offences Act, 2012 also known as POCSO Act was passed by both the houses of Parliament on May 22, 2012 and it came into effect on November 14, 2012. POCSO Act is a step forward because before there were only two punishable sexual offences in the IPC- rape, which is peno-vaginal penetration, and outraging the modesty of a woman, e.g. groping or taking indecent photographs. Also, the law did not distinguish between an adult and a child. This act is applicable to the whole of India and provides protection to children under the age of 18 years against sexual offences.

Features of POCSO

1. Gender neutral.

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Meaning thereby crimes of such nature done to male or female child will be dealt with, by this act only.

2. Burden of proof.

The rule under this act is“guilty until proved innocent” instead of  the general rule “innocent until proved guilty” and to  prevent misuse of  law, punishment has been provided for false complaints or false information with malicious intent.

 3. It makes the recording of abuse mandatory.

This act also states that it is  mandatory for the police to register an FIR in all cases of child abuse. A child’s statement can be recorded even at the child’s residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub-inspector.

4. It lists all known types of sexual offences towards a minor.

It punishes penetrative sexual assault, aggravated penetrative sexual assault, non-penetrative sexual assault, aggravated non-penetrative sexual assault, sexual harassment,  use of minor for pornographic purposes,  attempt or abetment of offence and even  failure to report an offence, i.e.,  if there is an apprehension of such offence to be committed, then the same should be immediately reported. Failure to report will attract imprisonment of 6 months or fine or both.

5. It provides for the protection of minors during the judicial process.

i. For speedy trial, the evidence of the child is to be recorded within a period of 30 days.

ii. Special courts have been set up to conduct trials, which should be completed within one year . These courts must ensure that:

  • The minor is not exposed in any way to the accused during the recording of evidence and his identity is not disclosed at any time during the investigation or trial.
  • The minor is not made to repeat his/her testimony in court, and that he/she can give the testimony using a video link.
  • The defence routes all questions through the judge and is not allowed to ask them in an aggressive manner.
  • An interpreter, translator, special educator or any other expert is present in court for the minor’s assistance.
  • There is a defined criteria for awarding compensation by the Special Court that includes, loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse.

6. It has raised the age of consensual sex from 16 years as per Indian Penal Code, 1860 to 18 years.

This means that –

  • Any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented.
  • A husband/wife can be prosecuted for engaging in a sexual act with his/her spouse under the age of eighteen years.
  • The POCSO Act, 2012 does not recognize consensual sexual acts among children or between a child and an adult. [1]

And this is where the problem lies. In  State v. Aas Mohammad[2] , a 14-year-old girl was in a sexual relationship with her landlord. A complaint was filed by the mother on discovering that the girl was six months pregnant. In court, the girl admitted that the matter was reported only because the man had refused to marry her. During the proceedings, the accused offered to marry the girl, deposit a sum of Rs 30,000 in her name, and provide shelter for her mother. The couple got married when he was released on bail.  The judge ensured compliance with the undertaking and acquitted the accused as the girl and her mother retracted their statements.

The above ruling is in contradiction with the spirit of POCSO Act. This act means to protect children from offences of sexual assault, sexual harassment and child pornography; not to give legality to child marriage or any such acts which are clearly illegal in India.  The marriage of an underage is a mockery of justice and the resilience of court on such matter is a grave wrong. Further in State v Iskhar Ahmed[3], J. Shalini Nagpal, Chandigarh Special Court held that  ‘[h]aving a love affair with the prosecutrix and having conversations with her, would not give a license to the accused to commit rape on her person or even to have sexual intercourse with her consent, as consent of the child to penetrative sexual assault is immaterial.’ This implies that the liability that exists in the POCSO Act is strict liability, i.e., doctrine of mens rea is not taken into consideration, which implies that the POCSO Act has confounded child sexuality with child sexual abuse. And this approach has already been criticized in English Law. R v Prince[4] is one such case.  In this case, Henry Prince was charged of having unlawfully taken Annie Phillips, an unmarried girl under the age of 16years, out of the possession and against the will of her father, contrary to Section 55 of the Offences against the Person Act, 1861. He was found guilty even though he pleaded, that firstly, the girl told him that she was 18, however, her father proved that she was 14 years, she also looked much older than a 16 year old and secondly, that the defendant bona fide believed her statement, was accepted by the jury. But in R v  K[5], wherein a man aged 26 years, was charged with indecently assaulting a 14 year old girl, which was in contradiction to Section 14 of Sexual Offences Act, 1956. The defendant pleaded that firstly, the activity between them was consensual and secondly, the girl had told him that she was 16 and that he had no reason to disbelieve her. In preliminary hearing, the judge ruled that the prosecution would be required to prove that at the time of the incident the defendant did not honestly believe that the girl was 16 or over. His case then went on to the Court of Appeal and then to the House of Lords which delivered unanimous judgement of not guilty. The court adopted the doctrine of mens rea and such discretion, while judging on cases, is also expected from the Indian Judiciary. Not giving regard to the doctrine of mens rea is like going back in time.

Another thorny issue that has received scant attention is whether couples under 18 years of age should be treated as juveniles in conflict with the law. The National Commission for Protection of Child Rights (NCPCR) had stressed on the need for the law to recognize consensual sexual exploration among adolescents by decriminalizing it when it is between:

  • Children above 12 years when the age-gap was less than two years and
  • Children above 14 years when the age-gap was less than three years.

It has failed to consider the nuances of age, age difference, and child development. In Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development[6]the Constitutional Court of South Africa confirmed that provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which criminalized consensual sexual conduct of adolescents above 12 years and below 16 years, were unconstitutional. The imposition of criminal liability on adolescents engaging in consensual sexual conduct was opposed to the right to dignity, right to privacy, and contrary to the best-interests principle. It observed that the provisions ‘… criminalize a wide range of consensual sexual conduct between children: the categories of prohibited activity are so broad that they include much of what constitutes actionable undertaken in the course of adolescents’ normal development.…the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents.’[7]

There is a need to  revamp this act with respect to certain technicalities but the act in itself has a pious goal and its provisions are child friendly, which shows that the welfare of children has been given due consideration.

References:

[1]Love and Sex in the Time of the Pocso Act 2012, Swagata Raha, available at  http://www.tarshi.net/blog/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/

[2] Decided on 13.8.2013 by Judge T.S. Kashyap. SC NO. 78/2013.

[3]  Decided on 3.12.2013 by Shalini Singh Nagpal, Judge, Special Court, Chandigarh.  SC No. 0300064 of 2013.

[4] [1874-1880] All ER Rep 881

[5] [2002] 1 AC 462.

[6] [2013] ZACC 35. Decided by the Constitutional Court of South Africa on 03.10.2013.

[7] Ibid (n 1)

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