Ronica S. Dass

Ronica S. Dass

9 years of POCSO Act: Decoding the POCSO Act in the light of Recent Controversial Rulings & its Pitfalls

Introduction

Child sexual abuse which is covered by the POCSO Act in India is one of the most under-reported offence. Sexual Abuse and sex trafficking amongst children remains the most serious problems in India. If we look upon the data, we could see that in the last two decades there has been a relevant increase in the sexually transmitted diseases amongst children. Thus, the problem of child sexual abuse needs to be addressed with the help of less complicated procedure but more severe and stringent mechanism. The Protection of Children from Sexual Offences Act of 2012 was formulated to address these crimes of sexual exploitation of children.  The POCSO Act, 2012 is a gender-neutral legislation which defines a child as any individual who is below the age of 18 years and provides protection to all children from sexual abuse. The definition of child sexual abuse includes (i) penetrative sexual assault (ii) aggravated penetrative sexual assault (iii) sexual assault (iv) aggravated sexual assault (v) sexual harassment (vi) using child for pornographic purpose and (vii) and, trafficking of children for sexual abuse. The act provides for punishment with a maximum term of rigorous punishment for life and fine. The POCSO Act provides provision for avoiding revictimization and child friendly atmosphere through all of the stages of the judicial process. It provides child friendly mechanism for reporting recording and investigation of the offences, trial in camera so that the identity of the child is not revealed. Special courts are also incorporated under the POCSO Act which determines the amount of compensation to be paid to a child who has been sexually abused to put the money for the use of a child’s medical treatment and rehabilitation. But in spite of the enactment of this act it has its own limitation and loopholes which will be looked upon and addressed in the later part of this article.

Research Questions of Law/Facts

For addressing the loopholes in the POCSO Act the following questions are structured and attempted to be answered in the later part of this article.

1. Whether the amendment made to the Protection of Children from Sexual offences Bill, 2012 regarding increasing the age of consent to 18 years which was earlier 16 years of age is a regressive move?

2. Whether the mandatory reporting of FIR as per Section 21(1) of the POCSO Act, 2012 would curb Child Sexual abuse?

3. Who is obligated to bear the treatment cost in providing free medical care to the survivors of sexual violence if there are no proper facilities or it involves a costly procedure?

4. Whether Consummation of Child Marriage is allowed for the purposes of the POCSO Act and what steps are taken to prohibit the same?

5. Who is responsible to ensure and take reports with respect to whether the investigation of the POCSO cases were conducted strictly adhering to the provisions of the POCSO act?

6. Who is bound to receive the compensation in the case of death of the Victim?

7. When an aggravated assault is being done to a victim by a person who is in position of power for example, police officers or civil servants, how will they be tried under this act?

8. Whether death penalty introduced under the POCSO Act would have a deterrent effect in the commission of this crime?

Certain Loopholes concerned with the POCSO Act to be addressed

1. Data Management Challenges: The most important challenge is with respect to the management of the data system in the context of monitoring of implementation of the POCSO Act because the Information Management system do not provide any data as to how many children have received the help from any authority concerned, the lawyer the counsel, etc or how many of those have received the interim/final compensation. Certain crucial information related to a case is not reflected and available on a court’s website. Thus, there is a growing need for the data management system to cater to the needs of the individual with respect to the growing need for sociological Psychological and legal research that will help in strengthening the children’s access to service and justice. This lack of standardized information makes it very difficult to assess the extent of the child sexual abuse as well as the factors contributing to the increase or the decrease of the incidence. For example, it is difficult to say as to what proportion of the increase in the sexual crimes against the children is the result of reporting or due to other factors such as religion or caste, physical or mental ability.

2. Publication of Data by NCRB: – Another significant and related point is with respect to the streamlining of data by NCRB as to maintaining data on how many cases are being actually dealt by the special courts, and how many of the children have received access to justice through the same. Therefore, there is a requirement for a better coordination between the NCRB and the states/Union Territories so that there is an improvement in the data collection as well as an increased capacity of material resources.

3. Raising the Age of consent from 16 to 18 years: – Before the amendment (Criminal Law Amendment) Act of 2013 the IPC stated that the sexual intercourse below the age of 16 years of age amounted to rape when committed upon a woman. Now, the POCSO Act has increased this age of 16 years to 18 years. Therefor now any sexual activity which is described under POCSO Act with a child above the age of 16 years will be an offence, even if such an activity is consensual. This might become a tool in the hands of patriarchy and religious bias.

4. Mandatory Reporting of Child Sexual Abuse: Registering an FIR may not always be in the best interest of a particular child therefore this registration may serve its purpose fully because there are high chances of circumstances that that family might report the case because of many reasons. Under the POCSO Act the mandatory reporting punishes a person who has knowledge of commission of the offence, but does not report the same to the police. As per the Act “Any person who fails to report the commission of an offence shall be punished with imprisonment of either description which may extend to six months or with fine or both”. The punishment is more severe in case of non-reporting by “any person being in charge of any company or an institution in respect of subordinate under his control”. The POCSO Act obligates “personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities” to inform the police of “coming across any material or object which is sexually exploitative of the child (including photographic, sexually-related or making obscene representation of a child or children) through the use of any medium”, and the failure to do so is also an offence. This provision is a contentious issue because the family or the victim might be reluctant to lodge the complaint at the first place and might not be ready to do the same. Thus alternatives like empowering a child through counselling or facilitating engagement of support of support structures, therapeutic sessions etc might be more enhances at greater level because the challenges in dealing with such type of cases are more at a social level. One of the study conducted by HAQ at Delhi in the course of their study with respect to child sexual abuse cases claims that Eight adult survivors, All of whom had been subjected to sexual abuse as children multiple times, and none reported it to the police or sought legal action against the perpetrator(s) at any point of time. The common thread in all these cases is that the fear of not being believed, social stigma, protecting family from dishonour or pain, confusion and self-blaming held them back from disclosure for many years.

5. Lack of awareness and Lack of Human Appointed Resource: Another issue is with respect to the stigma attached to it that does not lead to any disclosure. The reason being lack of total awareness & lack of human assisted support and counselling for the same because most of the survivors end of internalising the guilt and shame attached with it, without awareness about the issue among the public and the enforcement agencies, the issue could not get resolved. Psychological support to enable a child’s emotion is crucial which may help in overcoming the apprehensions on reporting of the access. Thus, whatsoever might be the provisions of the POCSO be it stringent and non- ambiguous, the important factor to be looked upon is the establishment of the support infrastructure and human appointed resources at the local level which will encourage the survivors to seek support easily and that the child is assured of the support through them. Only then will a child’s family and the child would un-hesitatingly would register an FIR.

6. Failure to Appoint a Support Person: As per Rule 4(7) of the POCSO Rules, the child welfare Committee may provide a support person to render assistance to child through the process of investigation and it is the responsibility of the police to keep the support person informed about the developments including the arrest of the accused, the applications filed and other court proceedings (Rule 4(11)). However, most of the bail orders of the special court do not reflect the appointment of a support person. The support of support person is very crucial as it portrays the circumstances of a child its family situation, vulnerabilities to the Special court to make a decision which would not be detrimental to interests and safety of the child

Decoding the Act with reference to the Controversial Court Rulings on POCSO Act

The Nagpur Bench of the Bombay high court in the case of Satish versus State of Maharashtra which was presided by the single judge Justice Pushpa Ganediwala had earlier ruled that there must be a “skin to skin contact” with a sexual intent to constitute an offence of sexual assault under the protection of children from sexual offences Act. The accused was originally convicted b the Trial court under the POCSO Act and the IPC. The accused then challenged the conviction and approached the high court wherein the High court observed that pressing the breasts of the child without removing the top does not fall into the category of sexual assault as defined under Section 7 of the POCSO Act as “with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

As per the Bombay High Court, in the above case had earlier said that the two essential ingredients to be proved for a case to fall under section 7 of the Act should 1) sexual intent; and 2) touching of the vagina, penis, anus, or breast of the child. With respect to the second ingredient, the court found that without any evidence of disrobement or skin-to-skin contact, an offence under section 7 is not made out after which the Bombay court had acquitted the convict under the POCSO Act and held the accused liable under Section 354 of the Indian Penal Code. Under this section the punishment is only for 1 year but under POCSO Act it carries a punishment of imprisonment between 3 to 5 years. The Supreme Court now has ordered a stay on the ruling claiming the judgement to be unprecedent and might set a dangerous precedent. Now the judgement has been stayed, which means it cannot be invoked as a precedent.

Similar controversial ruling was of the case of Libnus versus the State of Maharashtra which was before this ‘skin to skin Judgement’, wherein the same Judge, Justice Pushpa Ganediwala had acquitted a man of sexual assault under the POCSO Act who had opened the zip of pants while he was holding the hand of a girl below the age of 12 years of age whom he had asked to come to bed with him.

 The “Physical contact” is not a distinct requirement where an accused has touched the vagina, penis, anus, or breast of the child with sexual intention. This interpretation has been supported in one of the Andhra Pradesh High Court Judgements in the case of Mondi Murali Krishna Versus Duma Hanisha Naga Lakshmi[1] which is a case relating to sexual assault and sexual harassment of a girl has held that the word “or” divides section 7 of the POCSO Act into two parts, the first deals with touching private parts of a child with sexual intent and the second deals with any other act with sexual intent which involves physical contact without penetration and which also constitutes an offence of sexual assault. In other words, touching a private part of a minor with sexual intent is therefore an offence. This understanding of the term “sexual assault” is making a perverse shift away from the existing understanding of the courts in India.

In one of the cases of High court of Himachal Pradesh in the case of Jagar Singh son of Rodha Ram Versus the State of Himachal Pradesh[2] which was a case registered under Section 354(A) of the Indian Penal Code and Section 8 of the Protection of Children from Sexual negated the requirement of skin-to-skin contact to invite section 7 of POCSO Act. The court in this came to the conclusion that even touching of the vagina, penis, anus or breast of the minor child while the minor is wearing clothes would be sufficient to attract the provision under the POCSO Act.

Under the Indian criminal laws fail to explicitly define “touching”, thereby leaving the scope for ludicrous interpretations as well as perverse findings like in Satish versus State of  Maharashtra & Libnus versus the State of Maharashtra. Therefore a clear stipulation of the terms in the Indian codes is required to prevent farcical interpretations in the future and would set a bad precedent in law and also such interpretations trivialise sexual contact with minors. The court should charge the accused simultaneously under IPC and POCSO Act. In one of the judgements of the High Court of Kerala in the case of Geeta versus the State of Kerala wherein the accused took the victim of 11-year-old to the locker room and had touched the private parts of the girl bail was granted to the accused by the court below holding “that the accused has touched the body of the victim girl only over her dress and that detention of the accused is not necessary for continuing the investigation”. It was held by the High Court that the observations are erroneous and set aside the bail which was granted by the Sessions Judge and held the skin to contact is not an indicator to the severity of this crime.

Conclusion and Findings

The violence against the children violates the dignity of the children and robs them from their childhood. The child abuses cases are spread across the country which has impacted the children of all ages. Under the United Nation Convention on the rights of the children which was ratified by our country in the year 1992, it is obligatory in India that appropriate national, bilateral and multilateral measures are taken to prevent sexual exploitation and abuse of the children. Having regard to the obligation of the states under Article 15 and Article 39 of the Constitution that the POCSO Act was introduced for protection of children against sexual harassment etc. The Judges are therefore required to change their mindset and be sensitive in the matters of this nature because the lack of sensitivity would create a distance between those who seek Justice and the Justice provider. The court therefore should act in a manner and should be in consonance with the scheme and the spirit of the POCSO Act and seek for the welfare of the children. For instance, even though in the case of Satish versus State of  Maharashtra has now been granted a stay, in the initial instance it does invalidates the sexual abuse of children which would further stop them from reporting such crimes if they lose faith under the Indian Judiciary. The POCSO Act is enacted to protect the minors and young children from sexual office and creating a safe harbour for them. Sexual offences against children are quite severe due to the inherent vulnerability of the victim and the ability of an abuser to overpower them. Under a well settled law wherein two interpretations are possible, the interpretation which would favour the minors should be taken into consideration unlike the interpretation which was sought by the Bombay High Court initially a narrow interpretation of sexual assault would eventually hamper and violate the rights of the children and would do more harm and good. Various study show that the girls are predominantly the victims of these yet there comes attached with it a social stigma and the apprehension of the legal process which prevents them from reporting the abuse. Thus, there is a requirement for counselling session being available for such type of victims so that they are encouraged to report any such abuse and do not face any apprehensions. In case of boys, it is the fear of his sexual orientation sexuality and masculinity being questioned which leads to decline in reportage of case in case of boys. Another issue is with respect to sexual violence against third gender. Even after being anecdotal evidence, we will not be able to any recorded data. The reason being either the data do not get reported or the reports are not converted into formal complaints because of the stigma and the marginalisation of the third gender people which has left them voiceless invisible as well as vulnerable to abuse. The state and its machinery should be proactive in creating such an environment for the child that the procedures being followed are child friendly and at the same time providing proper relief and rehabilitation mechanism and other measures to them. A Concerted effort should be taken so that that public awareness is created so as to bring forward its ill effects and bring about social transformation against this issue.

The author now seeks to address the research question in an orderly fashion.

The POCSO Act has increased the age of consent from 16 to 18 years for children of all genders. Before 2012, the age of consent was 16 years as provided under the Indian Penal Code followed by an amendment to the Indian Penal Code through the Criminal Law Amendment Act 2013 which did the same. The author contends it to be a regressive move because then sexual activity below the age of consent would be sexual assault. Instead of focussing on age, the primacy needs to be given to the testimony given by the person. This move according to the author is not a regressive move but a backward move because it would lead to the prosecution of boys on the basis of complaints made by the girl’s parents even if there was consent made. Majority of nations if one looks at their legislations around the word has age of consent either 16 or below 16. Legal Instruments cannot solve complex issues unless and until it is accompanied by comprehensive sexuality education, autonomy of young people social support for young people and gender sensitive law enforcement.

The mandatory disclosure of offence and the provision of Mandatory reporting is also not appropriate because the children might get threatened by the accused at the time of sexual offence, or they either blame themselves and feel humiliated for the sexual offence, thus human support and counselling at the local level should be encouraged so that it can be sought by all the survivors, thus registering of an FIR might not always be in the interest of the child. A proper support mechanism should be provided to the child and the family and acknowledgement of the significance of child protection should be made. Psychological support to enable children’s emotion is crucial at this stage and the legal obligation of reporting can best be met when these reporting becomes a social norm and their fears, especially the fear of social stigma are addressed successfully. One side of the coin is the inability of the justice delivery system to respond to the dilemma and apprehension of the child, the other side being to subject the child to further trauma during the various stages of legal proceedings which is against the favour of child might have perverse consequences. Thus, the effectiveness of mandatory reporting of these cases should be taken into consideration

No hospital under the jurisdiction of Indian constitution can refuse to admit the victim of child sexual abuse for its treatment. This issue has been reemphasized under Section 23 of Criminal Law Amendment Act which inserts Section 357 C into the CRPC 1973 which states that all hospitals are required to provide free aid or medical treatment o the victim of sexual offence free of cost. Section 166B of the Indian Penal Code specifies that no hospital whether private or public shall deny any treatment to a rape victim, the treatment should be immediate. If there are no proper facilities the state should take the responsibility of reimbursing the costs because if the hospital would provide substandard medical treatment, it would deprive the survivor from a comprehensive treatment.

As per the provision under POCSO Act several powers are given to the special courts as per Section 33 of the Act to take cognizance of the offences, to create a child Friendly atmosphere, to ensure that dignity of child is maintained, but this is not enough and some checks and compliances at the local level is also required to ensure that compliances is followed at the local level. The Kerala High Court in the recent case of Bhanu Versus State of Kerala in case No. 1087 of 2019 has issued certain guidelines to be followed by the investigating authorities while dealing with POCSO crimes and cases and one of such important guidelines is that “the State Police shall designate a woman IPS officer in every district, to oversee and ensure that the investigations of cases arising under the POCSO Act are conducted strictly adhering to the provisions contained in the POCSO Act and the Rules made thereunder and having due regard to the guidelines formulated under Section 39 of the POCSO Act. If a woman IPS Officer is not available in a district, the State Police Chief would be free to designate one of the available IPS officers for the said purpose”. Such a step should be taken by each state Government to improve the system in the system in the state, to prevent the child from victimization and to make delivery of justice effective and meaning

The Supreme Court of India had noted that was no scheme for compensation that existed for the victims of the sexual abuse under POCSO and had ordered that victims under POCSO should be compensated under Compensation scheme for Women Victims/Survivors of sexual Assault/ other crimes of NALSA. However, there is no provision under the POCSO Act or under the NALSA’s Compensation Scheme for women Victims/Survivors of Sexual Assault/other Crimes, 2018 which provides for who will get the compensation although clause 8 of the NALSA’s compensation scheme which prescribes for “Factors to be considered while granting compensation” states one of the factor as “In case of death, the age of deceased, her monthly income, number of dependents, life expectancy, future promotional/growth prospects etc”. Section 33(8) of the POCSO Act prescribes “In appropriate cases, the Special Court may, in addition to punishment, direct payment of such compensation as may be prescribed, to the child for any physical or mental trauma caused to her / him or for immediate rehabilitation of such child” but the term used in Section 33(8) is “child” i.e., a living child. Presently, compensation is decided by the special POCSO court and compensation is paid at the end of a case and is linked to judgment. Also, interim compensation is also ordered by special POCSO courts. Activists maintain that victim compensation should be independent of conviction in courts. The author contends that the compensation should not be dependent on any legal proceedings and the compensation should be given immediately to provide relief to the child and for that the victims and their families must be assisted by the NGOs to enable the families to get compensation as soon as possible. A friendly environment should be created in the court for such sensitive cases as well as proper support to the POCSO victims should be given at each stage because getting compensation is a matter of a right to the victim. The court must have a check and balance mechanism to ensure that the compensation is given to each victim

Next, addressing the question regarding what if the aggravated sexual assault is done by a person in authority. Clause (p) Section 9 of the POCSO Act defines aggravated sexual assault being committed by a person in authority as “whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else” and punishment for aggravated assault is prescribed under Section 10 as “whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine”. However, in the real-life scenario we do not see implementation of this provision if we look at the current case of Unnao rape case wherein a 17-year-old girl was gangraped in April 2017 and the accused was a member of Uttar Pradesh legislative assembly and was also a member of Bhartiya Janta Party in power in the State and at the Centre, we see that the case is still going on.

Lastly addressing the last question, the author contends and believes that introduction of death penalty will not act as a deterrent as there is no empirical evidence to suggest that death penalty has a deterrent effect over and above life imprisonment as per Law commission’s 2015 report on death penalty and instead there is a higher likelihood that the accused would rape and murder the victim to avoid getting caught & merely increasing the punishment for aggravated sexual assault is not enough.

END NOTES

1. http://haqcrc.org/wp-content/uploads/2018/02/implementation-of-the-pocso-act-delhi-mumbai-study-final.pdf

2. Ministry of Women and Child development, Study on Child Abuse: India.  Available from: http://www.wcd.nic.in/childabuse.pdf.

3. The Protection of Women from Sexual offences Act 2012: Sec 7; Rule 4.

4. POCSO Act – Providing Child-Friendly Judicial Process. Press information Bureau, Government of India.

5. The Criminal Law (Amendment), 2013.

6. The Constitution of India: Article 15; Article 39.

7. Behere PB, Satyanarayana Rao TS, Mulmule AN. Sexual abuse in women with special reference to children: barriers, boundaries and beyond. Indian J p. 2013;55:316– [PMC free article][PubMed] [Google Scholar].

8. Satish v. State of Maharashtra. Available from:

https://www.livelaw.in/pdf_upload/pressing-a-childs-breast-without-skin-to-skincontact-does-not-amount-to-sexual-assault-under-pocso-act-bombay-high-court 388064.pdf.

9. Libnus v. State of Maharashtra, Bom HC (2021); Criminal Appeal No. 445 of 2020.

10. Geetha v State of Kerala, Ker HC (2020); MC.No.1237 OF 2020(D).

11. Mondi Murali Krishna Versus Duma Hanisha Naga Lakshmi, [1] Criminal Revision Case No. 1970 of 2017.

12. Jagar Singh son of Rodha Ram Versus the State of Himachal Pradesh, Cr.MP(M) No. 1112 of 2014.

[1] Criminal Revision Case No. 1970 of 2017.

[2] Cr.MP(M) No. 1112 of 2014

*****

The author has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.

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Qualification: LL.B / Advocate
Company: M/s. Black Robes Legal (Advocates, Advisors and Consultants)
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Member Since: 24 Jun 2021 | Total Posts: 28
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