This Article is authored by Advocate Anil Malhotra.
With the repeated string of sexual abuse or rape of children being reported across the nation and a public outcry raging on the streets like molten lava flowing uncontrolled from a bursting volcano, the victimised and abused child suffers in silence. Traumatised, dejected and horrified family members of unfortunate victims find themselves helpless, confused and unable to cope up with the heinous crime. Even though on 22 May 2012, the Parliament passed the Protection of Children against Sexual Offences Act, 2012 (POCSO) and which came into force on 14 November 2012, this special law to protect children from offences of sexual assault, sexual harassment and pornography, remains an unimplemented law, unknown to most and beyond knowledge or information of those who need to apply it. Sadly, the result is that POCSO, an Act, which is a necessity in India where 40 percent of the population is below the age of 18 and where over 53 percent of children reportedly surveyed in 2007 stated that they had experienced one or more forms of sexual abuse, is not complied with despite being on the statute book. Rhetoric demands stiff penalties, expeditious new laws and fast track courts little realising that POCSO, as a wholesome law already says it all.
POCSO AND ITS CONTENT
Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children as the law did not make a distinction between an adult and a child. POCSO deals with sexual offences against persons below age of 18 years. A child has been defined as a person below the age of 18 years. POCSO defines “Penetrative sexual assault,” “sexual assault” and “sexual harassment” making the offence aggravated if it is committed by a police officer, public servant, staff member of jail, remand, protection or observation home, staff of a hospital or an educational institution or by a member of the armed or security forces. POCSO provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police who are required to make immediate arrangements for care and protection. The intent to commit an offence defined under POCSO is also punishable besides abetment or aiding the sexual abuse of a child. Special emphasis has been provided for trial in special children’s courts with speedy disposal and special procedures to avoid child not seeing accused at time of testifying.
AWARENESS OF POCSO
Despite POCSO laying down that the Central and State Governments shall take measures to give wide publicity through media including television, radio and print media and imparting periodic training to all stake holders on the matters relating to implementation of provisions of POCSO, the Act is relatively unknown. Shockingly, in the present most recent unfortunate rape case, the Delhi Police included the provisions of POCSO to the FIR reportedly after two days of the filing of the FIR on 15 April 2013. In the infamous APNA GHAR Rohtak shelter home case of May 2012, despite rampant allegations of child sexual abuse of over 100 inmates, reportedly, the provisions of POCSO are still not stated to have been invoked against the accused. Most child sex abuse cases are not booked under POCSO. Child sex offenders get away despite a stringent law. The Act is unknown. Indoctrination, training, familiarisation and actual application by police officers and other stake holders still remains a far cry. POCSO remains an Act of law in oblivion.
A STEP FORWARD
The passing of the salutary law is more than significant for a variety of reasons. It defines exclusively the crime of sexual offences against children and fulfils the mandatory obligations of India as a signatory to the United Nations Convention on the Rights of The Child, acceded to on December 11, 1992. For monitoring and implementation of the provisions of POCSO, the Act enjoins that the National Commission and State Commissions for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act, 2005 shall ensure the effective carrying out of the provisions of POCSO. The Supreme Court in hard hitting directions on 7 February 2013 has directed that all States are to ensure that the regulatory and monitoring bodies are constituted and made functional. However, till date, the fully functional Commissions are non-existent or effectively non-functional.
A LANDMARK JUDGMENT
Upon the National Commission for Protection of Child Rights (NCPCR) petitioning the High Court, in a path breaking judgment rendered on 9 April 2013, it has been directed that the States of Punjab and Haryana as well as Union Territory of Chandigarh shall ensure, that, State Commissions for Protection of Child Rights headed by a Chair person who should be a person who has been a Judge of the High Court, shall become fully functional by appointing Chairpersons and six members appointed through a transparent selection process. The High Court has further directed mandatory registration of all children homes, constitution and notification of children’s courts and appointment of special public prosecutors besides constituting a proper selection committee to make further selections of various committees to be set up for child welfare. Hence, the entire machinery of monitoring child rights has been galvanised. A further direction has been issued that the National Commissions and State Commissions shall start discharging their functions under POCSO for implementing its provisions and modules/ training programmes for sensitizing all stake holders on child rights and for dealing with cases in Children’s Court be also initiated in the Chandigarh Judicial Academy. It is now for the State Governments to implement this beneficial mandate and create an effective machinery to check heinous crimes of gross sexual abuse against children by enlightening all concerned about it. It is the duty of the State to now perform its obligations for the welfare of society.
THE NET EFFECT
The Justice Verma Committee Report in one of its conclusion on child sexual abuse holds “there is an urgent need to audit the performance of all institutions of governance and law and order. It is indeed necessary that we must now have external social audit for the sake of transparency. We also wish to make it clear that every case of a missing child must be registered as FIR”. The Committee further make suggestions of constituting “an oversight mechanism” through the High Court, special training needs programmes, sensitizing officials on sexual abuse of children and strict implementation of provisions of various enactments of child laws. Summing up, we need to consolidate our efforts and focus our energies on existing laws and not look to amending more laws and making still further newer laws, alien to our culture, society, habits, life styles and harsh realities of the common man. In so far child sex abuse is concerned, POCSO is a wholesome law. The Government must create the machinery to implement it and educate its officers besides all stake holders on what it contains. The remedy to handle the public outcry is by implementing POCSO. All child offenders must be charged, tried and punished in accordance with POCSO expeditiously. Speedy, stringent and relentless pursuit of POCSO is the remedy and a possible cure. The State must not waste its time in exploring alternatives when the answers exists in a law made by Parliament for these special offences against children, the most vulnerable section of society. Today’s children are tomorrow’s future. Let us protect them. The laudable endeavours of Late Justice Verma must find implementation.
CHILD FRIENDLY PROCEDURES ARE INCORPORATED IN POCSO
Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector. Evidence has to be recorded within 30 days.
No child to be detained in the police station in the night for any reason.
Police officer to not be in uniform while recording the statement of the child.
The statement of the child to be recorded as spoken by the child.
Assistance of an interpreter or translator or an expert as per the need of the child.
Child not to see accused at the time of testifying. The evidence of the child shall be recorded within a period of 30 days of the cognizance of the offence.
Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled.
Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
In case the victim is a girl child, the medical examination shall be conducted by a female doctor.
Child not to be called repeatedly to testify and frequent breaks to given to the child during the trial.
No aggressive questioning or character assassination of the child.
Trial to be in the special court in camera.