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Vinamar Jain - 1
Vinamar Jain - 1
By – VINAMAR JAIN
The Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) was enacted as an
umbrella legislation to prevent and punish all forms of sexual offences against children. The
legislation is result of a sustained effort of the civil society organizations in making India a safe
place for children and provides for not only strict punitive measures but a well thought after
welfare mechanism is also part of the legislative scheme. The legislation not only defines varied
offences of sexual character that may be committed against children, it also lays down child
friendly procedure at every stage of the process of its implementation. In doing so, the POCSO
Act has even deviated from certain established principles of criminal justice system, the most
important being presumption of innocence. The POCSO Act raises twin-presumptions, one
relating to actus reus and the other relating to mens rea. Over the years, the true import and
connotation of these presumptions has drawn attention of the courts and efforts have been made
to interpret the provisions of POCSO Act relating to the presumptions in a manner that in spite of
the twin-presumptions, a fine balance is struck between the rights of the accused and the interest
of the community in seeing that the child sex abuser is convicted.
A study conducted by the Ministry of Women and Child Development, Government of India in
20071 revealed, what was an open secret, that more than half of children in India face some form
of sexual abuse by the time they turn 18 and even more shocking fact was that boys outnumber
girls in facing such abuse. This was probably the wakeup call for the Indian society which has
always remained in denial mode on the issue of child sexual abuse and the policy makers hitherto
living in their ivory castle, had to respond by enacting the Protection of Children from Sexual
Offences Act, 2012 (hereinafter the POCSO Act). The POCSO Act is an outcome of social
realisation that special measures are required for special circumstances. Curiously, this happened
almost after two decades of India's ratification of the United Nations Convention of Rights of
Child, 1989 (UNCRC) in 1992, mandating member States to take all possible measures to
prevent child sexual abuse.
The recent data on crime, compiled and published by the National Crime Record Bureau
(NCRB), paints a grim picture of child sexual abuse cases. As per the latest data available, the
total share of child sexual abuses cases registered under the POCSO Act account for more than
25% of all the offences against children. In the year 2017, there were 32608 cases of child sexual
abuse under the POCSO Act 2and the number grew by 18% to 39827 cases in 2018 3. The
conviction rate depicts an even more worrying trend and has kept hovering around 28%.
Passage of the POCSO Act is a genuine attempt by the legislature to create a desirable
environment by strengthening legal provisions to empower children and protect them from
1
Study on Child Sexual Abuse in India : 2007, available at <https :
//resourcecentre.savethechildren.net/node/4978/pdf/4978.pdf> (accessed on May 19, 2020).
2
Crime in India, 2017 at p. 307
3
Crime in India, 2018 at p. 307
sexual abuse and exploitation. The law aims to protect people under the age of 18 from crimes
such as sexual assault, sexual harassment and child pornography. All of these crimes are well-
defined and carry harsh penalties commensurate with their severity.4
4
The Southern Regional Conference on Protection of Children from Sexual Offences Act, 2012
doctors or mental health professionals. Continually having to repeat a harrowing story may itself
be a harrowing experience for children. The investigating officers and judicial officers must try
to avoid recurring interviews of the victim.
Videotaping the interviews as permitted under section 26(4) of the Act have the benefit of
reducing trauma on the child victim by limiting the number of interviews. Instead of the child
having to retell the account of the abuse multiple times to different agencies (law enforcement
officials, health care providers, social workers, and prosecutors), the interview can be videotaped
and passed along to the different agencies. This encourages and facilitates inter-agency
cooperation. Further Videotaping the interviews with child sexual abuse Victims also helps
increase the reliability of their statements.
The Preamble to POCSO provides that the law should be operated “in a manner that the best
interest and well-being of the child are regarded as being of paramount importance at every
stage, to ensure the healthy, physical, emotional, intellectual and social development of the
child.” However, as the girls are made to drop out from their schools in order to engage in a
matrimonial relationship at an early age, the intellectual and social development of the child
bride is restrained. Also, due to their exploitation at the hands of an adult husband, their physical
and emotional well being is endangered which will turn,deteriorates their health to a large extent.
So, in order to ensure the best interest of child, the need of the hour is to abolish the practice of
child marriage.
Earlier, exception 2 to section 375 of Penal Code, 1860 provided that sexual intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Thus, sexual intercourse with a minor wife between 15 and 18 years of age was not considered as
rape. This was in direct contravention to section 5(n) of the POCSO Act, 2012, as the act of the
husband constituted aggravated penetrative sexual assault and was punishable under the Act.
Thus, the Act criminalised sexual intercourse in child marriages. However, due to the anomaly
created between IPC and POCSO, section 42-A was inserted in the Criminal Law (Amendment)
Act, 2013 which provided POCSO with an overriding effect over the provisions of IPC. But the
court still continued to give benefit of exception under IPC as can be witnessed in Yunusbhai
Usmanbhai Shaikh v. State of Gujarat 5or Mujamil Abdulsattar Mansuri v. State of Gujarat. This
lacunae has been filled by the Supreme Court in its recent landmark judgement of Independent
Thought v. Union of India which read down this exception and held that sexual intercourse by a
man with his own wife, who is below the age of 18 years is rape. Thus, both the POCSO and IPC
were harmoniously constructed such that any form of sexual intercourse by a man with his wife,
who is below 18 years of age, can be penalised and thus, aid in the prohibition of child marriage.
Finally respite arrived to the family in April 2018 in the form of a court order pronouncing
Asaram guilty of the rape charges and he was given life imprisonment7
6
https://www.indiatoday.in/india/story/asaram-bapu-jodhpur-hc-rape-case-1602214-2019-09-23
7
“Asaram Rape Case Verdict: Godman Sentenced to Life Imprisonment till Death”, The Economic Times (25-4-2018)
<https://economictimes.indiatimes.com/news/politics-and-nation/asaram-verdict-today-security-beefed-up-in-3-
The POCSO is an excellent piece of law. However, there are some flaws in the law that
undermine its aim and must be addressed in order to fully implement the law. There is a need to
change the act, and a differentiation between situations involving minor girls under the age of 16
and cases involving minor girls over the age of 16 must be made. It is important to amend this
statute in order for it to fulfil its objective. Teens in relationships are a common occurrence in
today’s culture, and those who are mature enough will receive parental support. Unfortunately,
the children do not receive the support that they require from their parents. Instead, parents make
it more difficult for children to have a normal existence. Understanding the society in which we
all live is critical. Parents must understand that their daughter’s life can be ruined if she is
abused. Any adolescent who is in a relationship cannot be severely punished. Even the family of
a minor girl cannot sabotage the young man’s prospects by abusing the POCSO. In addition, in
India’s laws relating to sexual intercourse, this act is gender prejudiced. As a result, POCSO
must be redefined in light of current societal requirements and conditions.
Conclusion
Young kids are a nation’s most valuable asset, and it is the responsibility of the entire society to
care for and nurture them. While the POCSO Act is a positive start in the right direction, there is
a pressing need to enhance key aspects of its implementation as POCSO is being misused to
settle Personal score. It is vital to have a cross-check of the complaint that has been registered
under POCSO act.Our legal system has long been plagued by the abuse of even the most strict
legislation to serve one’s own goals, which are almost always bad. POCSO has also shown to be
no exception. However, the Act’s main goal is to create a clear foundation for dealing with the
threat of child sexual abuse and bringing perpetrators to justice.As long as crime exists, the law
must be in place. Meanwhile, procedures must be developed and rigidly enforced to entirely
abolish the threat of false allegations and the devastating repercussions that follow in order to
ensure that the Act’s actual meaning and purpose are not lost due to its gross violation.