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 Attempt to provide holistic Support for child victim of abuse: Protection of Children from Sexual Offences (POCSO) Act 2012

 

The Protection of Children from Sexual Offences (POCSO) Act 2012 is a Central Legislation and is applicable to the whole of India except Jammu and Kashmir. POCSO Act intends to protect the child’s right to privacy and confidentiality through all stages of a judicial process involving the child and gives paramount importance at every stage to the principle of best interest and wellbeing of the child in order to ensure healthy physical, emotional, intellectual and social development of the child. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.

Penetrative sexual assault aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five sexual offences against children that POCSO Act targets at. This Act has also attempts to punish abetment of or an attempt to commit these offences. The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. This would also cover trafficking of children for sexual purposes.

The POCSO Act also provides an indicator to Police during investigation of cases registered under the Act. A child's statement now can be recorded even at the residence of the child or at the place of his choice and should be done preferably by a woman police officer not below the rank of sub-inspector. Failure of police to register an FIR in cases of child abuse would attract a criminal case on them thus, making it mandatory for police to register offence of child abuse.

Mandatory reporting of an offence under this Act suggests that any person (including the child) who has an apprehension that an offence under the POCSO Act is likely to be committed or has knowledge that an offence has been committed has a mandatory obligation to report the matter. Obligation has also been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities, to report a case if they come across materials or objects that are sexually exploitative of children. Further if there is failure of reporting than the person is liable to be punished with imprisonment of up to six months or fine or both. This penalty is, however, not applicable to a child.

As per this Act the medical examination of a child can be conducted even before a FIR is registered by the aggrieved party. This discretion is left up to the Investigation Officer (IO). The medical examination of a child is to be done only by a registered medical practitioner in a Government hospital or a hospital run by a local authority within 24 hours from the time of receiving information by the IO about the commission of offence. In cases where such practitioner is not available, the examination can be conducted by any other registered medical practitioner with the consent of the child or a person competent to give consent on his or her behalf. The medical examination now can be conducted in the presence of the parent or any other person in whom the child reposes trust or confidence.

The local police are now mandated to report cases registered under this Act to the Child Welfare Committee (CWC) within 24 hrs of recording the complaint. CWCs play a vital role under the POCSO Act. Every case of child abuse has to be mandatorily placed before the CWC. It is the duty of the CWC to decide on the case within 3 days time period and conclude whether the child should remain in an institution or be released to the family. The CWC must take into account the opinion or preference of the child along with the best interests of the child while making this determination.  Secondly, CWC should nominate a support person to assist the child during the investigation and trial of the case with the consent of the child or the child’s parent/guardian/other person in whom the child has trust or confidence. The support person could be a person or an organisation working in the field of child rights or child protection, or an official of a children’s home or shelter home having custody of the child, or a person employed by the District Child Protection Unit (DCPU).

The State Commissions for Protection of Child Rights (SCPCR) has been empowered and vested with the responsibilities of monitoring the implementation of the provisions of the POCSO Act 2012, as per the prescribed Rules, to conduct inquiries into matters relating to an offence under the Act and to report the activities undertaken under the POCSO Act 2012, in its Annual Report. Besides this, the Commission is empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The Commission now also can recommend interim relief, or make any other recommendations to effectively redress the matter to the state Government. They can also approach the High Court or Supreme Court for orders, directions, or writs. The Rules laid down in this Act also had defined the criterion of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy suffered by the subject as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.

The Act incorporates child friendly procedures for reporting, recording of evidence, during investigation and trial by the Special court of offences under POCSO.

Some of the child friendly procedures which are envisaged under the Act are as follows:-

 

Ø  No child to be detained in the police station in the night for any reason.

 

Ø  The statement of the child to be recorded as spoken by the child

 

Ø  Assistance of an interpreter or translator or an expert as per the need of the child

 

Ø  Assistance of special educator or any person familiar with the manner of communication  of the child in case child is disabled

 

Ø  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.

 

Ø  In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

 

Ø  Frequent breaks for the child during trial.

 

Ø  Child not to be called repeatedly to testify.

 

Ø  No aggressive questioning or character assassination of the child.

 

Ø  In-camera trial of cases.

 

Ø  For heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).

 

Ø  The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.

 

Ø  For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

 

Ø  To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the reporting of case. The SJPU or the local police are also required to report the matter to the CWC within 24 hours of recording the complaint, for long term rehabilitation of the child.

 

Ø  The Act casts duty on State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The POCSO Act of 2012 widely looks into developing support system for the child through the existing machinery i.e. the Child Welfare officer, CWC and the Commission and in providing child friendly atmosphere in the criminal justice system. The positive aspect of this Act is the appointment of the support person for the child who would assist the child during investigation, pretrial, trial and post trial procedure. The major challenge also would be convergence between different entities under different legislations. Secondly, the tug of war, would erupt as the Act makes it mandatory for all (including professionals) to report to Police about any offence defined under POCSO Act 2012. The recent decision of the Cabinet in a bill to reduce the age of consent for sex to 16 years will mean that the protection given under this law to protect children from sexual crimes will also be or restricted to the children who are of age 16 years. There is a fear that this would end up taking away safeguards available to victims under the POCSO Act, especially girls in the 16-18 age bracket. The benefits of POCSO Act would trickle down to the child only if this Act is implemented in its true sense and spirit by all the agencies.

Emidio Pinho

LL.M (Human Rights)