Editorials/Opinions Analysis For UPSC 21 January 2023

Editorials/Opinions Analysis For UPSC 21 January 2023

Contents

1. Evaluation of the POCSO Act’s Decade  
2. The Need for a Detached Approach in a Uniform Civil Code

Evaluation of the POCSO Act’s Decade

Context

• The Protection of Children from Sexual Offenses (POCSO) Act of 2012, which was passed after India ratified the UN Convention on the Rights of the Child in 1992, has been in effect for ten years as of November 14, 2012.
• The purpose of this special law is to address crimes involving the exploitation and abuse of children sexually that were either not clearly defined or not adequately punished.

Relevance:

GS Paper-2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Mains Question

In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge

POCSO Act, 2012

• According to the POCSO Act, 2012 and a number of IPC provisions, anyone under the age of 18 who engages in a penetrative sexual assault on a child faces “imprisonment for a term which is not less than seven years but which may extend to imprisonment for life, as well as liable to a fine.”
  • The POCSO Act considers the girl a “child” even though she is 16 years old; as a result, her consent is irrelevant, and any sexual activity is viewed as rape, subjecting it to harsh punishment.

Relevance of the Act

• Gender-neutral in nature: o In Chhattisgarh, male child victims made up about eight out of every 1,000 POCSO cases (0.8%), despite the National Crime Records Bureau not publishing data on male and female victims separately.
  • Despite the small reported number, it supports the public’s concern that the sexual exploitation of male children is a serious problem that has gone largely unreported.
• Greater public awareness: o Due to the POCSO Act’s inclusion of non-reporting as a specific offence, there is now sufficient public awareness to report cases of institutional as well as individual sexual exploitation of children.
  • As a result, it has become more challenging to conceal crimes against children.
• Storing child pornography has been declared a new offence: Storing child pornography has been declared a new offence.
• The duration of the inquiry
  • In addition, the POCSO Act does not contain a similar clause, so two months are required to complete the rape investigation (as in the CrPC).
  • Even though the intention is to speed up the investigation, it has led to two significant shifts in the industry.
• One, regardless of the stage of the investigation, there is a lot of pressure on the IOs to somehow submit a charge sheet within two months.
• As the Ministry of Home Affairs oversees POCSO cases through the Crime and Criminal Tracking Network & Systems (CCTNS) and State police headquarters, the IOs do not want to risk receiving internal punishment.

Criticism of the Act:

• Investigations Have Not Changed
  • The Code of Criminal Procedure continues to serve as the main source of guidance for the investigation of offences under the Act (CrPC).
  • Less Women in Police Force: The POCSO Act allows a woman sub-inspector to record the statement of the affected child at their home or another location of their choosing.
• However, since there are only 10% women in the police force and few women work in many police stations, it is practically impossible to adhere to this provision.
  • The focus is primarily on finishing the investigation: o The focus is primarily on finishing the investigation in two months, regardless of quality. The accused was given bail if a charge sheet was not filed within 90 days of their arrest.
    • The accused may now request bail right away following the filing of the charge sheet when one is filed within 60 days of the FIR (and not when the suspect is arrested).
    • As a result, the advantage of a quicker investigation belongs to the accused rather than the victim.
  • The accused is assumed to have committed the crime by the court:
    • According to the POCSO Act, the accused is assumed to have committed the crime by the court.
  • Age determination issue
    • Although the Juvenile Justice (Care and Protection of Children) Act governs how to determine a juvenile offender’s age, the POCSO Act does not include a similar provision for young victims.
    • Age estimation based on medical advice is typically so vague that minors are frequently shown to be major.
  • Absence of proper infrastructure o The admissibility of evidence recorded using any audio-video means will always remain a challenge in the absence of proper infrastructure to ensure the integrity of electronic evidence. Once a minor is proven to be a major, the probability of acquittal increases based on other factors, such as consent or no injury to private parts.

Did you know?

• In 2015, the Ministry of Home Affairs (MHA) unveiled a plan to establish a district-level Investigation Unit on Crime Against Women (IUCAW) with 15 police officers (at least one-third of whom must be female officers) and a second superintendent of police as its commander.
  • In Jarnail Singh v. State of Haryana (2013), the Supreme Court ruled that the aforementioned statutory provision should also serve as the foundation for determining age, even for children who are victims of crime.

Way forward:

• Sexual abuse of children is a very serious issue. A society where the most defenceless and innocent are routinely and horribly mistreated is a sign of a sombre situation that unquestionably calls for immediate intervention.
• To address the issues, the government must amend the POCSO Act.
• Other offences against children committed online, such as cyberbullying, should also be covered by the amendment.
• The Supreme Court ordered that special courts be established in the districts with more than 100 POCSO cases still pending within 60 days. This needs to be put into action right away.
• The importance of introducing sex education into schools and teaching kids about appropriate and inappropriate touching.

Conclusion

• The court never raises this presumption during a trial, despite how little relevance it may have given the victim’s young age, it has been observed.
• The anticipated rise in the conviction rate is unlikely to occur in these circumstances.
• In order to determine how much the POCSO Act has aided victims of sexual exploitation and what else needs to be done to ensure justice, it is time to review how it is being put into practise.

The Need for a Detached Approach in a Uniform Civil Code

Context:

• There are a number of issues that need to be resolved before any decisions are made, as evidenced by the recent resurgence of discussions regarding a Uniform Civil Code (UCC) in India.
• Since India’s independence, the concept of a UCC has been a divisive issue, illuminating the complex and delicate nature of the relationship between religion and law in the nation.

Relevance:

GS Paper-2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Mains Question

The implementation of a UCC in India is a challenging task that necessitates not only the backing of the nation’s political and social elites but also public acceptance of social change. Evaluate (250 words)

Important Points:

• Article 44 of the Indian Constitution allows for directive action as a state effort to obtain a UCC.
  • In its ruling in the Sarla Mudgal case (1995), the Supreme Court commanded the Union government to consider the steps it had taken to obtain a UCC.
  • All communities are currently governed by their own unique laws on a variety of civil matters.
    • The Hindu Marriage Act, Hindu Succession Act, Minority and Guardianship Act, and Adoption and Maintenance Act are the laws that apply to Hindus.
    • In contrast, Christians are governed by The Christian Marriage Act and Muslims are governed by Shariah law.
    • Regardless of religion, all marriages in India are governed by the Special Marriage Act, 1972.

What Is UCC Aiming For?

• A UCC aims to create a complete and all-encompassing body of personal laws that will uniformly regulate marriage, support, succession, guardianship, adoption, and other related issues in Indian society.
• As Ambedkar intended, it would encourage married couples to share in benefits and safeguard weaker groups of society.
• In the Shah Bano Begum case (1985), the Supreme Court made the observation that a UCC should aid in national integration by removing divergent allegiances to laws that have competing ideologies.
• Secularism, which in English refers to the division of church and state, is where the UCC gets its name. This refers to the separation of religion and state in Indian culture.
• The only Indian state that has successfully implemented a common code so far is Goa.

Recent Developments:

• In order to draught a proposal by May 2022, the state of Uttarakhand formed a five-member committee. Gujarat recently announced a UCC panel and followed suit.
  • Public interest litigation challenging the constitutionality of UCC panels in these two states was rejected by the Supreme Court.
  • The Kerala High Court recommended that the Centre seriously consider creating a uniform marriage code in December 2022 in order to advance general welfare.
  • In the Rajya Sabha, a private member’s bill that calls for a UCC suggests the formation of a national inspection and investigation committee for the creation and enforcement of the UCC.
• However, there is tension when deciding between enforcing universal morality and allowing for individual religious freedom.
  • In the John Vallamattom case from 2003, the Supreme Court expressed regret over the lax UCC implementation.
    • In its 2017 decision on the triple talaq, it reiterated the need for a UCC and noted that a common civil code would aid national integration by removing ideological inconsistencies.

A Look Back:

• The Constituent Assembly disagreed over a UCC as well.
  • Proponents of the idea that the state and religion were unrelated called for the UCC to be covered by fundamental rights.
  • They contended that a variety of personal laws derived from religious conviction would divide the state into impenetrable compartments and lead to a multiplicity of laws, with the common good of the country being subordinated to local interests.
• Others fervently argued that each person’s right to select a personal code should be a fundamental one.
• A UCC was classified as a directive principle by the fundamental rights subcommittee.
  • They upheld Ambedkar’s egalitarian secularism, allowing all communities to practise their religions freely.
  • It was anticipated that various personal laws would eventually be repealed and a UCC would then be enacted with the support of all parties.

Conclusion:

• Implementing a UCC in India is a challenging task that necessitates not only the backing of the nation’s political and social elites but also public acceptance of social change.
  • Due to the diversity of practises in India, a one-size-fits-all strategy, like those used in nations like Italy, the US, and the UK, may not be successful there.
• The current convoluted system of civil laws in India frequently causes delays and challenges when seeking justice. By streamlining the legal code and developing a more cohesive system, a UCC could address the problems brought on by the variety of personal laws. Currently, drafting a UCC’s specifics may present more of a challenge than successfully enforcing one. It would be advantageous to approach the problem from a distance and to tackle it piecemeal while taking into account the nation’s cultural and social diversity.