Why in news?
Police have registered a case under the Protection of Children from Sexual Offences (POCSO) Act against a teacher of a school at Panur in connection with the sexual abuse of a girl student of the same school.
All About Protection of Children from Sexual Offences (POCSO) Act, 2012
- The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
- The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
The Act provides for a variety of offences under which an accused can be punished. It recognises forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include:
- Penetrative Sexual Assault: Insertion of penis/object/another body part in child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
- Sexual Assault: When a person touches the child, or makes the child touch them or someone else
- Sexual Harassment: passing sexually coloured remark, sexual gesture/noise, repeatedly following, flashing, etc.
- Child Pornography
- Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault
The act is gender-neutral for both children and for the accused.
With respect to pornography, the Act criminalises even watching or collection of pornographic content involving children.
The Act makes abetment of child sexual abuse an offence.
Child-friendly process
- It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children.
- The Act has been criticised as its provisions seem to criminalise consensual sexual intercourse between two people below the age of 18.
Child Welfare Committee
- A sexually abused child is considered as “child in need of care and protection” under Juvenile Justice (Care and Protection of Children) Act, 2015.
- Police officer should therefore inform the Child Welfare Committee about every case under the Act within 24 hours. CWC can appoint a support person for the child who will be responsible for psycho-social well-being of the child.
- This support person will also liaise with the police, and keep the child and child’s family informed about progress in the case.
Contention around implementation of POCSO
Definition of child
- The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and doesn’t take into account people who live with intellectual and psycho-social disability.
- A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped.
- The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.”
- SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.
Contradiction with the Medical Termination of Pregnancy Act, 1971
- The POCSO Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation.
- Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police.
- However, under the MTP Act, it is not mandatory to report the identity of the person seeking an abortion.
- Consequently, service providers are hesitant to provide abortion services to girls under 18.
Mandatory Reporting
- According to the Act, every crime of child sexual abuse should be reported.
- If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.
Criticisms of Mandatory Reporting
- Many child rights and women rights organisation has criticised this provision.
- According to experts, this provision takes away agency of choice from children.
- There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate.
- Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention.
- It contradicts the right to confidentiality for access to medical, and psychological care.
Legal Aid
- Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure.
- In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits.
- Thus, the interest of the victim often go unrepresented.
Consent
- The law presumes all sexual act with children under the age of 18 is sexual offence.
- Therefore, two adolescent who engage in consensual sexual act will also be punished under this law.
- This is especially a concern where adolescent is in relationship with someone from different caste, or religion.
- Parents have filed cases under this Act to ‘punish’ relationships they do not approve of.
