The Protection of Children from Sexual Offences Act, 2012 (the "Act") is a special statute laying down a comprehensive law that aims to protect children from offences of sexual assault, sexual harassment and pornography. The Act is enacted in adherence to Article 15(3) of the Constitution of India, which empowers the state to make special provisions for women and children. Article 15(3), Articles 39(e) and 39(f) of the Constitution states that the tender age of children must not be abused, and they must not be forced to enter avocations due to economic necessity. The Act further provides that the children must be provided with ample opportunities and facilities to develop in a healthy manner, and their childhood and youth are protected against exploitation.
- Objective of the legislation:
While cases of abandoned children, physical abuse and torture, drug addiction etc. are routine, of late, there has been an increase in the number of cases of sexual assault. The legislative intent behind the enactment can be culled out by the Act itself, which ensures that the law operates in such a manner that the best interest and well-being of the child are regarded as being paramount. The Act further provides for dignity, rights and best interest of the child, safety, non-stigmatizing semantics, equality, non-discrimination and natural justice.
The Act defines "sexual offences" in very broad terms and places the burden of proof on the accused. Further, it prescribes special child-friendly measures for investigations and trials and provides for the child's safe custody.
The Act recognizes that it is necessary for the child's proper development that their right to privacy and confidentiality be protected and respected by all means and through all stages of a judicial process. This necessarily implies adequate care, protection, development, treatment, and social re-integration by adopting a child-friendly approach in adjudication and disposal of such matters in children's best interest to rehabilitate, reintegrate, and assimilate the victims in civil society.
- Salient features of the Act:
Trial In Camera: The entire trial shall be conducted in camera, i.e., behind closed doors in the presence of a person; in whom the child has trust and no member of the public or an advocate who is not connected with the case shall be present in Court.
Child Victim should not be called repeatedly: The child shall not be called repeatedly to the Court to give evidence.
Confidentiality: The Court, Parties and Advocates involved shall not reveal the identity of the child. The child's identity includes the family's identity, details of school, relatives, neighbourhood and other information.
Examination at another location: The Special Court may order that the examination of the child may be conducted at an alternate location.
Onus of Proof is on the Accused: The Act states that the Special Court shall presume that the Accused has committed/abetted/attempted the offence unless s/he proves otherwise. Further, the Special Court shall presume that the accused had a culpable mental state at the time of committing the offence, unless s/he proves otherwise. The defence has to prove that the Accused had no culpable mental state beyond reasonable doubt. Thus, the Act mandates culpable mental state on the Accused unless rebutted by cogent facts. As such, consent is construed to be the unequivocal voluntary agreement where the person has, by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the Act contemplated in the section(s) of offence.
The Act also provides that the defense raised by the accused should be stringently scrutinized for the purpose of rebutting the assumption of culpable mental state and a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when a preponderance of probability establishes its existence.
Compensation to be awarded by the Special Court: In addition to punishment, the Act empowers the Court to prescribe payment of interim or final compensation to the child for immediate rehabilitation of the child in relation to physical or mental trauma caused to the child.
Interim Compensation: The Act also provides power to the Court to grant interim compensation on its own or upon an application filed by or on behalf of the child to meet immediate needs of relief and rehabilitation. The amount paid shall be adjusted against final compensation if any.
Final Compensation: The Act also empowers the Court to grant final compensation where it believes that the child has suffered loss or injury as a result of the offence. Pertinently, such compensation may be directed to be paid even if the case ends in acquittal, discharge or if the accused cannot be found or identified.
Consideration for such Compensation: Type of offence, gravity of abuse and severity of mental or physical harm/injury on the Child; expenditure incurred or likely to be incurred on medical treatment; loss of educational opportunity, including absence from school; loss of employment including absence from place of employment; relationship of the child to the offender; whether the abuse was a single isolated incident or whether it took place over a period of time; child pregnancy; contraction of STDs or HIV; any disability suffered; financial condition and any other factor contribute to determine the quantum of compensation awarded to the Child-victim.
Prohibition of Disclosure of Identity: The Act mandates that no newspaper, magazine, news-sheet, or audio/visual media or other forms of communication regarding any inquiry or judicial proceeding shall disclose the name of the child, school or address of the child, or any other information regarding a child in conflict with the law or a child in need of care and protection or child victim or child witness.
Designation of Courts to try matters: The offences under this Act are triable by a Court of Session that shall be a Special Court.
Penalties: The penalties involve stringent punishment for the aggressors with mandatory sentencing of not less than seven years up to life imprisonment for heinous offences.
Child Welfare Committees (CWC): The Police are mandated to inform the CWC about every FIR recorded under the Act for maintaining a proper record and further monitoring. The CWC maintains proper documentary evidence of the victims' age and condition, and if there is no documentary evidence, age verification is conducted.
- Challenges before the Investigating Agency:
The Police Authorities perennially face challenges in recording the statement of the child and in conducting the medical examination of the victim(s) as the child feels inhibited and the parents too, hinder the process. Police, often lack the infrastructure required to follow all the provisions stipulated under the Act and the media operating with the sole agenda to sensationalize matters poses an impediment in keeping the identity of the victim confidential. There is inadvertent pressure from them to provide daily information regarding the progress in investigations, and such excessive media exposure results in disclosing vital clues regarding the victim and their family through which the reporters can identify the victim. Further, pressure from social workers also derails the judicial process and poses as a challenge to elicit accurate information. These third-party agencies also lack consistency. They often do not provide accurate information or data about the prevailing situation, and their engagement with the issue is fleeting.
The stigma leads to some victims relocating without informing the investigating officer and frequently, the victim becomes untraceable.
The doctors examining the victim often use archaic methodology and terms to draw up the medical report, which weakens the prosecution case. The chain of custody with regards to medical evidence is habitually compromised resulting in a sample reaching the forensic laboratory after it has become unfit for testing, resulting in loss of crucial evidence of the prosecution. In most hospitals, the victim and Police are made to wait for a long time, generally 2-3 hours, before the medical examination commences as no special arrangements are made to treat victims of sexual violence on an urgent basis. Also, the examining doctors are frequently transferred which causes problems at the time of trial as the deposition is challenged during cross examination.
However, mitigating efforts are also being undertaken as under the amended law. S. 357 C CrPC states that medical aid and treatment has to be provided free of cost in cases of sexual violence, including, inter alia, tests such as X-ray, MRI, etc. Furthermore, non-treatment of a victim by a hospital is an offence punishable with imprisonment for a term which may extend to one year or fine or both under S. 166B CrPC.
- Practice, Procedure and Loopholes which derail the Act
Though the Police is mandated to record an FIR immediately, logistical issues and attempts to "settle" the dispute derail the Act's prescribed process. Many instances have also been brought to the fore where the Police, instead of lodging an FIR, have tried to arrange the marriage between the victim and the accused to save the accused from the ignominy of facing the criminal trial. Such illegal practises are unwarranted and should be deterred, especially since underreporting of such cases is the norm.
Although the Sakshi Guidelines have stipulated that all questions of cross-examination must be given in writing to the presiding judge by the defence and the judge must only ask relevant questions to the child; however, it has been noticed that this procedure is not followed.
Further, even though the Hon'ble Apex Court in Sheela Barse and Anr. v. Union of India had declared a child to be a national asset but we live in a country where a child has to encounter predators within the confines of their own homes. A recent January 19 2021 judgement of the Nagpur Bench of the Hon'ble High Court of Bombay provided for a loophole to protect a sexual offender1, laying bare the fallacies associated with the legislation. In a cruel irony, the Bombay High Court chose the National Girl Child Day to deliver this absurd interpretation of the POCSO Act.2
The concern, however, is not such rulings itself but the mindset with which it is arrived at. While the glaring inadequacy of the statute is a remark on the fact that India drafts loopholes in place of its laws, it lays open a debate on the adequacy of Judicial Officers to deal with sensitive subjects. The rural background of a majority of the victims is another major concern. The lack of awareness and lack of education already hinders access to justice and the upliftment of the rustic diaspora, as the implementation of the laws remains lackadaisical. Such factors are a major blow to children who cannot understand the nature of the act or the acuity to resist it.
It cannot be stressed enough that more than 99% of the cases of sexual violence go unreported in India as per the National Family Health Survey conducted in 2015-16; of those that do get reported, the conviction rate is abysmally low.3
As provided under the Constitution, children of tender age should not be subject to abuse. They should be given opportunities and facilities to develop in a healthy environment where their freedom and dignity are protected. However, the obstructions created in practically achieving this are multifarious and its achievement a distant mirage as the system is not appropriately victim/survivor-centric.
The children are ruthlessly subjected to India's daunting and formidable criminal justice system, without a holistic crisis intervention support mechanism. Since the courts are traditionally meant for adults; there is a need to reorganize such areas so that a child does not feel intimidated or traumatized as any lapse can re-victimize the child. The core issue is that the child-friendly procedures stipulated in the Act are not a reality on the ground. Most victims already belong to disadvantaged sections and are hence, disproportionately vulnerable.
Such lapses call for a concerted effort of the legislature and the judiciary to remedy this ignominy by appropriately dealing with the issues in a wider spectrum and perspective. In the extant circumstances, it is imperative that the statute is implemented with an iron hand and constant endeavours are undertaken to protect innocent children and rehabilitate the victims to ensure a life with dignity. Adverting to best practices while being cognizant of the challenges being faced is imperative for the purposeful interpretation of the Act. There is an urgent requirement for evolving a well-coordinated convergent model to ensure clarity in the roles and responsibilities of each stakeholder in the judicial process so that the child victim of sexual violence is duly protected while navigating the criminal justice system.
Further, all cases falling under the ambit of the Act; from the stage of the FIR till the stage of the final verdict should be stringently monitored, which will help both the investigating agency and the judiciary keep track of accurate statistics and identify the gaps. Necessary budgetary allocations must be made to improve the infrastructure and provide the necessary funds to comply with all the mandatory requirements stipulated under the POCSO Act.
There must be proactive mechanisms of redressal in the event it is found that there are lapses in the manner in which trials are conducted. Examining the system from the victim's perspective is essential providing quality standards in protection and support services which will help the child much more than a law with its primary focus on expanding the punitive scope with an intention of effectively addressing the crime for creating a ripple effect acting as a deterrent to society.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.