The Protection of Children from Sexual Offences (POCSO) Act was enacted by the Parliament of India in 2012. The Act was formulated to provide a legal framework for the protection of children from sexual offenses, exploitation, and pornography. It aims to safeguard the rights and interests of children by addressing different forms of sexual abuse and harassment they may face.
SOCIO – HISTORICAL CONTEXT OF POCSO ACT
Prior to the Protection of Children from Sexual Offences Act (POCSO) 2012, there were various legal reforms and social justice movements aimed at protecting children’s rights. Some of these are listed below.
Constitutional Support: The Indian Constitution provides specific provisions to protect the rights and ensure the welfare of children under Articles 15(3) and 39(e). Article 15(3) of the Indian Constitution allows the state to make special provisions for children. Article 39 (e) is a directive aimed at safeguarding the tender age of children against abuse. These provisions form the basis of various child protection laws and policies.
Legislative changes: Before POCSO was established, India had several laws to protect children, such as the Immoral Traffic (Prevention) Act, 1956 is a law in India that seeks to combat and prevent human trafficking and commercial sexual exploitation, Juvenile Justice Act which is a legal framework that deals with the protection, care, and rehabilitation of children in conflict with the law, enacted in 2000, The Goa Children’s Act, 2003, enacted in Goa – unique as the first and only state to work towards a specific law on children’s rights and interests, and the Indian Penal Code which is the official criminal code of India; a comprehensive code intended to cover all substantive aspects of criminal law, with gender-specific provisions related to sexual harassment. These provisions consider the specific vulnerabilities and circumstances faced by women, addressing their protection and rights comprehensively, however, there was a need for specific legislation to comprehensively address child sex offenses, leading to the enactment of the 2012 POCSO Act.
2007 report from the Ministry of Women and Child Development
There was an influential and interesting 2007 report on Child Abuse, by the Ministry of Women and Child Development, which shows that State’s interest and investment in understanding the context and prevalence of Child Sexual Abuse, and outlining steps for action, prevention and redressal.
The report intended to establish that child abuse is prevalent, and to provide data and information to stakeholders, to support the government to formulate legislation, schemes and interventions to deal with the problem, while highlighting gaps requiring further research.
One of the stand out findings of the study was that of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse, among them 52.94% were boys and 47.06% girls, which was contrary to the general perception at the time. The study also revealed that while Child Sexual Abuse (CSA) may begin as young as 5 years old teenagers are most vulnerable. The report also indicated that a majority of the incidents were carried out by persons known to the child, again something that challenged existing ideas around the topic.
This report also suggested gaps in reporting behavior and mechanisms that required to be addressed. According to the study, majority of children subjected to sexual assault (72.1%) kept quiet and did not report the matter to anyone. Among those who reported, the majority of children shared the incident with their parents followed by brother and sister. However, only in 3.4% cases was the matter reported the matter to police.
Considering factors like reporting patterns, sample size, and methodology that may play a role to understand the data, we can imagine that prevalence of this issue may even be more widespread and nuanced than reported.
The report made recommendations, some of which are listed below:
– Policy and Legislation: Establish a separate National Child Protection Policy and a National Legislation to address child abuse comprehensively, covering various forms of abuse, exploitation, and reporting mechanisms. State governments should also set up State Commissions for the Protection of Rights of the Child. State legislatures enact laws that address various forms of child abuse, exploitation, and establish reporting mechanisms, promoting child protection and accountability.
- Child Protection Scheme: Develop a national scheme for child protection that identifies vulnerable families and children, prevents vulnerabilities, and provides services for those in need, building upon existing legal frameworks like the Juvenile Justice Act.
– Child Participation: Encourage children’s participation in decision-making processes and involve them in various aspects of child protection.
It also provides specific recommendations for children in schools, children at work, and children in institutions, focusing on tailored interventions for these different contexts.
Overall, the report emphasized the importance of creating a comprehensive and supportive environment for child protection through legal measures, awareness campaigns, education, and collaboration among all stakeholders.
NEED FOR THE POCSO ACT:
The need for legislation like the POCSO Act arose because existing legislation is inadequate to comprehensively address child sexual abuse (CSA). Prior to the establishment of POCSO, child sexual offenses were primarily dealt with under the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC). However, because these provisions were not designed to protect children from sexual abuse, they have some shortcomings:
1. Limited Definition: The IPC had general provisions on sexual crimes that did not adequately cover the special vulnerabilities and circumstances of child victims. Moreover, the focus being on gender specific crimes responding to vulnerabilities faced by women in society within the IPC, might lead to a gap in addressing sexual harassment experienced by boys. Sections like 354A, 354B, and 375 primarily address crimes against women, potentially leaving boys’ cases less addressed. This gap can result in inadequate legal recourse and societal recognition for boys who experience sexual harassment, emphasizing the need for more inclusive legal provisions.
2. Lack of child-friendly trials: IPC and CrPC trials did not have provisions and guidelines to institute child-friendly measures and procedures.
3. Inadequate Penalties: Penalties for child sexual crimes were not as severe as needed to effectively deter offenders.
4. Low Conviction Rates: Conviction rates in child sexual abuse cases are relatively low due to the difficulty of gathering evidence and protecting child witnesses.
HOW DOES POCSO ADDRESS THE GAPS MENTIONED ABOVE?
The POCSO Act aimed to address these gaps and provide children with comprehensive legal protection from sexual offences. Some specific provisions that aim to bridge the gaps are listed below :
- It provides a comprehensive legal framework to address child sexual abuse, adopting a gender-neutral lens.
- It defines various offenses, lays down procedures for investigation, and sets up special courts for speedy trials, specific to the context of children.
- It emphasizes the importance of raising awareness about child sexual abuse and its reporting.
- It encourages the establishment of awareness programs to educate children, parents, and communities about the issue and how to report abuse.
- It ensures child-friendly procedures during the investigation, trial, and court proceedings. It allows for the child’s testimony to be recorded in a comfortable and non-intimidating environment to minimize trauma.
- The Act recognizes the need for support systems for child victims. It mandates the appointment of Special Public Prosecutors and provides for the creation of Child Welfare Committees and Protection Officers to assist the child throughout the legal process.
- It focuses on prevention through education and awareness. It encourages the government and NGOs to carry out campaigns and educational programs to sensitize children and adults about child sexual abuse and ways to prevent it.
- The Act addresses reporting barriers by ensuring that any person, even without a specific complaint, can report suspected child sexual abuse. It also imposes penalties for false reporting to discourage misuse of the provisions.
Overall, the POCSO Act plays a vital role in addressing child sexual abuse in India by providing a legal framework, support mechanisms, and prevention strategies to safeguard children’s rights and well-being. However, continuous efforts are needed to ensure effective implementation and constant improvement of the system.
Considering the grave state of children’s safety in India, where incidents of child sexual abuse are distressingly common, the provisions of the POCSO Act, and spreading awareness about them becomes even more crucial.
Increased awareness specifically amongst stakeholders working with and associating with children, and rigorous implementation are essential to protect vulnerable children, ensure justice for survivors, and create a safer environment for all children in the country.
Overall, through a comprehensive breakdown of the POCSO Act we can gain insights into its strengths as well as identify areas where improvements are needed to ensure better protection for children against sexual offenses in India.
WRITTEN BY – Anjali Sharma, collaborating with Rosanna Rodrigues