POCSO: An Analysis of its innovations and shortcomings

By Janvi P Antony

Introduction

              The Protection of Children from Sexual Offences Act, 2012 or the POCSO Act came into existence and force in the year 2012, on Children’s Day. Its objective was to protect children from the different types of sexual abuse. Even though the international convention on the Rights of the Child had materialized in 1989, our country did not have a legislation for it till the year 2012[1].

            Before this Act came into force, the only legislations that protected the right of a child was the Goa’s Children’s Act 2003, and certain sections of the Indian Penal Code. These statutes and their provisions weren’t without their shortcomings though, as they hadn’t provided any protection to male children from sexual abuse nor does it define modesty, failing to also address sexual harassment[2].

POCSO as a Legal Innovation

            This Act is also a legal innovation regarding Indian law as both boys and girls can be victims of rape under POCSO, this is in stark contrast to how the IPC defines rape, as the IPC’s provision of rape limits its protection to just women; therefore this is a gender-neutral law. In addition to this, both men and women can be booked and punished for committing an offence under POCSO[3].

            Under POCSO, the categories of sexual offences punishable under it are

1.      Sexual Assault

2.      Sexual Harassment

3.      Using a child for pornography

Each of these sections are elaborated on with varying punishments depending on the severity of the Act, thereby distinguishing and detailing the punishments according to the Act. It includes punishments for Sexual Assault, Aggravated Sexual Assault, Aggravated Penetrative Sexual Assault etc. The Act realizes how people in positions of power have a higher chance of committing Sexual Assault and harassment, and adequately provides provisions for which to punish them on and takes into account the power dynamics that exist among people with certain status in society such as civil servants, and takes into account people who spend more time with among children while they’re in a vulnerable state for example a nurse taking care of a charge. The Act provides adequate punishments for these distinguished classes of people, as the Act understands how the positions and statuses can be misused[4].

How effective is the Act?

              An analysis has found that 43.44% of cases filed under POCSO end in acquittals and only about 14.03% of the cases end in a conviction. Therefore for every one perpetrator convicted, three are acquitted. Acquittals are easier to be awarded in comparison to conviction in every state in our country, for example, in Andhra Pradesh, for every one conviction, there are more than seven acquittals, and in West Bengal for every one conviction, more than five culprits are acquitted, even in a state like Kerala, with a relatively lower rate of difference between conviction and acquittal, the acquittals are still more standing at a percentage of 20.5 of the total disposals, and the conviction rate staying at 16.49% of the total[5].

             Of the 138 judgements showcased in a study, only six percent of the cases involved culprits who were strangers to the victims, 44% of the cases hadn’t identified the relationship between the victim and the perpetrator, almost 23 percent of the accused had known the victims, 3.7% of which were family members and 18% ex-romantic partners.

             According to the data published by the National Crime Record Bureau in the year 2021, 96% of the cases filed under the POCSO Act were cases where the perpetrator was someone that had a prior relationship to the victim, half of them being done by either a friend of romantic partners.

             It was also found that it took an average of 509 days for the disposal of a POCSO case to occur, which directly goes against the Acts provisions which call for the disposition of such cases in under a year. These forms of delays in justice and prevalence of administrative errors are detrimental to the fundamentals of the Act like how almost 23% of cases were disposed through the act of transfer from one court to another, which is about a fifth of all spaces, and as POCSO cases aren’t to be tried by regular courts, but POCSO special courts defined and created under the Act, the transfers indicate either administrative mismanagement or wrongful appreciation of facts by police. The percentage of cases disposed via transfer was originally around 8% in 2013, but in 2020, it was 42%. This hike does not inspire confidence for the future of the cases under POCSO, and may even promote the idea that the Act is ineffective in achieving its objectives[6].

Conclusion

              The POCSO was a very innovative legal statute given birth to in the year 2012. But since then, the execution of the provisions of the has come into some trouble, as it has been hindered by administrative bureaucracy, and ineffective appreciation of the facts of the case. The POCSO Act’s acquittal rate also has been seen to not be promoting any confidence within the system of the POCSO special Courts. The number of people that get acquitted also don’t inspire confidence as this shows that the Act’s stringent provisions are unable to properly be applied in court as the acquittal rate is typically more than fivefold the conviction rate. The POCSO Act needs to amend itself to become more efficient and even cover cases in the time allotted in the Act itself, rather than be stuck in an administrative bureaucracy putting the victims of such cases through unnecessary and unwelcome trauma and stress. The POCSO Act is the most prominent legislation in terms of Child Abuse and it has now been in effect for more than a decade, and with some amendments and work, this statute could go through with it’s aims and objectives better than ever before.

             This prominent legislation includes three forms of sexual crimes which could be done against Children/minors. There are however no aggravating, and mitigating circumstances with respect to the person committing the act, like there is in the BNS. For example, there are offences in the BNS which already exist within the Act, but include aggravating punishments for offences committed by army persons, or offences committed by other public servants like with Criminal Breach of Trust. It would be better to make provisions for offences relating to the perpetrator as well. An example of this could be sexual acts done by a family member, or sexual acts done by a legally appointed caretaker (such as a babysitter, or school teacher), or a stranger. These demarcations, each with their own aggravating punishments, would further deter criminals from committing such heinous crimes. Not only would these demarcations, and specifically created offences focusing on the perpetrator, rather than the harm done, be able to provide more comprehensive justice, but it would also be useful for recognition. The recognition I am referring to here is one of the social kind; parents, and kids would feel less alienated when such an offence has brought up. It would help for children to recognise the heinous acts done to them more effectively as they could recognise, and understand the fact that even if these perpetrators are people in their very own family, the actions are still wrong. If there were Sections where offences were classified in the manner I’ve specified above, then children could more aptly report the abusers within their families, or others whom they know. Sexual crimes are always shocking, especially to the person who are victim to it, but this measure could help them feel less alienated, and understand that what has been done to them is wrong.

[1] Ritika Sharma, POCSO Act: Everything you need to know, IPleaders, https://blog.ipleaders.in/pocso-act-everything-you-need-to-know/

[2] Ibidem

[3] POCSO (PROTECTION OF CHILDREN FROM SEXUAL OFFENCES), National Human Rights Commission (2020), https://nhrc.nic.in/sites/default/files/10_PROTECTION%20OF%20CHILDREN%20-%20SEXUAL%20OFFENCES.pdf

[4] Ibidem

[5] Eesha Roy, 10 years of POCSO: An analysis of India’s landmark child abuse law, The Indian Express (Nov. 18, 2022), https://indianexpress.com/article/explained/explained-law/10-years-of-pocso-an-analysis-of-indias-landmark-child-abuse-law-8276030/

[6] Ibidem