POCSO Act Insufficient, Sexual Abuse of Children Rampant

Last week the Delhi High Court observed that offences against minors, especially sexual assault, are increasing alarmingly. It also stressed that it is necessary for the courts to "imbibe the legislative wisdom" behind the enactment of the Protection of Children from Sexual Offences Act (POCSO).

A division bench of Justice Siddharth Mridul and Justice Anup J. Bhambhani observed: "the plight of a victim and the shock suffered can be felt instinctively; as the victim of rape is left devastated by the traumatic experience, as well as an unforgettable shame; being haunted by the memory of the horrific experience forcing her into a state of terrifying melancholia."

The POCSO Act is a legislation which aims at protecting children from all types of sexual abuse. Although the Convention on the Rights of the Child was adopted by the United Nations in 1989, the offences against children were not redressed by way of any legislation in India till 2012.

The Act provides stringent deterrents for the commission of offences against children ranging from a minimum of 20 years of imprisonment to the death penalty in case of aggravated penetrative sexual assault.

The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child.

While the law is itself stringent, legal experts believe that the ground reality and implementation need a lot of work.

Recently, a special POCSO court in Mumbai in an order sentenced a man to 1.5 years in jail for sexual harassment of a minor schoolgirl, saying addressing a girl as an "item" is only done to objectify her with sexual intent. The man, who lived in the same neighbourhood as the girl, was booked on allegations that in 2015 when the victim was 16-years-old, he used to tease her while she went to and from school.

"The accused having addressed her by using the term "item" which is a term used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner. The same will clearly indicate his intention of outraging her modesty. I am, therefore, of the clear view that the prosecution has been able to prove the fact of the accused having outraged PW 1 the victim 'X's modesty on the day, time and place as alleged," the court said.

The latest report released by the National Crime Records Bureau (NCRB) shows that 1,49,404 cases of crime against children were registered in 2021 of which 53,874 — 36.05 per cent — were under the Protection of Children from Sexual Offences Act (POCSO).

There were 47,221 POCSO cases out of 1,28,531 cases of crime against children in 2020 (36.73 per cent) and 47,335 of 1,48,185 such cases in 2019 (31.94 per cent).

The NCRB data on cases registered under POCSO showed a steady increase in the rate (incidents per 1 lakh children): 12.1 in 2021 (53,276 girls, 1,083 boys); 10.6 in both 2020 and 2019.

The NCRB started recording the cases under POCSO Act, 2012 only in 2014. Speaking to The Citizen, S. Rama, Legal Aid Council at the Child Welfare Committee said that the situation was grievous, with many ground factors contributing to it. "There have been cases where the investigations have been delayed. There was a recent case where the girl was 3.5 years old and she was abused.

"The Medical Legal Case (MLC) said that this was a POCSO case, but the police did not even register an FIR. My CWC wrote several times to the SHO, but to no avail. Now, the girl is around 7 and this is such a huge mistake on the part of the investigation agency's part," she said.

A child in need of care and protection is brought before a CWC to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.

The Committee shall consist of a Chairperson and four other members, of whom at least one shall be a woman and another, an expert on matters concerning children. The Committee shall function as a Bench of Magistrates. Delhi has at least ten CWC centres in different districts.

The CWC is basically a first point of contact when a case is registered under the POCSO Act. After the MLC and the statement of the child is recorded, it is mandatory for the child to be produced to the CWC.

"We interact with the child and go through the FIR, the MLC and the statements," Rama said adding "between the age of 3 to 12 year the cases are clearly POCSO, where children are sexually abused and they narrate whatever has happened to them point by point. This has been my personal experience so far working as a legal aid."

Rama also said that they receive cases of both boys and girls as young as three years of age. "The children are aware of what has happened with them and never go back on their statements. This includes both boys and girls," she explained.

The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.

A major issue that Rama pointed out was compensation for the victims that needs to be taken care of. "The POCSO Act states that the victim should get interim compensation. When it comes to the compensation part, I have observed that the victims don't get the compensation easily, which is the immediate aid," she said.

Compensation under section 357Aof Cr.P.C. is to be paid in two ways, one is on the "recommendation" of a court under section 357A(2) or section 357A(3) of the Cr.P.C; and two is "on an application" made by a victim under section 357A(4) Cr.P.C. to the State or District Legal Services Authority for award of compensation.

"Victim compensation needs to be more proactive, at some level they are working but many victims are not getting anything. Most of the cases we get come from low-income strata, so something needs to be done at a major level on this," said Rama.

Lawyers, however, said that many legal aids create nuisance in the case and are not proficient in their work. Aarti Singh, a Delhi based lawyer said that many legal aids add extra information in the case to make a stronger case. "Many times false information is added in the complaint. This only creates issues in the moving forward of the case," she said. A major reason that the lawyer pointed out is the issue of conviction rates due to such issues.

As a final process, a chargesheet is prepared by police naming the accused persons against whom charges can be framed. The charge sheeting rate of cases under POCSO by police was 94.2% in 2016, which increased to 94.7% by 2020. The pendency rate of POCSO cases with the police has decreased from 31.8% in 2016 to 28.8% in 2020.

On the other hand, the conviction rate is an indicator of the disposal of cases by courts and is defined as the share of convicted cases out of the total cases in which the trial was complete. Over the years, there has been a significant increase in the conviction rate, from 29.6% in 2016 to 39.6% in 2020. But the pendency of cases in the courts was 94.7% by the end of 2020, up from 88.8% by the end of 2019.

Rama, to this, adds that there is a need for fast-track courts, "in a few cases they do take place, but there should be a time frame for all cases. There should also be a stringent time frame. Vulnerable cases such as under 12-year-old cases, rape, sexual assault and human trafficking should come under a special category where a strict timeline should be given to the investigation officers."

She also said that most of the time IO themselves have no knowledge about whether the case would come under POCSO or not. "There is hardly any awareness among them. So many times, they miss out or put wrong sections or act, in such a case nothing moves forward," she said.

Despite this, Rama and Singh agree that awareness is changing the attitude of people towards the law. Awareness has made many children aware about the POCSO Act, social activists believe more work needs to be done in this regard.

Rama said that government schools have little to no education on either sex or consent. "We had a case recently where a nine-year-old reached out to us after a session on good and bad touch in her school. She was groped by an elderly man and she in turn told her parents who reached out. This is what awareness can do," she said.

Singh also said that curriculum needs to be added in both private and government schools for discussions and workshops on these issues. While there are workshops on good or bad touch, there are no discussions on the POCSO Act.

Aarti Manchanda, a Delhi-based lawyer who has been conducting sessions at government schools on such issues said that children now are aware about what is happening "There are a lot of programmes catering towards good touch and bad touch, so when I usually go, there are discussions. The children are not taught about POCSO because the law gets complicated, but we do tell them to reach out to their elders whenever they feel they have been harassed in any form," she said. She added while children can not be taught about the complications of the law, parents can be.