Introduction
Sexual abuse of children is a severely under-reported crime for our nation and has drastically gained momentum in recent years. It is rather unfortunate to point out that boys had no legislative protection until 2018. Studies conducted by the authorities for estimating the sexual abuse of children give horrifying statistics that half of the children in the sample size sexually abused and among them, 47.06 percent were girls while 52.94 percent were boys, a reality that ignored by the State, law enforcement agencies and the judiciary itself. They found the worst hit region vis-à-vis the sexual abuse of children to be Assam at over 57 percent while Delhi, Andhra Pradesh, and Bihar were not far behind.
Besides, the problem of sexual abuse, the ancillary problem of trafficking of children too remains prevalent and ranks among the worst maladies that ail this country. During the past 20 years, among other shocking developments, the incidence of sexually transmitted diseases among children has increased. They have also shown it that a huge proportion of these pedophile predators know their victims. These horrendous reasons all the more warrant unambiguous, stern and strict punishments for such predators unlike the usual reformative and corrective approach used by the judiciary to shield the criminals from facing true justice for their dreadful actions.
The Protection of Children from Sexual Offences (POCSO) Act, 2012
The Protection of Children from Sexual Offences (POCSO) Act, 2012 came into being only for efficiently tackling heinous criminal activities such as exploitation, abuse, and trafficking of children. They revised the Act with those of Indian Penal Code of Criminal Procedure and Indian Evidence Act after the enactment of Criminal Law (Amendment) Act, 2013 it made which as a response to the gruesome rape and murder in Delhi during December 2012.
The POCSO Act, 2012 only meant for protection of girls until 2018 when it amended to extend the protection to boys as well; making it a gender-neutral legislation. Now, the Act defines a child as any individual below 18 years of age and protects all children from sexual abuse.
This definition of child sexual abuse is comprehensive and comprises the following elements:
penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, using the child for a pornographic purpose, trafficking of children for sexual purposes.
An offense is regarded as “aggravated” in the event that the victim/survivor is mentally ill or when the abuse is committed by a person in a position of trust or authority regarding the child. The prescribed punishments under the Act are graded as per the severity of the offense, with a maximum term of rigorous imprisonment for life, and fine, not as stringent as expected of a society that wishes to protect its children from sexually deviant predators.
This logic dawned on various Indian states a lot later than it should have, in the wake of a string of gruesome rapes of children. Now, several states and the Centre have amended the law to prescribe capital punishment for rapists who target children below the age of 12 years.
The POCSO Act has some excellent provisions for avoiding re-victimization of children and to accord them a friendly environment through all stages of the judicial process. Utmost importance is given to the best interest of the children.
The Act goes a step beyond by incorporating child-friendly mechanisms regarding reporting, recording of evidence, investigation of the offense, trial proceedings both speedily and in camera whilst prohibiting any release of victims’ identities and the establishment of Special Courts for the purpose of hearing cases under the Act.
These Special Courts also deal with the determination of the amounts of compensation awarded to the children who are victims of sexual abuse so that their medical treatment and rehabilitation can be taken care of.
Medical examination of the victim holds paramount importance for the prosecution of sexual offenses and the Act contains provisions for the medical examination of the child in the least distressful manner. In very unambiguous terms, it directs the doctors to not demand legal records or procedure or documentation whilst stalling the treatment or the medical examination of the child. It can deal with the procedures with after they have provided the requisite medical care to the child.
It is also compulsory for the doctors to register an MLR in all cases within the ambit of this Act. Failure to do so may cause six months’ imprisonment and/or a fine under section 21 of the Act.
A very significant provision under this law is that no hospital within India can refuse to admit the victim of child sexual abuse either for medical examination or treatment. I have especially emphasized this mandate in section 357C of the Code of Criminal Procedure, 1973. Further, section 166B of Indian Penal Code specifies that no hospital whether private or public can deny treatment to a rape victim. The treatment should provide immediate and free of cost. If a hospital staff involved in rape, then section 376 of Indian Penal Code dictates punishment for a minimum of seven years.
The most controversial aspect of the Act is that of the provision regarding child marriage and consummation of child marriage. They consider both these activities an offense under the POCSO Act, 2012.
However, the powers that may be, to appease secular vote bank, continue to sanction child marriage under Muslim Personal law, thus complicating matters.
The consummation of child marriage was given a specific exemption as an exception to the offense of rape under section 375 of IPC, for this purpose. Fortunately, the Supreme Court put an end to it in 2018 and the consummation of child marriage is now a criminal offense, regardless of religion.
To conclude, it shall say the POCSO Act started with a lot of incongruities but has shown remarkable performance, with the aid of judiciary, at removing these incongruities whilst establishing strong nexus with the Code of Criminal Procedure, Indian Penal Code and the Indian Evidence Act. For and its well-articulated provisions, it surely deserves appreciation.