POCSO Act – Providing Child-Friendly Judicial Process

India is home to the largest child population in the world, with almost 42 per cent of the total population under eighteen years of age. Needless to say, the health and security of the country’s children is integral to any vision for its progress and development. One of the issues marring this vision for the country’s future generations is the evil of child sexual abuse. Statistics released by the National Crime Records Bureau reveal that there has been a steady increase in sexual crimes against children. According to a study conducted by the Ministry of Women and Child Development in 2007, over half of the children surveyed reported having faced some form of sexual abuse, with their suffering exacerbated by the lack of specific legislation to provide remedies for these crimes. While rape is considered a serious offence under the Indian Penal Code, the law was deficient in recognising and punishing other sexual offences, such as sexual harassment, stalking, and child pornography, for which prosecutors had to rely on imprecise provisions such as “outraging the modesty of a woman”. The Ministry of Women and Child Development, recognising that the problem of child sexual abuse needs to be addressed through less ambiguous and more stringent legal provisions, championed the introduction of a specific law to address this offence. The POCSO Act was therefore formulated in order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children. The Protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June, 2012. The Act is due to come into force shortly, along with the rules being framed under the Act. The Act defines a child as any person below eighteen years of age, and regards the best interests and well being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. In keeping with the best international child protection standards, the Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine. Thus, a teacher who is aware that one of her students has been sexually abused by a colleague is legally obliged to bring the matter to the attention of the authorities. The Act, on the other hand, also prescribes punishment for a person, if he provides false information with the intention to defame any person, including the child. The Act also casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise. The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child. The Act also makes provisions for the medical examination of the child designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor. The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible. Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence; further, the child is not to be called repeatedly to testify in court and may testify through video-link rather than in the intimidating environs of a courtroom. Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported. Another important provision in the Act is that it provides for the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child’s medical treatment and rehabilitation. The Act is a welcome piece of legislation, in that it recognises almost every known form of sexual abuse against children as punishable offences, leaving little room for ambiguity in its interpretation. Further, by providing for a child-friendly judicial process, the Act encourages children who have been victims of sexual abuse to bring their offender to book and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma. It makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child; working together, they can ensure that the child is given an opportunity to obtain justice for the harm suffered, and begin the process of rebuilding the child’s life and future.