POCSO Act, 2012 & Juvenile Justice Act, 2015 - A Legislative Shield for Protection of Children Against Sexual Offences
POCSO ACT 2012 & JUVENILE JUSTICE ACT 2015
A LEGISLATIVE SHIELD FOR PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES
- Srishti Verma, Symbiosis Law School, Pune
“Children are like wet cement, whatever falls on them makes an impression” Have you ever wondered what life becomes for a victim after he or she survives sexual abuse? In a world where adults are being targeted on a large number for various sexual offences, the perpetrators have not backed off from targeting children for their perverse behaviour.
Protection of Children from Sexual Offences Act was passed in the year 2012 after it was realized that the existing sections of Indian Penal Code 1860 and Criminal Procedure Code 1908 were not enough to tackle the issue of rising child sexual abuse cases. The two main legislations available on child protection, among several others, are POCSO and Juvenile Justice Care and Protection of Children Act 2015. These laws are somewhat different in some aspects but go hand in hand with each other as far as the holistic aim of protection of child victims goes. While, POCSO lays down comprehensive obligations on protection of children below the age of eighteen years setting out definitions of varying degree of sexual assaults on children and its respective prescribed punishments, also focusing on one of the major concerns of children being exposed to sexual harassment for pornographic purposes. When dealing with cases involving child victims, proving the age of the minor becomes a crucial step in progressing with the matter. It is odd that POCSO does not have a provision which deals with such an issue instead, Juvenile Justice Act, on the other hand, which looks after the restoration of young criminals also below the age of eighteen years through its system of care on two classified groups of children – Children In Conflict with Law and Children In Need of Care and Protection, provides for documents that are considered in court for determining the age of the minor.
Ironically, POCSO does not provide for a compensation scheme for the victims of child sexual abuse. Supreme Court took notice of this lacuna and hence ordered that the victims are to be compensated under the Compensation Scheme for Women Victims/Survivors of Sexual assault/other crimes of National Legal Service Authority. Now, this brings us to the question, if POCSO is gender-neutral then why are there female-centric compensation guidelines but no male-specific ones. There are various issues in POCSO that need legislative attention. These are - Absence of the concept of consent between a minor and his or her sexual partner who has completed eighteen years of age, silence on the scope of applicability of POCSO where two children are involved in sexual activity. In theory, when two minors engage in any kind of sexual activity, both come under the JJ Act and are to be treated as Child in Need of Care and Protection (CNCP)[1]. But, when it comes to handling incidents like these, there is a significant deviation from theory as usually the female minor is treated as CNCP whereas the male minor as Child in Conflict with Law (CCL), invoking a deeper question of “Whether we are ready to leave behind our social dogmas and re-think our ways to be in harmony with the path of true justice?”
As for addressing the menace of child pornography, the Information Technology Act 2000 provides for strict punishments for being involved in making, selling, distributing and storing child pornography in electronic form. This piece of legislation along with Section 13, 14 and 15 of the POCSO Act are silent on the aspect of non-electronic forms of child pornography. Another social issue linked to the offences against children is Trafficking,which has not been covered by POCSO. Child Rights Activists have been pushing for this amendment citing that it is viable to punish the criminals under POCSO rather than other acts like Section 370 of IPC and Immoral Traffic Prevention Act 1986. The commercial sexual exploitation of children and other related crimes involving minors can be invoked in many cases, but are not done.[2].
Yet, another issue that can be debated upon, which in most cases loses the legal spectrum and enters the societal stigmas and psychological spheres of study, is instances where victims of sexual abuse by family members turn hostile for the fear of further embarrassment and social ostracization. This matter calls for much deliberation and invites the roles of various Non - Governmental Organizations to provide therapy and other needs for the victims to be able to bear the changes and face their culprit in the court for the exercise of their fundamental rights. To increase the scope and ambit of efficient implementation of the act for the welfare of the victims and survivors, key players like NGOs and experts are to follow instructions issued by the government. The Ministry of Women and Child Welfare has formulated Model guidelines for the same purpose under Section 39 of the POCSO Act. It gives a detailed outline for the social workers and health and medical professionals to help recover the victims and report cases in a certain manner. It also provides for a layout on the legal part of dealing with child victims of trauma from the conduct of sexual offences against them. These include the provisions of free of cost legal aid, careful selection of lawyers and overall child-friendly procedures adopted in court. Apart from these measures taken by the legal system and its valuable associated organizations, we as citizens of a nation, also bear the duty to be aware of such circumstances and report the same to the concerned authorities. These incidents of explicit material on Child Sexual Abuse Material canbe reported to cybercrime.gov.in, an online initiative to curb the malpractice and to give, the people of the country, a point of contact, where they can make a difference and make the perpetrators come to justice. Under Section 19 of the POCSO Act, there is no stipulated time for the reporting of sexual abuse incidents by the victims[3]. Such a provision can be examined through the lens of social justice from two angles. One,that the victims often tend to carry their mental distress of sexual abuse and never speak of it to anyone. Second, even if they do, once they attain majority, there is no provision for punishing the offenders as the victim no longer comes under the purview of POCSO or JJ Act.
Having the legislations in place does not guarantee the smooth functioning of the justice delivery system. As rightly said, Justice Delayed is Justice Denied, keeping this thought in mind along with the reports of a plethora of pending cases from each state of India, Special Courts have been established under POCSO to exclusively deal with cases of sexual offences against children. The Juvenile Justice Board constituted under JJ Act, hears cases pertaining to children only. There are also Special Public Prosecutors handling sensitive cases so that the judicial system does not add to the trauma of the minor victims. In addition to this, the government has recently introduced the Protection of Child against Sexual Offences Rules 2020 which will take care of the implementations of the amendments brought to the 2012 Act. These latest changes bridge the gap and strengthens the interplay between JJ Act and POCSO by utilizing the appropriate authorities cited in Juvenile Justice Act. POCSO Rules 2020 gives the jurisdiction to the Special Juvenile Police Unit (Section 107 of JJ) to deal with child pornography matters. Other general additions include mandatory police verification of staff at schools and organizations which work with children and the formulation of ‘Zero Tolerance Policy’ by institutions and agencies for violence against children [4]. While these 2019 amendments strive to make the existing legislation stronger, they might exhibit an opposite role. Child Rights Activists have been advocating that the inclusion of the death penalty and extended years in prison of the offenders, might lead to reduced reporting of cases and even murder of the minor victims[5]. As of now, there are no substantial reports and numbers to prove the same but it is apprehended that this speculation, in all probability, can change into reality.
It is the need to the hour to analyze the trends in up-to-date research reports to come on the legislative front with all confidence, and draft policies which will not lack in any degree to give justice to innocent child victims and help the judiciary to punish these criminals and setting celebrated precedents for social justice in the realm of child rights.
References :-
[1]Srishti Agnihotri and Minakshi Das,’Reviewing India’s protection Of Children From sexual Offences Act Three Years On (South Asia @ LSE Blog, 18 December 2015) <https://blogs.lse.ac.uk/southasia/2015/12/18/reviewing-indias-protection-of-children-from-sexual-offences-act-three-years-on/>Accessed 6 April 2020.
[2] Monalisa Das,’Why cases of commercial sexual exploitation of children should be registered under POCSO’ (The Newsminute,4 April 2018)<https://www.thenewsminute.com/article/why-cases-commercial-sexual-exploitation-children-should-be-registered-under-pocso-79010> Accessed 7 April 2020.
[3] AVictim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age: WCD Ministry, https://pib.gov.in/newsite/PrintRelease.aspx?relid=184227
[4] https://economictimes.indiatimes.com/news/politics-and-nation/centre-notifies-new-pocso-rules-making-law-for-sexual-offences-against-children-more stringent/articleshow/74608023.cms?from=mdr
[5] Sana Ali,’Death Penalty in POCSO Imperils Child Victims of Sexual Offences’ (IndiaSpend, 14 October 2019) <https://www.indiaspend.com/death-penalty-in-pocso-act-may-imperil-child-victims-of-sexual-offences/> Accessed 8 April 2020.
