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The Protection Of Children From Sexual Offences Act, 2012 (POCSO)

December 20, 2013

The Protection of Children from Sexual Offences Act of 2012 (POCSO):

Pedophilia has always existed in our country, but recently it has emerged as a disgusting, extremely perverse and inhuman sexual trend. The Protection of Children from Sexual Offences Act of 2012 (POCSO), as accorded by the President of India, aims to offer protections to children (individuals below the age of 18) from sexual violence, namely sexual assault, sexual harassment and the inclusion of children in pornography. The Act also stipulates special courts for the arraignment of such sexual crimes committed against children. The sexual offences detailed under the Act as punishable crimes include ‘sexual assault’, ‘sexual harassment’, ‘afflicted sexual assault’, ‘penetrative sexual assault’, ‘aggravated penetrative sexual assault’ and abusing children in pornographic videos. The Act describes in detail all acts of sexual violence pertaining to children and takes all the possibilities into consideration. The Act also takes into consideration attempts of sexual violence to children and succor to such violence. The Act is applicable throughout the country with the exception of the State of Jammu and Kashmir.

The punitive measures arbitrated in the Act are incarceration for variable terms, which may also include a penalty for reparation because of the derangement that the child had been subjected to and/or rehabilitation programs in needed.

A brief description of the POCSO Act:

In today’s perspective such an Act is absolutely necessary and the all – inclusive nature of the Act makes it more significant. Contrary to the other penal codes, this particular Act has an exceptional ‘clause’ which states that, an individual accused of sexual offence to children is guilty unless proven innocent. Besides this clause there are some other dubiousness in the clauses under this act which may lead to the persecution of innocent individuals but such dubiety cannot be avoided keeping in mind the basic motive of the Act. Another debatable mandate of the Act is the compulsory furnishing of a police report by the medical or the child psychology expert personnel in the event of an intended or actual case of sexual violence to children. Such reports, if misinterpretated, can have long drawn consequences once again resulting in the impeachment of innocent victims. This particular mandate overrules the confidential relation between doctor – patient relations and here the Act explicitly mentions that, civil or criminal charges shall not be pressed against individuals reporting cases of child related sexual offence with proper intentions. According to the mandates of the Act, a defaulter in reporting child sexual abuse, in spite of prior knowledge, is punishable with a ‘penalty or imprisonment up to six months or both’.

A child sexual abuse is acknowledged as more severe if it is perpetrated by an officer of the law, namely a police officer or a security personnel or a member of the Army or a public servant or a personnel pertaining to a rehabilitation center, a remand home, jail, medical centers or educational institutes. In case of a child sex abuse complaint being lodged with the Special Juvenile Police Unit or the local police, who is vested with the responsibility of rendering protection to the victim, POCSO responds immediately with measures for aid and restitution for the victim of such abuse. POCSO also arranges for special courts for the brisk habeas corpus against such offenders, while also insulating the victim from any contact with the impeached during the court hearings. Despite the fact that, both the Central and State Governments are vested with the responsibility of spreading the awareness about POCSO using every form of media, and envisaging training programs for all the personnel associated with POCSO, the Act remains significantly obscure.

Challenges faced by the POCSO Act:

POCSO can become effective only if a police complaint is lodged reporting a child sex abuse instance. POCSO furnishes particularized instructions about the safeguarding of the victim’s identity. The Act further construes in minute detail how the statement of such a victim should be extracted, without causing further trauma to an already deranged child. The act further defines legal guidelines to be adhered to, in the event of a court hearing, for the said offense. Still numerous bottlenecks exist in the successful implementation of the Act. The police, for one, are inept in handling the delicacies involved in such offenses, due to lack of proper training.

A child who has been a victim of a sexual assault has probably underwent the most traumatizing experience of his life which is likely to damage the mental health of the child irreparably. Under such circumstances, not only the victim but also the family of the victim is in the imperative need of psychological treatment as well as support on societal issues. But given the fund starved, rickety infrastructure of the psychosocial services in our country, the victim and his/her family can expect very little from the government sponsored said services.

Also a successful implementation of the POCSO requires the State Governments to furnish explicit codes and principles that need to be strictly adhered to by the medical and healthcare professionals and the other officials involved in the child sex abuse cases, before the trial, during the trial and also after the trial. But no such concerted efforts have been taken so far.

Whereas the POCSO repeatedly mandates the necessity of extensive training programs for the police and other legal authorities, handling child sex abuse cases, such programs are almost non – existent. While the Act also mandates the Government to create maximum and consistent publicity for POCSO, using the various forms of media in order to spread awareness regarding the stipulations of the Act, such measures remain stagnated at the theoretical stage.

With more than 4000 recorded accounts, child sex abuse is a much studied topic pertaining to researches for the mental and social health of our country. It is, therefore, necessary for organizations like the Indian Psychiatric Society to be proactive in extending their cooperation in child sex abuse cases, which can make the Act functional in the true sense.

The High Court verdict in favor of the POCSO Act:

The ground – breaking verdict of the High Court, instructing the States of Punjab, Haryana and Chandigarh on April 9th, 2013, to constitute fully functional State Commissions for the implementation of the Protection of the Child Rights, came as a result of an appeal filed by the National Commission for Protection of Child Rights (NCPCR). Such Commissions are to be spearheaded by an ex – Judge of the High Court, while the rest of the members are to be chosen following a candid naming procedure. Proper registration of the children homes, envisagement of child courts, assignation of ‘special public prosecuting counsel’ and constituting a special counsel for the appointment of the different members, pertaining to the various child welfare committees, were also made compulsory by the High Court verdict.  The Court order also includes that, the National and State Commissions will start to exert the POCSO stated stipulations and training programs to be instituted by the Chandigarh Judicial Academy to ensure proper education of all the individuals associated with child abuse cases and legal procedures of the Children’s Court.

Madras High Court to make a move on the POCSO Act:

In Madurai an appeal has been filed before the Madras High Court Bench by R Shankar Ganeshan. The appellant is chasing the issue of a widespread media publicity of the POCSO Act and a court monitored initiation of the said Act. The petitioner further emphasized the need for proper training programs for the legal authorities for the successful implementation of the Act. The High Court had dispatched necessary notices to the pertaining legal authorities expecting an answer within a period of four weeks.

Conclusion: 

The public outrage in the country, stemming from an increasing number of child sex abuse cases, continues unabated while the agony of the wretched victims remains mostly unnoticed. Equally deplorable is the condition of the victim’s family, who pervaded by the helplessness and confusion, has no clue as to how to handle the consequences of the abhorrent crime inflicted upon one of the family members.

In a country where 40% of the population falls below the age bracket of 18 years and as per a survey conducted in 2007 revealed that 53% children has been a subject to some form of sexual abuse or other, the proper implementation of POCSO in our country is a necessity of yesterday.

 

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Showing 2 Comments :

people who are not guilty suffer lots bail is not granted until they prove themselves innocent. law should be amended as it is often misused

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R.PRADEEP KUMAR , ADVOCATE, COIMBATORE February 4, 2014 at 8:14 am

Sir/ Madam,
The case under POCSO can also be filed as Private Complaint. While filing such private complaints, what are the basic rules to be followed ? No doubt immedieatly the victim child will be referred to medical examination along with a police complaint. But to fix the accused is there any other remedy available. Seconldy , in case, if the person files the said complaint without any assistence of an advocate, without proper proceedure, will it affect the case. Please Explain.

Adv.Pradeep Kumar

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