EFFECTS OF POCSO ACT ON THE JUDICIAL SYSTEM OF INDIA

Table of Content
ABSTRACT    3
INTRODUCTION    3
NEED FOR A NEW LAW    3
MORE ABOUT POCSO    5
CRITIQUING POCSO    7
PROBLEM WITH AGE OF CONSENT    7
PROBLEM WITH MANDATORY REPORTING    9
OTHER ISSUES    10
POCSO AMENDMENT ACT OF 2019    11
CONCLUSION    12
BIBILOGRAPHY    13




RESEARCH PAPER
TOPIC: EFFECTIVENESS OF POSCO ACT ON CURRENT JUDICIAL SYSTEM
ABSTRACTThis research paper would center around the aftereffects that the establishment of Protection of Children from Sexual Offences (POCSO) Act has had on the criminal justice system specifically and on society generally. The POCSO Act, when it was passed in the year 2012, aimed to protect children from offences committed against them that are of a sexual character, with provisions that also aimed at the court procedure being smooth and child-friendly. However, it comes to the realization that although comprehensive, it is still filled with contradictions and loopholes that prove to be very detrimental to the victims mentioned in the Act. 
INTRODUCTIONIndia, with its population of over 1.3 billion contributes its part to the growing crime rates as much as it contributes to its growing economy. Perhaps the most heinous out of all the crime that a person can do is crime against children. Still, out of all the crimes that can be carried out against children, there is nothing as debilitating and traumatizing to a child than the offences committed to them that are of a sexual nature. 
Having one’s own innate and private parts exposed is a horrifying experience to adults, who are aware of the nature and its consequences; so, the effects that it will have on a child is something that one cannot even imagine. A lot of the times, the children cannot even sense that something is wrong, and if they do, the adults mostly ignore it by labelling it as childish ignorance.  
These are some of the reasons why the government decided to enact the abovementioned Act. 
NEED FOR A NEW LAWEarlier to the establishment of this Act, the provisions that were given under the Penal Code of 1860 were inadequate when compared with the magnum of abuse inflicted upon children on a daily basis. Till the year 2012, even though the country should be ashamed to admit, only three offences could have been raised with regards to sexual offences against children, and ironically none of these three offences were specific to children. Following were those provisions: 

1. S.376 - the section talks about rape, which is engaging in sexual intercourse without the consent of the woman. The section states that raping a girl below the age of 12 years will attract the offender with a graver punishment of imprisonment either up to 10 years or life imprisonment. 
2. S.354 - Outraging the modesty of a woman by means of assaulting or using criminal force will attract punishment under this section. Under the Girdhar Gopal case, the court had declared that a girl of 6 years comes under the definition of ‘woman’ that is given in this section. 

Similarly, in the case of Major Singh the court held that: 
“Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged.”

1. S.377 - the section talks about sexual offences of the unnatural category, that is., intercourse that goes against the apparent laws of nature – anal intercourse with a man, woman, or an animal. Prior to the establishment of POCSO, it had been reported that almost all the cases that were taken cognizance of under this section were child abuse cases. Infact, Mr. Amod Kanth, the then chairman of ‘Delhi Commission for Protection of Child Rights (DCPCR)’ said that the above section happens to be the sole provision that ascertains punishment to individuals who sodomize children and minors against their will.

The problem with the above provisions was that none of them were child-specific or gender neutral in nature, which led to a huge increase in child abuse cases all over the country that it was even reflective in the national records. The survey conducted by the Ministry of Child and Development proved that there was an increase of almost 6500 more child abuse cases between the years 2010 and 2011. An even more telling factor of the severity of the situation was that in half of these cases, the abuser was a “person known to the child or in a position of trust and responsibility”, and there was no law whatsoever that provided some relief to the horrible plight of these children. 
It must have been due to numerous reports such as the above that Sonia Gandhi, who is the president of the Congress political party and chairman of the then National Advisory Council, urged the ministries concerned with women and child development to quickly submit a fresh draft on new protections that should be available to children of abuse cases.
Therefore, due to fairly successful national studies and media reports, the Indian government finally decided to enact the Protection of Children from Sexual Offences (POCSO) Act in the year 2012. 
The POCSO Act of 2012 refers to the very extensive legal document on the protection and assistance to children on whom sexual offences such as harassment, assault, pornography, etc. are committed. In fact, the act briefly gives an overview as to the purpose of the act as follows:
“comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.”
MORE ABOUT POCSOThe POCSO Act did prove to bring in a lot of systematic, administrative, and global changes:

• The Act took a big step in removing gender bias in child protection laws, by constituting the whole act to be one that is gender neutral. The gender of the child who unfortunately became the victim in these cases is immaterial. The last point of importance under this Act is the change in age at which individuals can engage in consensual sexual intercourse from 16 years to 18 years. Anyone, even another minor, can be put on trial for engaging in sex with another child.
• The Act does not limit sexual assault to mere penetration by a penis. It also widens the term ‘penetrative sexual assault’ by adding any kind of oral sex and insertion of any object into the mouth, anus, or vagina of the child along with penile penetration. This provision will provide more protection to child abuse victims and prevent decisions such as the one given by the court in the case of Pankaj Chaudhary, where it was held that finger penetration of a 5 – year – old’s vagina only amounted to ‘outraging her modesty’ and not rape. 
• The Act has also more or less covered the offences done by the victim’s family members, relatives, etc. by making ‘aggravated penetrative or non-penetrative’ sexual offences committed by specific people in specific situations graver than others. This would include people in authority of the child or people who are in positions of power when it relates to the child, people who inhabit a shared household with the child, etc. It therefore covers a wide range of possible scenarios and conditions that may occur in cases like these.
• The Act has further portrayed a more modern mindset while dealing with child abuse cases by defining sexual harassment to also include stalking, watching, contacting, etc. of a child through electronic means, thus covering the very prevalent online harassment or cyber – bullying cases also.
• Another principal development of this act that was necessary for victims of child abuse was the manner in which testimonies of the children are conducted. The place where recording of statements would be a place of comfort of the child, and not in fear or discomfort inducing places such as courts, police stations, etc. The act also states that the officer in charge should not be in his or her uniform while collecting statements from the child, nor should anyone detain a child for the night for any reason whatsoever.
• A special court must conduct cases falling in this category. The act also prescribes methods of conducting trial proceedings in a child-friendly and more sensitive manner by allowing testimonies of the victim to be given by camera (privately), via video links or from behind a curtain or screen. This definitely goes a long way in trying to ensure that the victim’s already existing trauma is not increased ten-fold along with protecting the identity of the child.

As child sexual abuse (CSA) cases are very unfortunate realities in our country, the need for acts and rules like this become indispensable. However, due to our country’s tendencies of leaning towards corruptness, there always comes the need to establish other mechanisms to check if provisions of POCSO are rightly being implemented or not. The Act itself has prescribed the Child Protection commissions at both the central and state level to act as some sort of monitors of the former’s performance. According to the provision mandates, both the National Commission for Protection of Child Rights and its state counterpart are required to have one POCSO cell that deals with matters regarding CSA cases. 
CRITIQUING POCSO However, seldom have provisions and plans been used or implemented in our country in a way that benefitted the citizens. The same goes for the act at hand. There were a lot of problems and issues that the Act faced. In fact, a 2014 Maharashtra stakeholders survey showed that there were huge problems that arise from scarcity of resources and lack of proper training to the investigating officers that rendered the provisions of the Act virtually useless. These issues have a negative consequence both socially and legally in relation to the judicial system. 
PROBLEM WITH AGE OF CONSENT The age of consent according to the provisions of the Act is 18 years, and this section has been one of the most controversial and often disputed sections when this act is concerned. 
The definition of age of consent is that it is the age at which an individual is said to be legally capable of giving consent for engaging in sexual acts with another person. Before enactment of the bill, the age of consent was 16 years (even below that for the girl who is married to the accused). When the bill was made, the provision with regards to age of consent was that if the victim was between the ages of 16 and 18, the court shall consider whether the consent was actually taken against the will of the minor. The bill (before enactment) was sent to the Standing Committee on Human Resource Development for recommendations and suggestions. The committee, on its report that they sent back to the Parliament, suggested a change with regards to the abovementioned category. It basically said that if the law goes according to the provision in the Act at the moment, then the focus would shift onto determining the presence or absence of consent, and therefore, suggested that the provision should be amended by making all sexual acts (consensual or otherwise) of an individual below the age of 18 years a crime. The Parliament voted in favor of this suggestion and passed the Act with the above amendment. However, the debate that started between the two houses of Parliament still continue with regards to this amended age of consent section. 
Those in favor of the amended section contended that the earlier unamended provision gave freeway and a huge sense of legal protection to prospective offenders who will get away easily by committing rape on children between 16 years and 18 years, as the onus of proving the crime would be on the victim. The whole legal proceeding would be entirely pointing fingers at the victim and his/her capability of giving consent to the accused whereas the brunt of the trial will never fall up on the accused. That kind of method could do more harm than good to a potential victim of sexual abuse. 
The opposite side, on the other hand, refuted along the lines of sexual autonomy and independence of youth. This kind of law vehemently goes against what is known as  ‘elopement marriages’.  They refer to marriages that are contracted between a man and a woman without any consent or permission from parents. A 2013 judgment on the case State v. Suman Dass even held that a 15 – year – old willingly eloping with a 22 – year – old and marrying will not be a criminalizing behavior as explained by the POCSO provisions. The Special Court judge also stated that if the justice systems keep criminalizing such actions, then it would mean that the body of every person who is less than 18 – years – old would be the ‘property of the state’, and therefore restricts these people from finding bodily pleasures.
They further argue that such kind of limitations relating to ‘consent’ go a long way in promoting the still prevailing social evils such as sexism and patriarchies where women are supposed to be obey whatever is said by the head of the family which is usually a man, and not have any independent thoughts, emotions and feelings of her own. Moreover, due to these problems, the term ‘consent’ gets connected with notions of parental authority and ‘rational’ choice instead of the actual choices made by women. It serves as a useful tool for police to harass young couples or for parents to curb the sexual behavior of their older children.
A recent case in the year 2019 supported this notion by suggesting that the age of consent should be lowered. The court, while acquitting a young accused, said that the age of consent can be lowered to 16 years and that it may lead to the following implications: 
As it is human nature to like and be in a relationship with somebody, young couples who are above 16 years of age can breathe a sigh of relief if this provision is implemented. Any consensual act or bodily contact between people who are 16 years and above, can then be excluded from the rigorous punishment prescribed in the Act. If a sexual assault does happen, then it can be defined in another section under the same Act and can also be differentiated between sexual assault on children who are below 16 years. The judge also stated that there can be further amendments based on consensual sex. The age gap of the offender and the victim in what was pleaded to be sex of consensual nature should not be more than 5 years. This helps by not letting someone much older than the girl  take advantage of the latter due to the latter’s impressionable age.
Such kind of restrictions that are placed in the POCSO at the present concerning age of consent continue to deter young adults from engaging in a perfectly consensual sexual relation and from young girls from seeking safe abortion. 
PROBLEM WITH MANDATORY REPORTING The act states that anyone (even the child victim) has gotten knowledge about the fact that an offence under this act is about to be committed or has been committed, then s/he should immediately report it to the police. However, there are severe loopholes in this provision too. 
According to a famous study ( Wortley & Smallbone, 2006), the greatest number of abuse where the victims are children occurs in their own domestic surroundings, that is, with their family, relatives, etc. This means that almost always there is a power imbalance in the relationship between the offender and victim. The study also says that such domestic abuse encounters will majorly be frequent, and the continuity of those situations will automatically result in the children withdrawing to themselves, as it often becomes a situation in which the dominant person would be the offender and the child cannot possibly go against the wishes of his or her very own predator, thereby increasing the amount of cases not reported by the victim themselves. Therefore, a section such as this does little to no good in such situations. 
Another problem to be weary about is how it is such a set-back for institutions and individuals who work closely with young people and whose primary aim is to build trust between themselves and the youth. Mandatory reporting would mean a breach of trust as it would very much jeopardize all earlier efforts and progresses on communicating and empathizing with young people as these institutions, individuals and organizations would be legally obliged to report any consensual, but underage, sex. 
The Indian system of handling social evils have always been filled with prejudices, harassment, and judgements. The doctors, teachers and even counsellors are almost always not fully or aptly trained in this area regarding how sexual abuse victims are to be treated, and almost always, they themselves instill senses of ‘unworthiness’ and ‘tainted’ into the minds of the victims. Another problem is how police officers are more concerned in finishing off the case rather than bringing justice to the victim, that they even make victims create false statements to ‘shoo’ the case under the table quickly. A legal obligation, without thinking about how the provision should be enforced, paired with a lack of accountability from these very law enforcement officers leads to the failure of achieving the aim envisioned by mandatory reporting.
OTHER ISSUESThere are also other comparatively smaller issues that the 2012 Act faces.     
The Act is extremely silent on describing the documents with which the age of the child victim can be proved. Therefore, Juvenile Justice Rules have to be referred and that piece of legislation only recognizes three documents that are fit to prove the age of the child:

• Birth Certificate 
• School Certificate 
• Matriculation Certificate

Therefore, victims who do not have the necessary documents (even if they have other documents such as passport), are made to go through a bone ossification test, which unfortunately, courts themselves have decided is not a conclusive proof of age. It was also held by courts that benefit of doubt is definitely given to the accused while determining the age by way of the test.
Another point of issue is that, similar to a lot of laws that are embedded in our justice system, the POCSO act also assumes that the perpetrator will always be a man by use of the pronoun ‘he’. This is an extremely prejudiced and traditional manner of identifying perpetrators as it is absolutely untrue that women cannot become offenders who inflict sexual abuse towards children. Therefore, one whole gender is able to escape the punishments provided by this Act. 
POCSO AMENDMENT ACT OF 2019The POCSO Amendment bill was introduced to the Upper House of the Parliament by the Ministry of Women and Child Development in the year 2019 in order to add or amend the following – 

• Increasing the minimum punishment of ‘penetrative sexual assault’ from 7 years to 10 years. The bill further added that if such an offence is committed to a child below the age of 16, the offender shall be punished with a life imprisonment of 20 years along with fine. 

However, this also poses another issue as scholars state that it goes against the constitutional principle embedded in Article 14 – Right to Equality. Only a reasonable classification of things is permissible under this article to not violate its core. The case of Anwar Ali helped in identifying what constitutes as ‘reasonable classification’. They are:

1. That the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and
2. That the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.

Therefore, by the addition of the subclause that 20 years imprisonment will be awarded to offenders who abuse children below 16 years, the law is creating a vague differentiation between offences below the age of 16 years and offences above 16 but below 18 years. There is a big uncertainty in determining the ‘age of maturity’ factor.

• Through the bill, the punishment for aggravated penetrative sexual assault also increased from a minimum punishment of 10 years to 20 years, and the maximum punishment being death penalty.

This introduction of the death penalty also poses various ethical and moral questions. If death penalty continues to be executed in the country, then the whole concept of deterrence flies out of the window; principles of justice and fairness will also erode. Another problem is that, this becomes a serious risk to the victim if the offender was a family member. Because of the stigma and the risk attached to it if the offender gets punished, the victim or survivor would be highly hesitant in coming forward to register complaints. 
CONCLUSION The POCSO Act is very well an extremely comprehensive legislative piece that was established to protect one of the most vulnerable age groups in our society from sexual abuse and harm. The legislature has also done well in making a separate law for children and it is absolutely not inefficient in any way. However, there will always be the presence of loopholes, and my suggestion would be for the law – making bodies to carefully try to think more into the future with regards to execution of provision and connect them with how our society functions today in terms of justice personnel. 
BIBILOGRAPHY 

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