Know about the POCSO Act; a law that deals with Child Sexual Abuse in India

Children constitute about 40 per cent of the country's total population. Due to reasons of tender age, nascent stage of cognitive development and dependency factors, children are often treated as extensions of households, objects of control or as properties of parents - subjects that are bereft of individual human rights. However, after the adoption of the Convention on the Rights of the Child (in short, 'CRC'), in 1989, by the United Nations, a fresh narrative of children as independent rights-holders was ushered in globally.

Member nations of the United Nations General Assembly, who ratified to the CRC, had made an international commitment to uphold the rights of children in their respective countries. India, after ratification to the CRC in 1992, undertook various policy measures to ensure effectuation of the rights of children as set forth in the CRC. One of the critical policy measures undertaken by the Indian Government was to enact the Protection of Children from Sexual Offences Act (in short, 'POCSO Act'), in 2012, in correspondence to the rights of children to protection from Child Sexual Abuse (in short, 'CSA), as laid out in Articles 19 and 34 of the CRC. The World Health Organisation (in short, 'WHO') defines CSA as "the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society".

The intent of the POCSO Act is to guarantee justice to children who are victims of CSA in a speedy and child-friendly manner, and to apply strict punishment against offenders as a measure of deterrence to protect the child population from future sexual abuse and exploitation.

The POCSO Act is a strong piece of legislation, adequate to deal with the issue of CSA in India. Apart from the obvious omissions by statal response mechanisms (police, judiciary etc.) that results in lukewarm implementation of the law, the ignorance of the larger public about its provisions leads to failure of the law from being used as a tool for accessing the rights of children who are victims of sexual violence. Therefore, it is important for the public to be aware of some of the crucial provisions of the POCSO Act.

Age of consent: 'Consent of a minor below the age of 18 years has no value in the eyes of law'. The POCSO Act, defines the age of minor as 'below the age of 18'. This provision fixes the age of consent for sexual activity in India at 18 years. This means that if anyone engages in sexual activity with a child below 18 years of age, despite such a child giving expressed consent to such sexual activity, such a person will be criminalized under the law. Ignorance of this provision of the law cannot be used as a defense to escape culpability.

Mandatory reporting: 'No one can hide a case of child sexual abuse'. Under Section 19(1) of the POCSO Act, anyone who has an apprehension that an incident of CSA is likely to occur or has occurred, has to report the matter to the Police without fail. Conscious citizens can call on 1098 Childline Services or 181 Women Helpline to report cases of CSA. Non-reporting of an incident of CSA is punishable under Section 21 of the POCSO Act.

Copy of FIR: 'The victim and the informant have a right to free copy of the FIR'. Under FORM-A (1) and Rule 4(3)(a) of the POCSO Rules, the victim or the informant has to be provided with a free copy of the FIR, after registration.

Recording of statement of victim outside the police station: 'The statement of the child cannot be recorded in a police station'. As per FORM-A (5) of the POCSO Rules, and Section 24 (1) of the POCSO Act, the recording of statement of a victim child has to be conducted at the residence of the child or at a place that is considered convenient by the child.

Non-exposure to accused: 'The child must not see the accused'. Under FORM-A (8) of the POCSO Rules and Section 24(3) of the POCSO Act, the child must not come in contact with the accused at any time during the police investigation or the trial. Exposure to the accused may intimidate the victim and can enhance fear and psychological trauma.

Timely Police investigation: 'Two months' timeline is cases of rape of children'. Under Section 173-1A of the Code of Criminal Procedure (in short, CrPC), which corresponds with Sections 4 and 6 of the POCSO Act (both sections deal with rape of children), the investigation by the police is mandated to be completed within two months. This means that the Police have to file the chargesheet within two months from the date of FIR.

Special Relief: 'A victim in need must receive immediate financial relief'. Under POCSO Rule 8(1), CSA victims who are in need of financial support are entitled to payment of a certain amount for purposes of contingencies like food, clothes, transport and other essential needs. This amount can be received through an order from the Child Welfare Committee.

Interim Compensation: 'A victim has a right to compensation from State'. Under Section 33(8) of the POCSO Act and Rule 9(1) of the POCSO Rules, victims of CSA can be provided with financial assistance in the form of interim compensation by the Court. Section 6.1 (v), of Chapter 6 of the POCSO Model Guidelines, has a provision through which a victim can also apply for interim compensation directly at the State Legal Services Authority or the District Legal Services Authority.

Trials are to be held in Special Courts: 'Trials for CSA cases must be conducted at a Special Court only'. Under Section 28 (1) of the POCSO Act, all trials pertaining to CSA cases must be tried exclusively at a Special Court.

Timeline for evidence of the child: 'Evidence of a CSA victim must be taken as soon as possible'. Under Section 35 (1) of the POCSO Act, the Special Court must record the evidence of the child victim within a period of 30 days, from the date of commencement of trial.

Questions to be put to child through Special Court: 'The child cannot be interviewed directly during trial'. Under Section 33 (2) of the POCSO Act, neither the public prosecutor nor the defence lawyer can put questions directly to the child during trial. All questions must be routed through the judge of the Special Court.

Completion of trial: 'The trial must be completed within one year'. As per Section 35 (2) of the POCSO Act, the trial must be completed within a period of one year, as far as possible. The 'as far as possible' expression means that all trials must be completed within a year, barring exceptions due to reasons beyond control of the judiciary.

Though not a very comfortable subject to have conversations about, in the Indian context, CSA is an unpleasant social reality that cannot be brushed aside. CSA victims suffer massive physical or psychological injury and are in need of high-quality psychosocial-legal support. If one were to glance through the last set of documented data from the National Crime Records Bureau, 44221 cases of sexual crimes against children were reported in India, in the year 2020 alone. This data is just the tip of the iceberg, as most cases of CSA are not reported in India for reasons linked to debasement of family honour, secondary victimization during the bewildering justice delivery process, shielding of offenders due to familial interconnections, amongst others. Knowledge of the law, in a simplified manner, can help communities understand the legal safeguards and entitlements accorded to victims of CSA, which in turn can enhance reporting and help every child access his or her right to protection and justice in India.

Miguel Das Queah

Child Rights Expert and Practitioner

Founder, UTSAH Child Rights Organisation

Guwahati, Assam, INDIA

Also Read: All for Creating a more People-Friendly Guwahati

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