The Child Sexual Abuse has been a hidden problem in India. The Laws for the prevention of child abuse have strong provisions but weak implementation due to which these are largely ignored in public discourse. In Indian society, like most societies across the world, the parents consider their children as their property and assume a freedom to treat them as they like. Parents and teachers adopt harsh methods of disciplining children. In the absence of any specific Law, a range of offensive behaviours such as child sexual assault, harassment, and exploitation of children for pornography were never recognized. India ratified the UN Convention on the Rights of the Child (UNCRC) in 1992; and it is under this that the provisions for entitlement of child rights and their enactment started coming into picture. In the past few year’s activists, NGOs and the Central Government’s Ministry of Women and Child Development and National Commission for Protection of Child Rights have actively engaged and broken the silence, which led to the enactment of new legislation called The Protection of Children from Sexual Offences (POCSO) 2012.
Child abuse is a state of emotional, physical, economic and sexual maltreatment meted out to a person below the age of eighteen and is a globally prevalent problem.
The World Health Organization (WHO) defines child abuse and child maltreatment as "all forms of physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child's health, survival, development or dignity in the context of a relationship of responsibility, trust or power.”
Until 2012, the only sexual offences against children recognized by the law were covered by three sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were-
1. Outraging modesty of a woman (S. 354, I.P.C.)
2. Rape (S. 375, I.P.C.)
3. Unnatural Acts (S. 377, I.P.C.)
However these provisions had a lot of loopholes- S. 375 didn’t protect the male victims.
The definition of rape & penetration was however amended in 2013. The term ‘modesty’ wasn’t defined.
Child Abuse is infringement of the basic human rights of a child & is an outcome of a group of inter-related family, social, psychological and economic factors. Within the Indian context, acceptance of child rights as primary inviolable rights is recent, as is the universal understanding of it.
The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was enacted in order to effectively address sexual abuse and sexual exploitation of children. On May 22, 2012, Parliament passed the Protection of Children from Sexual Offences Act, 2012 (POCSO) and it came into force on November 14, 2012, on the occasion of Children’s Day.
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 also 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-à-vis the child, like a family member, police officer, teacher, or doctor.People who traffic 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.
The POCSO Act provided provisions and guidelines for the establishment of Special Courts for speedy trial of cases exclusively related to sexual offences against children. The Special Courts or child-friendly courts which were created keeping in mind the best interests of the children. Special Courts are vested with special powers under Section 28, to decide only cases under the Protection Of Child Sexual Offences Act. As reported by the National Commission for Protection Child Rights, since the constitution, as per records, there are 605 Special Courts and 478 public prosecutors across the country. But only a handful of these are fully and dedicatedly functional. Goa, Assam, Delhi, Telangana (first state to have a dedicated children court) and Hyderabad are the only States and Union territories with fully functional separate child- friendly courts as mandated under POCSO Act presently.
Some of the challenges faced by POCSO are-
· Various districts do not follow the infrastructural norms laid down very clearly in the Act. It clearly mentions that the premises where the board holds its hearings shall be child-friendly, shall not look like a courtroom in any manner and there shall be no witness boxes. But, in some places where they don’t have a separate place for the hearings of the board, the authorities have allotted some hours a week in the same district court, which in no way meets the requirement of the premises laid down in the Act.
· POCSO and JJ Act penalize juveniles between the age16-18 years for rape and heinous offenses but no Law gives the 16-18 years old the right to consensual sex. The reducing age of puberty and sexual experimentation by adolescents is natural. The State cannot own the body of the individual. Children should not be criminalized for normal sexual behaviour.
· Under Muslim Law, a person is presumed to have attained the age of puberty on the completion of 15 years. Therefore, a boy and a girl who has attained the age of 15 years can validly contract a marriage. POCSO Act treats the Muslim woman who has attained the age of 15 years as a child not capable of giving consent for her marriage and consummation and invites penal consequences for sexual acts.
· Age estimation based on medical evidences is problematic in cases where the mental and biological age of the victim is different.
· S.27 provides that a female doctor shall conduct the medical examination of girl child but there is acute shortage of female medical practitioners, which delays the investigation and treatment.
· In cases of Incest, where a parent may be responsible, S.41 of POCSO is problematic because it requires parent’s consent for medical examination.
· POCSO Act does not recognize cyber stalking, sexting, revenge pornography, cyber bullying and other child cyber offences other than pornography.
· There is pendency of Cases under the POCSO Act in all states, except the states of Andhra Pradesh and Telangana, based on the data communicated by the registries of the respective High Courts. “The rate of pendency is as high as 89% to 95%, Although section 35 of the POCSO Act envisages the conclusion of trial within one year from the date of cognizance, several matters have been pending since 2013, further the Act requires the designation of exclusive courts (section 28; POCSO Act) but the jurisdiction under the Act has been assumed by the regular courts.”
POCSO 2012 has without doubt created a major contribution to grapple the matter of Child Sexual Abuse in India. It has identified and criminalized a variety of unacceptable sexual behaviours that cpore a threat to children. The quantum of cases is increasing rapidly, indicating that the law has created a considerable contribution in educating the public, sensitizing the criminal justice system. The main challenges known within the letter and spirit of the law might produce potential issues for implementation within the Indian context. These challenges are inflexibility concerning age of consent for sex below eighteen years aged; necessary coverage obligations; and the inexact nature of age determination. Further, the Indian government’s need to ban child marriages and defend vulnerable child expressed within the Prohibition of Child Marriage Act , 2006, combined with POCSO 2012 ought to be a deterrent to underage marriages. The ‘judge driven implementation’ of child protection Laws has resulted in effective addressing the monstrous crimes of statutory offence and faster disposal of cases.
There is no denying that there have been positive developments but negatives more often than not outnumber the positive ones and thus it takes us a step backward. With the collective effort of all the stakeholders involved, the authorities can be put to task and the larger goals can be achieved.
Navin Kumar Jaggi