GS Paper II and III

News Excerpt:

The Himachal Pradesh High Court recently ruled that the failure to report sexual crimes against children below 18 years is a bailable offence.

What is POCSO (Protection of Children from Sexual Offences) Act?

• POCSO Actwas enacted by the Parliament in 2012 under the Ministry of Women and Child Development as an important step towards creating a safer environment for the children aged less than 18 years from offences like sexual harassment, sexual assault, and child pornography.
  • Further, to make the punishment for child abuse more stringent, the government also notified the POCSO Act rules, 2020 which enabled the implementation of amendments to the Act.
• The POCSO Act 2012also mandates for the setting up of Special Courts that are better equipped to deal with such offenses in a more effective manner.

Salient Features of POCSO Act:

• It is a gender-neutral law
  • By defining a child as ‘any person’ below the age of 18 years, the POCSO Act sets a gender-neutral tone for the legal framework available to child sexual abuse victims.
  • Consequently, a child of any gender who has been sexually wronged has access to the remedies provided under the act.
• Not reporting abuse is an offence
  • The flagship feature of the POCSO Act, and the most debated one, is the mandatory reporting obligation imposed under Section 19.
  • It requires every person who suspects or has knowledge of a sexual offence being committed against a child to report it to the local police or the Special Juvenile Police Unit.
  • Any person in charge of a company or an institution who fails to report the commission of a sexual offence relating to a subordinate under their control is liable to be punished with imprisonment and a fine under Section 21 of the act.
  • The act, however, exempts children from any non-reporting liabilities. Over the years, criminal actions have been initiated against a number of individuals, particularly those in charge of educational institutions, for hushing up child sexual abuse offences.
• No time limit for reporting abuse
  • The trauma that child sexual abuse victims endure prevents them from voicing their complaints immediately.
  • Hence, in 2018, the Union Ministry of Law and Justice clarified that there is no time or age bar for reporting sexual offences under the POCSO Act. Consequently, a victim can report an offence at any time, even a number of years after the abuse has been committed.
• Maintaining confidentiality of the victim’s identity
  • Section 23 of the POCSO Act prohibits disclosure of the victim’s identity in any form of media, except when permitted by the special courts established under the act.
  • A violation of this section can attract punishments under the act, regardless of whether such disclosures are made in good faith.
  • Reiterating this position, the Supreme Court issued a host of directions in 2018 forbidding, among other things, revealing a POCSO victim’s identity on social media.
• New obligations under the POCSO Rules
  • In 2022, the government introduced a fresh set of POCSO Rules. There are three chief takeaways from these rules for any organization dealing with children in India.
    • Firstly, any institution housing children, or coming in regular contact with them, is required to conduct a periodic police verification and background check of every employee who might interact with a child.
    • Secondly, such an institution must impart regular training to sensitize its employees on child safety and protection.
    • Thirdly, and most importantly, it has to adopt a child protection policy based on the principle of zero tolerance to violence against children. This policy must mirror the child protection policy of the state government in which the organization operates.
  • The State Commissions for the Protection of Child Rights (SCPCRs) and the National Commission for the Protection of Child Rights (NCPCR) have been given the authority to monitor the implementation of the act’s provisions. Both of these authorities are statutory in nature.

What are the challenges towards implementing the POCSO Act?

There are several challenges that are linked to Child Sexual Abuse in India as follows:

• It is a Multi-layered and Multi-dimensional issue: Sexual abuse is a multi-layered issue. Child sexual abuse becomes an even more layered issue. It has a detrimental impact on the child in more than one way. It affects their mental health, physical well-being, and behavior, among other things.
• Increase in unsafe digital usage: The propagation of child abuse has increased many folds with the progress and availability of technology and the internet. Child pornography, online harassment, and bullying are new problems that have surfaced in Indian governance.
• Implementation Issues and ineffectiveness: The POCSO act came into immediate effect in 2012, but its implementation has staggered and, thus, failed its objective, which was to protect children from multiple forms of sexual abuse. The reasons have been listed below;
• Low Conviction Rate: The conviction rate is low under the POCSO act. Only about 32% of the total reported cases get to the stage of conviction. Nearly 90% of cases are pending under this act.
• Delay in Judicial Action: The Act mentions that all cases are to be resolved within a year of the crime being reported. A prolific case like the Kathua Rape case went on for 16 months before a judgment was served.
• Hostility towards the Child: The laws speculate only on the biological age and not the mental age. Hence, there are multiple challenges that are age-dependent.

Supreme Court Judgments related to POCSO Act:

• Shankar Kisanrao Khade vs. State of Maharashtra(2013):  
  • The SC ruled that “the non-reporting of the crime by anybody, after having come to know that a minor child below the age of 18 years was subjected to any sexual assault, is a serious crime.”
  • In this ruling, greater obligation was putted on certain categories of professionals, such as medical practitioners and those in charge of educational institutions to report cases of child sexual abuse to the nearest Juvenile Justice Board, or Special Juvenile Police Unit.
  • This created a conundrum for medical practitioners, since their professional ethics require them to maintain the confidentiality of their clients.
• X vs the Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi (2022):
  • A three-judge SC bench led by Chief Justice DY Chandrachud tried to strike a balance between the mandatory reporting provision under POCSO and the confidentiality provision under the Medical Termination of Pregnancy Act, 1971.
  • The bench pointed to cases where minors might approach a Registered Medical Practitioner (RMP) for a medical termination of pregnancy arising out of consensual sexual activity.
  • It recognized that minors or their guardians might be wary of the mandatory-reporting requirement, to avoid entangling themselves with the legal process, and thus approach an unqualified doctor for abortion instead.

Way Forward:

Thus, in order to ensure the protection and child safety, there is a need for a multifaceted approach -

• Protecting the rights of all children: Children in conflict areas and LGBTQ children need to be specifically targeted for protection, as they are at high risk of sexual violence and exploitation.
• Public awareness and engagement: Engaging with communities and involving them in efforts to prevent child abuse and provide support for survivors is crucial for creating a supportive and protective environment for children.
• Strengthening implementation of POCSO: It needs to be effectively implemented, with improved conviction rates and faster legal processes that prioritize the needs of child survivors.
• Strengthening law enforcement: Law enforcement officials need to be better trained and equipped to effectively implement the provisions of POCSO and respond to cases of child abuse.

Mains PYQs

Q. Examine the main provisions of the National Child Policy and throw light on the status of its implementation. (UPSC 2016)

Q. The multiplicity of various commissions for the vulnerable sections of the society leads to problems of overlapping jurisdiction and duplication of functions. Is it better to merge all commissions into an umbrella Human Rights Commission? Argue your case. (UPSC 2018)