“An Analysis on Laws Related to POCSO in India and its Loopholes”

By – VINAMAR JAIN

The Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) was enacted as an
umbrella legislation to prevent and punish all forms of sexual offences against children. The
legislation is result of a sustained effort of the civil society organizations in making India a safe
place for children and provides for not only strict punitive measures but a well thought after
welfare mechanism is also part of the legislative scheme. The legislation not only defines varied
offences of sexual character that may be committed against children, it also lays down child
friendly procedure at every stage of the process of its implementation. In doing so, the POCSO
Act has even deviated from certain established principles of criminal justice system, the most
important being presumption of innocence. The POCSO Act raises twin-presumptions, one
relating to actus reus and the other relating to mens rea. Over the years, the true import and
connotation of these presumptions has drawn attention of the courts and efforts have been made
to interpret the provisions of POCSO Act relating to the presumptions in a manner that in spite of
the twin-presumptions, a fine balance is struck between the rights of the accused and the interest
of the community in seeing that the child sex abuser is convicted.
A study conducted by the Ministry of Women and Child Development, Government of India in
20071 revealed, what was an open secret, that more than half of children in India face some form
of sexual abuse by the time they turn 18 and even more shocking fact was that boys outnumber
girls in facing such abuse. This was probably the wakeup call for the Indian society which has
always remained in denial mode on the issue of child sexual abuse and the policy makers hitherto
living in their ivory castle, had to respond by enacting the Protection of Children from Sexual
Offences Act, 2012 (hereinafter the POCSO Act). The POCSO Act is an outcome of social
realisation that special measures are required for special circumstances. Curiously, this happened
almost after two decades of India's ratification of the United Nations Convention of Rights of
Child, 1989 (UNCRC) in 1992, mandating member States to take all possible measures to
prevent child sexual abuse.
The recent data on crime, compiled and published by the National Crime Record Bureau
(NCRB), paints a grim picture of child sexual abuse cases. As per the latest data available, the
total share of child sexual abuses cases registered under the POCSO Act account for more than
25% of all the offences against children. In the year 2017, there were 32608 cases of child sexual
abuse under the POCSO Act 2and the number grew by 18% to 39827 cases in 2018 3. The
conviction rate depicts an even more worrying trend and has kept hovering around 28%.
Passage of the POCSO Act is a genuine attempt by the legislature to create a desirable
environment by strengthening legal provisions to empower children and protect them from
1
Study on Child Sexual Abuse in India : 2007, available at <https :
//resourcecentre.savethechildren.net/node/4978/pdf/4978.pdf> (accessed on May 19, 2020).
2
Crime in India, 2017 at p. 307
3
Crime in India, 2018 at p. 307
sexual abuse and exploitation. The law aims to protect people under the age of 18 from crimes
such as sexual assault, sexual harassment and child pornography. All of these crimes are well-
defined and carry harsh penalties commensurate with their severity.4

While the POCSO Act is to be viewed as a piece of welfare legislation, its

predominant characteristic lies in the penal provisions and special procedures, all
aimed at ensuring that the accused do not escape the tentacles of law unpunished. It
is, therefore, surprising for many that a special law, having special procedural
safeguards and measures to ensure time-bound trial of child sexual abuse cases has
not come any good when it comes to the rate of conviction.
New innovative court rooms have been set up under the POCSO Act to facilitate the
victims to testify before the court without fear or intimidation. In these courts, the
victim and accused will be into two separate rooms and will be able to see each other
only through closed circuit TV. These are measures to instill confidence in the
victims and to prevent revictimisation.

HOW POCSO PROTECT THE CHILD

At the center of every child sexual abuse prosecution is the story told by the child. The child's
story, in the form of the initial disclosure of abuse, is usually the starting point of the
investigation; and the child's story, in the form of the evidence he or she gives at trial, is usually
the foundation of the prosecution case. Thus, the fundamental objective that needs to be taken
into consideration in all child sexual abuse case is the interest of the child.
Sexual abuse can itself have dire long term negative psychological consequences for its victims,
but the degree of psychic trauma is as much and perhaps more dependent on the way the child
victim is treated after disclosure than at the time of the offence itself.
For ensuring that the levels of psychic trauma are kept at minimal the following two aspects must
be looked into: (i)minimizing the impact of the investigation; (ii) minimizing the trauma of
testifying

MINIMIZING THE IMPACT OF THE INVESTIGATION

One of the primary causes of stress for children in the investigative phase of proceedings is the
number of times a child may have to tell the story of their abuse. Those who may interview the
child in the course of the proceedings might include police officers, social workers, lawyers,

4
The Southern Regional Conference on Protection of Children from Sexual Offences Act, 2012
doctors or mental health professionals. Continually having to repeat a harrowing story may itself
be a harrowing experience for children. The investigating officers and judicial officers must try
to avoid recurring interviews of the victim.

Videotaping the interviews as permitted under section 26(4) of the Act have the benefit of
reducing trauma on the child victim by limiting the number of interviews. Instead of the child
having to retell the account of the abuse multiple times to different agencies (law enforcement
officials, health care providers, social workers, and prosecutors), the interview can be videotaped
and passed along to the different agencies. This encourages and facilitates inter-agency
cooperation. Further Videotaping the interviews with child sexual abuse Victims also helps
increase the reliability of their statements.

MINIMIZING THE TRAUMA OF TESTIFYING.

In common law trials, cross-examination is generally considered to be the primary method of
testing the credibility of witnesses. In fact, cross-examination is arguably the greatest legal
machine ever devised for discovering truth. But there is no doubt that the verbal strategies
commonly employed in cross-examination are more likely to confuse or frighten a child witness
than to "discover the truth." But I'm not suggesting that defense counsel should be prevented
from examining or examining the child's evidence. Therefore, a compromise must be found to
protect the rights of victims and defendants.
Section 33 of the Act with the heading Procedure and powers of Special Courts and Recording of
evidence explicitly states in clause 2 of the Section that the Special Public Prosecutor, or as the
case may be, the counsel appearing for the accused shall, while recording the examination-in-
chief, cross-examination or re-examination of the child, communicate the questions to be put to
the child to the Special Court which shall in turn put those questions to the child. The court has
complete discretion to disallow any question, which is ‘confusing, misleading or phrased in
inappropriate language’. Therefore it is the task of the judge to communicate and explain to the
child the questions put to him or her. In other words, the respective clause ensures complete
protection of the child's interests. Similarly, it is the duty of the judge to set child-friendly
atmosphere while recording of evidence and give frequent breaks for the child. It is also the duty
of the presiding judge to ensure that the child is not called repeatedly to testify in the court.

 The Preamble to POCSO provides that the law should be operated “in a manner that the best
interest and well-being of the child are regarded as being of paramount importance at every
stage, to ensure the healthy, physical, emotional, intellectual and social development of the
child.” However, as the girls are made to drop out from their schools in order to engage in a
matrimonial relationship at an early age, the intellectual and social development of the child
bride is restrained. Also, due to their exploitation at the hands of an adult husband, their physical
and emotional well being is endangered which will turn,deteriorates their health to a large extent.
So, in order to ensure the best interest of child, the need of the hour is to abolish the practice of
child marriage.
 Earlier, exception 2 to section 375 of Penal Code, 1860 provided that sexual intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Thus, sexual intercourse with a minor wife between 15 and 18 years of age was not considered as
rape. This was in direct contravention to section 5(n) of the POCSO Act, 2012, as the act of the
husband constituted aggravated penetrative sexual assault and was punishable under the Act.
Thus, the Act criminalised sexual intercourse in child marriages. However, due to the anomaly
created between IPC and POCSO, section 42-A was inserted in the Criminal Law (Amendment)
Act, 2013 which provided POCSO with an overriding effect over the provisions of IPC. But the
court still continued to give benefit of exception under IPC as can be witnessed in Yunusbhai
Usmanbhai Shaikh v. State of Gujarat 5or Mujamil Abdulsattar Mansuri v. State of Gujarat. This
lacunae has been filled by the Supreme Court in its recent landmark judgement of Independent
Thought v. Union of India which read down this exception and held that sexual intercourse by a
man with his own wife, who is below the age of 18 years is rape. Thus, both the POCSO and IPC
were harmoniously constructed such that any form of sexual intercourse by a man with his wife,
who is below 18 years of age, can be penalised and thus, aid in the prohibition of child marriage.

LOOPHOLES OF THE POCSO LAWS

Besides, most disclosures in child sexual abuse cases occur first to family members and then to
police officers, doctors, nurses and social workers. Often, police officers, doctors, nurses, and
social workers are not specifically trained to question children about sexual abuse; consequently,
untrained questioning can lead to errors in interviewing. Remember a child is more susceptible to
suggestion, and more subject to confusion or imagined memory, than an adult.
Consequently the problem with untrained interviewing is two-fold. First, without specific
training on how to properly question children, questioners are often unaware of developmental
changes in language ability and cognition. This unawareness can result in misinterpretations of
the child's statements and misunderstandings between the questioner and the child. Second,
untrained questioners may engage in suggestive questioning because of professional biases. As a
result, these untrained questioners are unable to obtain reliable and valid information.
This was neither effective nor beneficial for the victim as there are quite a few loopholes.
 Age: The POCSO act mandates that for a girl under the age of 18 seeking abortion, the service
provider should register a complaint of sexual assault with the police. However, the Medical
Termination of Pregnancy Act does not mandate the reporting of the identity of the person who
is abused. This makes the service providers hesitant to provide abortion services to children
under 18.
5
2015 SCC OnLine Guj 6211.
• Consent: The POCSO act doesn't give a clear indication with respect to the need for taking
consent from abused children with regards to the medical examination.
• Medical Examination: Under Section 2 of the act, if a female child is abused, then the medical
examination should be carried by a female doctor. Whereas in cases of emergencies, the
available medical officer has to provide medical care as stated under Section 166-A of IPC. This
leads to a conflict of legal positions when the female doctor is not available.
• Consensual Sexual Act: Sexual intimacy between two consenting adolescents is considered
illegal under the POCSO act, because the act considers sexual act with or between children
below 18 years to be deemed as illegal irrespective of whether consent is given or not.
• Reporting: Even after bringing such legislation, the cases are not usually reported. Institutional
sexual abuse cases are very difficult to coax out of children and rarely reported, due to the
helpless situation of the children. They are constantly under fear and are manipulated to believe
that such an act is caused because of their own blunders. They are vulnerable because of the
authority that these institutional caretakers have on them.
The POCSO Act enumerates numerous initiatives, but as we acknowledge, there will be a
difference only if they are actually put in motion. While good laws and policies can be enacted
by legislatures and executives, their implementation is frequently a challenge. Experience in
India reveals that implementation issues have also stalled attempts to improve the protection of
children.

Jodhpur Asaram Bapu Case6

Asaram Bapu is a self-proclaimed godman who came into the limelight in the early 1970s. In
August 2013, a 16-year-old girl accused him of raping her under the pretext of exercising her
from evil spirits. This created a huge controversy which launched an investigation into Asaram
Bapu's Jodhpur ashram.
What the world did not know was that such “exorcisms” were routine among the godman and his
female devotees and were called “samarpan”. The girls' parents, who were also incidentally
devotees of him, registered FIR with the police. Asaram vehemently protested the allegations
claiming the defense of impotency, which he subsequently failed after passing the Potency Test.
Medical examination of the girl confirmed sexual assault and he was booked under the IPC as
well as the POCSO Act. The family of the girl received death threats from the disciples of the
ashram. Asaram received support from the ruling party and the local MLAs.

Finally respite arrived to the family in April 2018 in the form of a court order pronouncing
Asaram guilty of the rape charges and he was given life imprisonment7
6
https://www.indiatoday.in/india/story/asaram-bapu-jodhpur-hc-rape-case-1602214-2019-09-23
7
“Asaram Rape Case Verdict: Godman Sentenced to Life Imprisonment till Death”, The Economic Times (25-4-2018)
<https://economictimes.indiatimes.com/news/politics-and-nation/asaram-verdict-today-security-beefed-up-in-3-
The POCSO is an excellent piece of law. However, there are some flaws in the law that
undermine its aim and must be addressed in order to fully implement the law. There is a need to
change the act, and a differentiation between situations involving minor girls under the age of 16
and cases involving minor girls over the age of 16 must be made. It is important to amend this
statute in order for it to fulfil its objective. Teens in relationships are a common occurrence in
today’s culture, and those who are mature enough will receive parental support. Unfortunately,
the children do not receive the support that they require from their parents. Instead, parents make
it more difficult for children to have a normal existence. Understanding the society in which we
all live is critical. Parents must understand that their daughter’s life can be ruined if she is
abused. Any adolescent who is in a relationship cannot be severely punished. Even the family of
a minor girl cannot sabotage the young man’s prospects by abusing the POCSO. In addition, in
India’s laws relating to sexual intercourse, this act is gender prejudiced. As a result, POCSO
must be redefined in light of current societal requirements and conditions.

Conclusion

Young kids are a nation’s most valuable asset, and it is the responsibility of the entire society to
care for and nurture them. While the POCSO Act is a positive start in the right direction, there is
a pressing need to enhance key aspects of its implementation as POCSO is being misused to
settle Personal score. It is vital to have a cross-check of the complaint that has been registered
under POCSO act.Our legal system has long been plagued by the abuse of even the most strict
legislation to serve one’s own goals, which are almost always bad. POCSO has also shown to be
no exception. However, the Act’s main goal is to create a clear foundation for dealing with the
threat of child sexual abuse and bringing perpetrators to justice.As long as crime exists, the law
must be in place. Meanwhile, procedures must be developed and rigidly enforced to entirely
abolish the threat of false allegations and the devastating repercussions that follow in order to
ensure that the Act’s actual meaning and purpose are not lost due to its gross violation.

states-media-entry-banned/articleshow/63903700.cms> accessed on 24-10-2019.