The brutal sexual assault on a five-year-old child in East Delhi here has come at a time when Delhi has begun robustly implementing the Protection of Children from Sexual Offences (POCSO) Act notified in November last.
However, child rights activists say that POCSO, which has helped overcome shortcomings in the Indian Penal Code in dealing with child victims of sexual abuse, has several structural deficits that need to be addressed.
Delhi has designated special children’s courts for all districts. In January and February, Delhi Police were provided training on various aspects of the POCSO after it was reported that in some cases the police did not charge culprits under the new act and instead were continuing to use the IPC. Before this act came into force, the police used provisions like IPC Section 354 like (assault or criminal force to woman with intent to outrage her modesty), a bailable offence, in cases were girls complained of being indecently touched. However, the corresponding offence under POCSO is gender-neutral.
Besides several child-friendly procedures that policemen and judges are to follow with child victims, the POCSO classifies the offences into penetrative sexual assault (seven years to life imprisonment), aggravated penetrative sexual assault (ten years to life), sexual assault (three to five years), aggravated sexual assault (five to seven years), sexual harassment (three years and fine) and lastly, use of children for pornographic purposes (first conviction–five years; second conviction-seven years). But there are complaints that the police make mistakes on charging offenders under the appropriate category.
Bharti Ali of Haq Centre for Child Rights said POCSO does not offer support to persons like counsellors to the child victim and the family at the point where the offence gets registered--the police stations. Presently, the child has to be produced before a Child Welfare Committee (CWC) which will then offer a support person to the victim. She said the POCSO is lacking several important provisions that would have helped bolster the prosecution in such cases. “The recording of the victim’s statement before a magistrate under Section 164 of the Criminal Procedure Code happens after 2-3 days now. That is a crucial period in which the child victim and family can be influenced and threatened to withdraw his/her complaint. This is especially true in cases where accused are known to the victims. The recording of statements under Section 164 should be immediately done. Evidence collection has to improve. Lastly, a victim-protection scheme was badly needed which was not included in POCSO. This would help ensure that the victim does not turn hostile during the trial,” Ms. Ali said.
Presently, the POCSO recommends a punishment of six months imprisonment to a policeman who does not record a complaint of sexual offence by a child victim. Ms. Ali said increasing this punishment could backfire. “What could end up happening then is that even when cases of elopement are reported policemen will slap the POCSO on the hapless boy. They will be afraid that a stiff sentence could await them if they do not use POCSO in a case involving minors. Sensitisation of police is important to derive the maximum benefit out of POCSO.”