The non-constitution of the State Commission for Protection of Child Rights (SCPCR) has affected monitoring of the implementation of Protection of Children from Sexual Offences (POCSO) Act, notified in November.
The SCPCR, along with the National Commission for Protection of Child Rights, is the nodal authority for implementation of POCSO in the States.
In the wake of three different incidents of rape of girls under 18 years of age reported from different parts of the State last week, the absence of SCPCR as the appellate authority under POCSO is stark.
In three cases reported in a span of five days, victims include a 7-year-old in Pudukottai, an 11-year-old in Nagapattinam and a 16-year-old in Salem. In each of these cases, section 376 of the Indian Penal Code (rape) was invoked, rather than the POCSO Act, a law framed to deal with sexual offences against children, and which keeps in mind vulnerabilities of the survivors that the IPC does not address.
Amid nationwide demands for fast-track courts and stringency to ensure certainty of punishment in rape cases, a law that ensures special courts for completion of trials within a year, apart from safeguards for the child survivor, has been ignored.
Taking cognisance of the reports of failure to invoke the POCSO Act in rape cases here, Shantha Sinha, Chairperson of NCPCR, said the Commission had already written to Chief Secretaries of the States in November alerting them about the urgency to set up SCPCRs.
Speaking to The Hindu over phone, Ms. Sinha, however, rejected the idea of the Act being invoked retrospectively in the current cases of sexual assault. “Retrospective alteration of the sections defeats the spirit of enacting the Act. The law lays out procedures for recording the statement and conducting medical tests on the child. When everything is violated, what point would retrospective application serve,” asked Ms. Sinha.
The Act defines a child as under 18 years of age, and covers under its ambit any form of sexual violence that includes penetrative sexual assault (imprisonment of not less than 7 years or life), aggravated penetrative assault (not less than 10 years or life), sexual assault (three to five years and fine), aggravated sexual assault (five to seven years and fine), sexual harassment (three years and fine), and use of child for pornographic purposes (five to seven years and fine) -- each of the offence clearly defined for the first time in law.
For the first time, the burden of proof is shifted from the survivor to the accused. Abetment of offence invites the same punishment as commission, and attempt to commit an offence invites half the punishment as commission.
The POCSO Act forbids aggressive questioning, character assassination, and irresponsible reporting by media, including revealing the identity of the survivor (punishable up to a year). A person of trust should be present with the child during medical examination.
“I had written to the Chief Secretaries seeking a sense of urgency in this. SCPCR is the appellate authority for not just POCSO Act but also the Right to Free and Compulsory Education. Tamil Nadu is progressive on many counts, but it is disheartening that the State is yet to set up SCPCR,” Ms. Sinha said.
Among the States, Gujarat and northeastern States are yet to set up SCPCR, while West Bengal has just notified.
In 2011, over 33,098 cases of crimes against children were reported, registering a 24 per cent increase from the previous year, with 30 per cent increase in rape, and 27 per cent increase in trafficking of minor girls.
