Amid the public outcry raging on the streets over instances of rape of children across the nation, the victimised and abused child suffers in silence. Traumatised, dejected and horrified family members of the unfortunate victims find themselves helpless, confused and unable to cope in the aftermath of the heinous crime.
Even though on May 22, 2012, Parliament passed the Protection of Children from Sexual Offences Act, 2012 (POCSO), which came into force on November 14, 2012, this special law to protect children from offences of sexual assault, sexual harassment and pornography, remains an unimplemented law, unknown to most and beyond the reach of those who need to apply it. Sadly, the result is that POCSO — a necessity in India where 40 per cent of the population is below the age of 18 and where over 53 per cent of children reportedly surveyed in 2007 stated that they had experienced one or more forms of sexual abuse — is not complied with despite being in the statute book. There are demands for stiff penalties, expeditious new laws and fast-track courts although POCSO, as a wholesome law, already says it all.
Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children as the law did not make a distinction between an adult and a child. POCSO deals with sexual offences against persons below 18, who are deemed as children. POCSO provides definitions of “penetrative sexual assault”, “sexual assault” and “sexual harassment” — the offence is considered graver if it is committed by a police officer, public servant, any member of the staff at a remand home, protection or observation home, jail, hospital or educational institution, or by a member of the armed or security forces.
POCSO provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police, who are required to make immediate arrangements for care and protection. The intent to commit an offence, as defined under POCSO, is also punishable, besides abetment of sexual abuse against a child.
Special emphasis has been placed on ensuring the speedy disposal of trials in special children’s courts as well as following of special procedures to keep the accused away from the child at the time of testifying. Awareness
Despite POCSO enjoining the Central and State governments to take measures for giving wide publicity through the media — television, radio and print — and imparting periodic training to all stakeholders on the matters relating to implementation of POCSO’s provisions, the Act is relatively unknown. Shockingly, in the most recent rape case, the Delhi Police included the Act’s provisions in the FIR reportedly after two days of its filing on April 15, 2013. In the infamous Apna Ghar Rohtak shelter home case of May 2012, where over 100 inmates were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still not been invoked against the accused. The passing of the salutary law is more than significant for a variety of reasons. It defines exclusively the crime of sexual offences against children and fulfils the mandatory obligations of India as a signatory to the United Nations Convention on the Rights of The Child, acceded to on December 11, 1992. For monitoring and implementation of the provisions of POCSO, the Act enjoins that the National Commission and State Commissions for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act, 2005, shall ensure the effective implementation of the provisions of POCSO. The Supreme Court had, in a hard-hitting directive issued on February 7, 2013, ordered all States to ensure that the regulatory and monitoring bodies are constituted and made functional. However, till date, such Commissions are either only partially-functional or effectively non-functional.
Acting upon a petition by the National Commission for Protection of Child Rights (NCPCR), the High Court, in a path-breaking judgment rendered on April 9, 2013, directed Punjab, Haryana and Chandigarh to ensure that State Commissions for Protection of Child Rights become fully functional, are headed by a person who has been a Judge of the High Court, and that chairpersons and members are appointed through a transparent selection process.
The High Court further directed mandatory registration of all children’s homes, constitution and notification of children’s courts and appointment of special public prosecutors besides ordering the setting up of a proper panel to select members of various committees to be set up for child welfare.
Hence, the entire machinery for monitoring child rights has been galvanised. It has also been ordered that the National Commissions and State Commissions shall start implementing POCSO’s provisions while discharging their functions and that modules/training programmes be initiated in the Chandigarh Judicial Academy to sensitise all stakeholders on child rights and deal with cases in Children’s Court. It is now for the State governments to implement this beneficial mandate and create an effective machinery to check heinous crimes of gross sexual abuse against children.
The Justice Verma Committee Report, in one of its conclusions on child sexual abuse, holds that “there is an urgent need to audit the performance of all institutions of governance and law and order”.
We need to consolidate our efforts and focus our energies on existing laws rather than looking to amend more laws and making still further newer laws, alien to our culture, society, habits, lifestyles and harsh realities of the common man. Insofar as child sex abuse is concerned, POCSO is a wholesome law. The government must create the machinery to implement it and educate its officers besides all stakeholders on what it contains.
The state must not waste time exploring alternatives when the answers exist in a law made by Parliament for these special offences against children, the most vulnerable section of society.
(The author is a practising lawyer who assisted the High Court in the Apna Ghar case and represented NCPCR in its Child Rights petition. He can be reached at anilmalhotra1960@gmail.com)
