The need to review and revise the Protection of Children from Sexual Offences Act (POCSO)
Introduction
The objective of the Protection of Children from Sexual Offences Act (stated POCSO hereafter) is for the welfare of children and to prevent any sexual offences against them. According to the law, the legal age to consent to sexual intercourse is the age of 18, which makes sexual engagement before the age of 18 illegal. To prevent such acts of sexual offences against children below the age of 18, the law has some stringent punishments that result from some years in jail to rigorous imprisonment. The onus is on the accused to prove that he/she is not guilty of committing the act on which he/she has been accused. Though with the passing years more focus has been drawn on the issues that need to be worked on to make the law more efficient.
Skin-to-skin contact
There have been judgements from time and time again that shed some light on the working of this law, and yet there have been judgements that raise questions regarding the same. In one of the recent judgments given by the Bombay High Court, in the case of Satish v. State of Maharashtra(1), the interpretation of skin-to-skin contact in the context of sexual assault to the child was produced that stirred a reaction in the public. So much so, that a plea by the National Commission for Women has been accepted to be heard by the Supreme Court.
In the given case, a 39 years old man took a 12 years old girl to his house on the promise of guava, thereafter he groped her and tried removing her clothes. The act was stopped when she started screaming and afterwards her mother started looking for her. The sessions court convicted him on the offences punishable under Section 8 of the POCSO Act and Section 354 of the IPC. The Bombay High Court acquitted the man, on the charge of Section 7 of the POCSO Act, which defines ‘sexual assault’ while convicted him and sentenced him for imprisonment for one year on the charge of 354 of IPC, which is related to the outraging of the modesty of a woman. The reasoning behind removing the charge under the POCSO Act was because the man groped the girl without removing her clothes or inserting his hands inside her clothes, meaning there lacked a ‘skin-to-skin’ contact i.e. a physical contact, in this interaction, hence it did not fall under the ambit of this provision. Section 7 of the POCSO act states that “7. Sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.”
Many have criticised this verdict and a need to clarify the importance of the ‘skin-to-skin’ contact under this provision has arisen. A former member of the Maharashtra Childs Commission, Pravin Ghuge, emphasised that “The entire idea behind the legislation(POCSO) is to protect children and if the courts apply IPC and not POCSO in a case that involves the minor, the purpose of the Act is defeated,”(2) The emphasis of ‘skin-to-skin’ contact was never put to include in the act within the ambit of Section 7 of the POCSO, because with this reasoning, in the future there could be acts of groping of children protected by a single layer of clothing. If this view is further allowed, the definition of the act would be accepted in a narrower sense, contradicting the purpose of the Act. Attorney General K.K. Venugopal, while presenting the matter to the Apex Court said, this verdict, if allowed, would set a ‘dangerous precedent’. The Supreme Court took cognizance almost instantly.
Age for consent
In another case of Vijayalakshmi and Anr. v. State and Anr. (3), in the Court of the Madras High Court, the judge Justice N. Anand Venkatesh observed in the judgement that, “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act”. In the case, a petition has been filed by the Complainant and the victim girl, jointly seeking for quashing the proceedings pending against the 2nd Respondent who is facing trial before the Court below for offences under Section 366 of the Indian Penal Code, 1806, Section 6 of the Prevention of Child from Sexual Offences, 2012
and Section 9 of the Prohibition of the Child Marriage Act, 2006. (4)The victim girl knew the second respondent, they were in a relationship, because of which they ran away from their homes to get married. This caused a police complaint where the second respondent was charged with the criminal proceedings punishable under the POCSO Act. Now, the mother of the victim girl just wants to quash the previous proceedings so that her daughter could get married.
Keeping these facts into account, the learned judge emphasised the misuse of POCSO, he observed that “it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain
sections of the society to abuse the process of law.”
Noticing the developmental changes that adolescents go through like physical, biological, and neurological changes. These changes occur due to social experiences and contexts, affect the general cognition, decision making, and behaviour of the adolescents. It is only natural that these changes translate into romantic relationships between adolescents while addressing their identity and intimacy needs.
In the context of India, where the socio-culture does not allow this developmental stage freely. It allows families to influence the romantic ideologies of their children, the act of romantic involvement is considered a taboo that damages the dignity and honour of the family, especially considering the factor of caste and class in our society. Considering the severity of the punishments that this act attracts, and the cultural ramifications on the youth involved, this should be dealt with more responsibility and should not be abused for the sake of familial opinions.
The learned judge observed the rising number of cases filed under POCSO, which were often the result of families misusing the provisions. He observed that the legislation should keep these changes in mind and introduce reforms to the Act. The Act needs to change according to the changing times.
The bench observed “As rightly recognized by the Learned Single Judge of this Court in Sabari’s Case(5), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment, and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child.”
The question of whether the Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent. The judge relied upon previous Judgements by the Honourable Supreme Court, in the cases of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujarat(6) and The State of Madhya Pradesh Vs. Dhruv Gurjar and Another(7), guidelines were given to exercise the jurisdiction under Section 482 of Cr.P.C, where the crime can be quashed only if the crime in question is purely individual and does not hamper the public interest, when both the parties agree with the same. Since in the present case, the crime in question was purely individual, it could be quashed by the Court. Thereby, the Court quashed the criminal proceedings against the second respondent.
When considering the present case, there arises a pressing need to acknowledge the misuse of POSCO, an act that came into place intending to prevent all kinds of sexual offences against children. Children that are below 18 years of age are not legal to give sexual consent according to the law. And seeking justice, the punishment that the act attracts is stringent and the onus to prove the innocence of the accused falls on the accused. This is a growing concern in the legal world, that is the misuse of POCSO in an attempt to settle personal scores, mostly by the parents who do not approve of the relationship of their children that come with the age of adolescence, i.e., 16-18. There is a strong value attached to premarital sex, and it is considered a sin against the value system.
In another case, in the Kerala High Court, the order read, “A sizeable percentage of POCSO cases were initiated for settling family disputes/political or personal vengeance. In these cases also, the investigating officers do not care to cross the limits of 164 statements (sic) to find the truth. Care should be taken to ensure POCSO Act is not allowed to be misused by persons with vested interests using kids as pawns,” the order reads. (8)
Several more similar cases have found their way to the various Courts of the country. With the changing society, a more adjusting and accepting environment is required, to deal with adolescent romantic involvement. There needs to be an active dialogue to address this issue so that to fulfil the objective to protect children, this provision does not end up being used to get youth punished for something natural. With this issue in mind, a special leave petition has been filed in the Supreme Court raising the issue of whether two adolescent people, come into a relationship consensually, can be punished under the POCSO Act.
Historical cases
With offences that are committed against children, there has been a history of late reporting, where the cases weren’t reported as soon as the act was committed. Several incidents and studies have shown that children avoid telling their parents about the acts that were done to them, the reason for this behaviour is myriad- usually, there is some guilt on the part of the children over the abuse that they have faced, sometimes they face the fear that the incident might be received in anger on the part of the parents, some don’t realize the gravity of the act until they have matured enough and fully understand what they went through in reality, and sometimes they fear the person who has committed the crime and doesn’t speak up in fear of what they might do next. And the option to directly go to the police station is out of the question. There are plenty of psychological reasons why sexual offences against children don't get reported unlike crimes of other nature.
In every crime, there is a certain period within which the reporting of the crime could be taken cognizance. This is governed by the provisions of the CRPC, by the statute of limitation. Earlier the crime had to be reported within three years from the date it was committed. In the year 2018, an online petition was started by a woman named Purnima Govindarajulu, who was an abuse survivor. When she was a child, a family member used to sexually abuse her for a long period, which she didn’t recognise as abuse. When she grew up, she realised what had happened, and after reaching out to other members of the family, one confessed that she was treated the same way, while others had noticed him around her room at night. When she approached the police, she was given the response that due to statute of limitation she could not report the crime. Her online petition found huge support by the people of India, resulting in the Ministry of Law and Justice clarifying that no time limit would be applied to the cases under POCSO. What the reform still lacks is clarification about what happens to the children who were victims of sexual assault before 2012(when the act was enacted). There is a need to address the issue of historical reporting of the crimes that were committed before the year 2012.
Conclusion
A separate law whose subject matter was solely children was desperately needed because India has a history of crimes against children being done and often ignored and gone unreported due to fear of attracting shame to the whole family. The formulation of this law was the answer to the emerging need to address the issue. And the punishments are stringent to ensure that it deters others from doing the same in the future. Despite these provisions, the rate of child abuse in India is more than in most countries. According to NCRB data, in the year 2018, almost 100 children were sexually abused daily in the country. These numbers are a pitiful representation of the reality which needs to be dealt with efficiently. Apart from the suggestions for reformation mentioned above, a drive to educate all- children and adult, regarding the nature and the gravity of these offences should be done, that makes people more aware of the current situation.
References
CRIMINAL APPEAL NO. 161 OF 2020
Crl.O.P.No.232 of 2021 and Crl.M.P.No.109 of 2021
Crl.O.P.No.232 of 2021 and Crl.M.P.No.109 of 2021
2019 (3) MLJ Crl 110
2017 9 SCC 641
(2019) 2 MLJ Crl 10
Parkhi Singh
Faculty of Law, University of Delhi
Name of the writer - Parkhi Singh
Course - L.L.B. (3rd year)
Name of Institution - Faculty of law, University of Delhi
E-mail Id - parkhi.singh70@gmail.com