Updated: Apr 1, 2021
India is a diverse country with different cultures and beliefs with the largest number of children in the world. To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come into force with effect in 2012 along with the Rules framed there under. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography. It defines a child as any individual below 18 years and provides protection to all children from sexual abuse.
This Act also defines different forms of sexual abuse, including penetrative and non-penetrative assault and deems a sexual assault to be “aggravated” under certain circumstances. The said Act prescribes rigorous punishment graded as per the gravity of the offence.
Before the coming of POSCO Act offences reported were governed by the Indian Penal Code. There was not any specific Law under which offenders could be prosecuted. In many cases it was observed that offences committed were not mentioned under it (IPC).POSCO Act largely encompassed offences of child sexual abuse. This legislation (POSCO) was much needed for criminalizing sexual offence against children.
FEATURES OF THE POSCO ACT
· The Act defines different forms of offences, sexual abuse, pornographic offence etc. All sexual abuses are defined under this Act.
· The Act makes the reporting of abuse mandatory.
· It provides for the protection of minors during the judicial process.
· The Act has feature of giving out compensation to the victim.
· The said Act prescribes rigorous punishment graded as per the gravity of offence.
· The courts which have been designated as POSCO Court will have the jurisdiction to hear the matter under this Act.
· Child friendly procedure is there every stage is planned with keeping in mind that a child should not feel uncomfortable as well as the privacy of the child must be protected.
WHO ARE THE OFFENDERS UNDER POSCO ACT?
· Public Servant
· The person in the position of authority.
· Owner or staff of any institution providing services to the child.
· Management/staff of hospital, educational or religious institution.
· A juvenile can also be an offender.
WHAT IS CHILD SEXUAL ABUSE?
According to World Health Organization (WHO) child sexual abuse is an inappropriate sexual behavior with a child and involving a child in any sexual activity that he or she does not fully apprehend, is unable to give informed consent to, or that violates the laws.
WHO IS JUVENILE OFFENDER?
We know that all children are wealth and assets of a nation's future and a healthy environment should be provided to them so that they can become a civilized citizen of a country. It is the responsibility of the government and the society along with his parents to look that the child becomes socially active and mentally conscious equipped with skills and do something productive for the country rather than becoming a criminal. The children who are involved in criminal or in any illegal activity for them the Government must correct and reform them for this every country have their own juvenile justice act. Juvenile is considered as a child who has not completed a specific age mentioned in law of the country and under that age he cannot be treated as an adult. Different country have different age limit for juvenile.
The Juvenile Justice Act 1986 was repealed by the 2000 Juvenile Justice Act and after this amendment, the age of minor girls and boys have changed. The minimum age fixed for both genders is 18 years of age. Now, after the amendment in 2000, Setion 2(12) of the Juvenile Justice Act defines “a juvenile is said to be a person who has not completed the age of 18 years during the time of the commission of an offence”. In other words any criminal activity done of child (below 18 years) which violates the Law is said to be juvenile offenders.
Recently, in the 2015 amendment of Juveniles Justice and Care Act, if a heinous offence is said to have been committed by a 16 years old then the juvenile justice board shall conduct a preliminary assessment with regards to a child’s physical and mental capacities, his abilities and the circumstances in which the particular offence is said to have been committed.
The “Legislature has to keep pace with changing societal needs” and bring amendments to the Act, the Madras High Court said while quashing criminal proceedings against an adolescent boy facing charges under the stringent law. The remarks were made while highlighting the misuse of the POSCO Act.
According to my point of view as the main objective of the POSCO is to punish the offenders, consensual relationship is no offence. All the provisions prescribed under POSCO is for punishing the offender for the grievous crimes against child but it does not intend to punish adolescent who is remotely connected with the minor. The cases of nature where teenagers involved in consensual relationships the scheme of this Act did not intend to bring within its scope.
Punishing an adolescent boy who enters into a relationship with a minor girl and by treating him as an offender was not the objective of the POSCO Act.
Having the legislation in place does not guarantee the smooth functioning of the justice delivery system. POSCO Act has been established to exclusively deal with cases of sexual offences against children. Promoting such things will cause the total misuse of POSCO Act.
It is rightly said that the legislature has to keep changing according to the need of the society and bring necessary changes in Law especially in a stringent law like POSCO Act as this clause is not the primary objective of the Act. The legislature should take into consideration cases of this nature involving adolescents involved in consensual relationships and must bring necessary amendments under the Act.
A full stop has to be inserted somewhere and this is exactly what madras High Court has done in this notable case. There can be no denying or disputing it. The Law makers must amend the POSCO Act so adolescent shall be guilty for an act which is consensual and not prescribed under the provisions of POSCO Act.
Talking about Juvenile Justice According to my view when a child performs any crime their mental state is different that from an adult, so they must be taken proper care. Children have flexible mindset the Government and the Society should always take care of them with love and generosity and remove the criminal mindset and bring them back into normal life and also provide them with all the necessary things that they need to grow up into a responsible person of the society. Though every country have Juvenile Justice Act and they had also amended it to make it modern and more particular but they must properly exercise it, the society must also support the Government to reduce juvenile crimes . The juvenile crimes are increasing which need to be focused and the Government must also look after the factors for which juvenile crimes are increasing and try to resolve it.
The present legislation for sexual offence against children was much needed. The effectiveness of a law depends largely on the people responsible for its implementation and application. State governments will have to ensure that all the requirements specified under the law are in place
It is now for the Central and State Governments to improvise (by adding reformative measures) and implement this law by creating effective machinery to check heinous crimes of gross sexual abuse against children by enlightening all the concerned about it.
§ Ministry of Women and Child Development, Government of India. “Report of the Working Group on Child Rights. https://ipleaders.in
§ BREAKING THE SILENCE Child Sexual Abuse in India” https://ipleaders.in