Protection of Children from Sexual Offences Act, 2012 (POSCO)

In News: Unaware of the POSCO law, tribals in Kerala marry minors and are punished for rape

• The Protection of Children from Sexual Offences Act, 2012 (POSCO) is no doubt an effective deterrent to sexual exploitation and harassment of minors. But its textual implementation in the tribal belts of Kerala has given rise to a strange situation.

• Many tribals, who are ignorant of the stringent provisions in the Act, marry minor girls, in keeping with their traditional practice, and end up in jail on rape charges. Most cases are registered without any formal complaint from the girls or their parents.

• “The situation is prevalent in almost all tribal belts of Kerala, including Wayanad, Attappady and Idukki. But the worst affected are the Paniya and Kattunaika community members in Wayanad.”

• “Child marriage is common among the Paniya and Kattunaikars tribes and this has remained a part of their custom for many years. These people are not aware of the existence of a law or even the age of majority status under the Indian law,” she said.

Solution:

A massive awareness drive among the tribal communities in Kerala is essential since even educated non-tribal people in the State are ignorant of the provisions under the Act.

“The law needs sensible implementation. There is a blind spot in the law that says it is applicable to all people, irrespective of their customs, practices or their vulnerability.”

What are the offences against children that are covered by POCSO Act?

1. Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)

2. Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)

3. Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8)

4. Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)

5. Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)

6. Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

(Note: Remember only the bold red part)

• This act envisages punishing even abetment or an attempt to commit the offences defined in the act. It recognizes that the intent to commit an offence, even when unsuccessful needs to be penalized. The punishment for the attempt to commit is up to half the punishment prescribed for the commission of the offence.

• This act suggests that any person, who has an apprehension that an offence is likely to be committed or has knowledge that an offence has been committed, has a mandatory obligation to report the matter i.e., media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or photographic facilities.

• Failure to report attracts punishment with imprisonment of up to six months or fine or both.

• It is now mandatory for police to register an FIR in all cases of child abuse. A child’s statement can be recorded even at the child’s residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub-inspector.

• As per this act, the child’s medical examination can be conducted even prior to registration of an FIR. This discretion is left up to the Investigation Officer (IO). The IO has to get the child medically examined in a government hospital or local hospital within 24 hours of receiving information about the offence. This is done with the consent of the child or parent or a competent person whom the child trusts and in their presence.

• Child Welfare Committees (CWC) play a vital role under the POCSO Act, cases registered under this act need to be reported to the CWC within 24 hours of recording the complaint. The CWC should take into account the opinion of the child to decide on the case within three days and conclude whether the child should remain in an institution or be with the family. The CWC should nominate with the consent of the child parent / guardian / other person who the child trusts, a support person to assist the child during the investigation and trial of the case.

• The State Commissions for Protection of Child Rights (SCPCR) has been empowered and with the responsibility of monitoring the implementation of the provisions of the POCSO Act 2012, to conduct inquiries and to report the activities undertaken under the POCSO Act 2012, in its annual report. The commission is also empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The commission can also recommend interim relief, or make recommendations to the state government to effectively redress the matter.

• The rules laid down in this act also had defined a criteria of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.

What are the child-friendly procedures which are envisaged under the POCSO Act?

• At night no child to be detained in the police station.

• The statement of the child to be recorded as spoken by the child.

• Frequent breaks for the child during trial.

• Child not to be called repeatedly to testify.

• For offences under this act the burden of proof is shifted on the accused, keeping in view the vulnerability and innocence of children.

• To prevent misuse of the law, punishment has been provided for false complaints or false information with malicious intent.

• The media has been barred from disclosing the identity of the child without the permission of the special court. The punishment for breaching this provision by media may be from six months to one year.