India’s Attempt at Child Protection – The POCSO Act
The National Crime Reporting Bureau reported that crimes against children saw an increase of 529 percent or five times in the decade of 2005-15. Child rape and ‘penetrative sexual assault’ alone quadrupled – these incidents saw a staggering increase of 408 percent. A need was felt for a specialised statute that would provide for the protection of children from ‘offences of sexual assault, sexual harassment and pornography’.
The Protection of Children from Sexual Offences (the ‘POCSO Act’) was thereafter enacted in the year 2012 – to enable strict action against the rising horde of child abuse incidences and to bring in place a gender-neutral act that would serve solely the purpose of protecting an abused child, without any benefit of doubt granted to the perpetrator.
In the case of Eera v. NCT of Delhi, the Apex Court rightfully observed that POCSO was enacted for the primary purpose of making good in law the assertion that children or minors are a separate class of victims in themselves, and to ensure that they are not victims to any sexual crimes. However, long since the Act came into force in 2012, and its subsequent amendment in 2019, there has been resounding discourse about whether POCSO is adequate, or whether the gaps left by the statute are large enough to allow a substantial number of CSA (Child Sexual Abuse) cases to slip through and go unpunished.
The paper attempts to answer the above question and ascertain whether the POCSO needs to be substantiated by provisions of the Indian Penal Code (the ‘IPC’) in order to serve its purpose to the fullest. The paper analyses major factors that impact convictions under the POCSO, provides a parallel analysis with provisions of the IPC that serve the same/similar purpose, and provides a possible roadmap for the path ahead.
The Debate on Consent – The Appropriate Age?
There has been an increasingly popular debate, in recent times, regarding the age of consent in the POCSO as opposed to the one that had been provided in the IPC, as the POCSO sets a higher age bar. The POCSO act defines anyone under the age of eighteen as a child and therefore incapable of giving consent. The Indian Penal Code, the leading penal statute, however, provided 16 years as the age of the consent until the Criminal Law (Amendment) Act, 2013. In recent times, a case has also been made for an amendment to the age of consent under the POCSO.
The National Commission for Protection of Child Rights (NCPCR) recommended the concept of ‘close in age exemption’ – under which two exceptions would be provided. Firstly, for consensual but non-penetrative sexual acts between children above twelve years of age and of the same age or with an age gap of a maximum of two years. Secondly, for consensual penetrative sexual acts between children above fourteen years of age and with an age gap of a maximum of three years. However, these recommendations were not implemented, and the idea of changing the age of consent did not follow through.
It must, however, be acknowledged that the above set of definitions and restricted qualifications for the age of consent may not adequately bring in all cases of CSA under its ambit, and may also backfire with respect to consensual ‘romantic’ endeavours. No fixed age span can adequately cover all bases of such romantic relationships, and it must be understood that the POCSO gives absolutely no importance or significance to consent in this regard. An adequate warning must be issued in this regard to consider all facts and circumstances to ensure the sanctity of consent has been preserved, and there have been no subtly played out manoeuvres to force such consent that the victim might not even be aware of – whether in the form of ‘grooming’ or otherwise.
At this juncture, while the provision in POCSO might appear to be regressive at the outset, it is important to consider that there are extenuating circumstances that have led to such a provision in the statute. The NCRB, in 2015, recorded a total of 8664 POCSO cases that had been registered, nearly fifty percent of these cases were of teens aged sixteen to eighteen. It was not just the NCRB that pointed out this trend, several other studies too showed the worrying statistic.
An argument may be made at this stage that the reason for such worrisome numbers in the sixteen to eighteen age group could be nothing more than a completely normal desire to engage in consensual sexual activities, and because of the strict mandate laid down by the POCSO, such consensual cases too are punishable under the same measures as non-consensual ones. The Bombay High Court went so far as to say that consensual sex under the POCSO is a ‘grey area’. The Calcutta High Court too acquitted a man accused of having consensual sex with a minor, noting that a sexual act had to be committed against the will of the victim for it to be considered rape under the IPC or the POCSO.
Gender Neutrality – The POCSO’s Defining Feature
One of the defining factors of the POCSO Act has been its gender-neutral aspect. In the case of Alakh Alok Srivastava v. Union of India, the Delhi High Court noted that the POCSO act was gender-neutral and did not discriminate among victims on the basis of sex. In any situation, when an argument is made for the use of IPC over POCSO, the biggest obstacle to such a case is the fact that the POCSO punishes for the sexual abuse of both male and female children. The IPC, on the other hand, only criminalises the sexual abuse of women – whether by means of Sec 375 – which defines rape, or Sec 354, which talks about outraging the modesty of a woman. This aspect of the IPC reduces its scope in regards to child sexual abuse, and therefore the IPC is not able to do justice to all children who are survivors of such abuse.
POCSO inherently widens the scope of bringing CSA cases under its ambit by virtue of being gender-neutral. For instance, Sec 7 of the POCSO lays out the conditions for establishing the offence of (non-penetrative) sexual assault, stating that any person who touches the ‘vagina, penis, anus or breast’ of the child with sexual intent is said to have committed the said offence.
In contemporary times, this gender-neutral aspect of the POCSO can be connected plainly and analysed in the context of the recent case Satheesh v. State of Maharashtra. The Bombay High Court, in the above case, held that touching a child inappropriately or with sexual intent over their clothes would not amount to sexual assault, but would only be outraging the modesty of the girl (the child victim was a female), therefore, the case would be governed by the IPC as opposed to the POCSO. Justice Pushpa Ganediwala opined that ‘skin-to-skin’ contact was inherently necessary for sexual assault under the POCSO, as Sec 7 of the Act mentions that a person would have to ‘touch’ the ‘vagina, penis, anus or breast” of any child to commit the offence of sexual assault.
The focus was entirely put on the word ‘touch’. However, a hypothetical case can be made for what the results would be if the same judgement were applied in the case of a male child victim. The child will not find recourse in the IPC, as it is gender-specific (only to women). He would not have a means to justice under the POCSO either if the Court’s opinion of the requirement of skin-to-skin contact were to be held good in law.
Though the Supreme Court later overturned the said judgment terming it as ‘narrow interpretation of the law’, it is certainly a startling reminder of the utility of the POCSO’s gender-neutral provisions. In that regard, a holistic comparison of the two statutes may be carried out to weigh the scales, and best conclude as to the effectiveness of the POCSO over the IPC, or vice versa.
The Verdict
The POCSO has done its part in trying to establish child safe environments which endeavour to protect the victim and not the perpetrator. This has been enacted by means of several provisions – including but not limited to Sec 28(1) – which makes the creation of Special Courts mandatory for the purpose of hearing cases under the POCSO. The Special Courts are also to have in-camera trials to ensure that the environment is made as conducive and safe for the victim as possible.
The POCSO has still received its fair share of criticism. It has often been stated that the rates of child sexual abuse in the country have gone up significantly since the enactment of the POCSO. There is, however, a plausible explanation for this phenomenon. The POCSO has made reporting of any form of CSA mandatory under Sec 19, which may have by far increased the rates of all such cases being reported. The Section imposes a legal obligation of reporting on any person who has knowledge that an act of CSA has occurred or even has a reasonable apprehension that such an act will occur.
It might well be the case, therefore, that while the numbers of actual cases may not have changed drastically, it is only the numbers of reported cases that have gone up. The Act has also widened the scope in which CSA crimes are reported by adding the definitions of aggravated sexual assault and sexual harassment, which were not ever clearly defined in the IPC. Despite all of these instances, it is not as if the POCSO has succeeded in being the Holy Grail for justice. The legitimacy of the aim that POCSO attempts to achieve by heavily punishing perpetrators of CSA has often been affected by various factors. Despite steadily increasing rates of sexual crimes against children, the conviction rate under POCSO has remained dismally low.
When the Delhi High Court heard a PIL in 2018, they were informed that only 18.49 percent of those tried under the POCSO had been convicted. The Delhi High Court noted that in most cases, the prosecutors were unable to uphold their case. In an independently conducted study, it was shown that more often than not the victims or witnesses turned hostile. The situation was even more complicated when the accused was a family member.
The statistics go to show that there are several large gaps in the implementation of the POCSO that require immediate action. The Act has proved to be a watershed moment in the history of Indian legislation, however, there is still a long way to go to ensure the protection of child victims in the country. If minor flaws of POCSO could be fixed, it would prove to be comprehensive and holistic legislation.
About the Author, Suraj Kumar and Indrayani Bhadra [2020-25 batch] are pursuing their Undergraduate in Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.
Criminal Law Research & Review 