CHILD SEXUAL Mishandle AND THE LAW (POCSO) IN INDIA

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10 months ago

Author:RAHUL KUMAR, a Student of Law student At Asian Law college, Noida

ABSTRACT:

Children are often considered a precious gift to humanity, but they face incredible problems in society, especially due to the serious and widespread problem of child abuse – the crime is considered evil. The Protection of Children from Sexual Offenses Act (POCSO) was created to prevent this crime and focuses on sexual abuse and violence against children. To see that children are an important heritage for people, it is necessary to ensure their protection. They not only play a decisive role in the development of the country, but also serve as a symbol for the future of the country. But child abuse is still a big problem in India and hence the POCSO Act was created to protect child rights. The introduction of the POCSO Act represents an important step in protecting children’s rights and addressing the critical issue of child abuse. Child abuse. This article describes the problem of child abuse and explores the impact of the POCSO Act and the role it plays in solving this serious problem.

Key words – Incredible Problems, Evil, Sexual Offenses, Critical Issue, Child Abuse

INTRODUCTION:

Child abuse is a worldwide problem that affects the vulnerability and dependency of children and causes them many problems such as health problems, discipline, depression, education and gender. The development of any country depends on children, the most vulnerable group in society. Recognizing this, the Government of India is committed to working on child care, health and development, recognizing the important role of education in developing the future of the country.

As of January 31, 2024, India’s population reached 1.436 billion, of which 46% are children. The Constitution of India is committed to protecting the rights of all citizens, paying special attention to the rights of children. Article 15 specifically addresses the needs of children and ensures that fundamental rights and policies are in place to protect children and their well-being. Despite its seriousness, child abuse is a problem that is often overlooked and ignored in public debate. Historically, only child rape was a crime under the law. There are no legal penalties for child abuse, torture, child exploitation and pornography. These laws must be implemented to protect children’s rights and general well-being.

SOME FACTS ABOUT CHILD VIOLENCE CASES IN INDIA

Local complaints according to the National Commission for Women: The states that received the most complaints about sexual violence were Uttar Pradesh, Delhi (41%), Andhra Pradesh (33.87%), Assam (57.27%), and Bihar (33.27%).
According to the National Crime Records Bureau, Rajasthan has a high incidence of: Rajasthan reported the highest number of sexual abuse incidents in India in 2021 with 6,337 rape incidents, an increase of over 19% compared to 2020.
Betrayal of Trust: It is surprising that half of the rapists know the child and often have a sense of trust and responsibility.
Vulnerability for ages 5-12: Children aged 5 to 12 are particularly vulnerable to violence and, unfortunately, many cases in this age group continue to go unreported, creating an urgent need for increased awareness and intervention.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENSES ACT (POCSO) 2012

The Protection of Children from Sexual Offenses Act (POCSO) was enacted in 2012 to protect children from sexual abuse and child abuse. Key features of the law include the establishment of special courts to hear cases related to child abuse. The law also addresses the use of procedures for children to collect evidence, conduct investigations and facilitate the trial process. According to POCSO Act 2012, “child” means a person under the age of 18 years.

The POCSO Act provides for the following sexual offenses against Minors:-

1. Adultery,

2. Child abuse due to sexual abuse

3. Sexual violence,

4. Violence against women,

5. Using children to make nude pictures.

The term ‘aggravating circumstances’ in the POCSO Act refers to circumstances where the child who has been sexually abused suffers from a significant medical condition or where the abuse has been committed by a person who has faith in the child. It is important to note that the provisions of the Act lack gender bias. For the purposes of statutory definitions under this Act, “child” means any person under the age of 18 years. The law intends to provide full coverage to all children against cases of sexual abuse. It is noteworthy that the Act includes measures to create a child-friendly atmosphere at all stages of legal education. This ruling, which emphasizes fundamental principles, is of vital importance for “the most curious children.”

KEY PROVISIONS OF THE POCSO ACT:

Quick information about the Children’s Protection Board:

Any police officer who receives a report of child abuse or related incidents must report the matter immediately and in any event within 24 hours to the Child Welfare Board.

Civilian clothing for police officers:

Police officers must wear plain clothes when recording a child’s statement to ensure that the child feels comfortable and is not reprimanded.

Credible entity in recording statements:

A child’s statement about a crime must be recorded in front of someone the child trusts.

Forensic Evidence Collection Protocol:

Forensic evidence collection through a child’s health examination must be performed solely by a female doctor in the presence of a person trusted by the child.

Creation of special courts:

Pursuant to this law, special courts are established to facilitate speedy trials of child sex crime cases.

Privacy and Security:

It is the responsibility of these courts to protect the child’s identity and ensure that the child is not exposed to the defendant during the recording of the statement.

Kid Friendly Reviews:

Children will not be forced to testify again, but will have the opportunity to testify through video recording.

Timely case resolution:

Emphasizing efficiency, cases should be disposed of within one year from the date of notification to avoid unnecessary delays in judicial proceedings.

The court must provide for the presence of an interpreter, special educator, or other professional if the child requires assistance.
In order to support children and their families, compensation must be paid for the child’s treatment and rehabilitation.

PUNISHMENT ACCORDING TO LAW:

Penetrative sexual assault (Section 4): The law provides for a minimum of seven years to a maximum of life imprisonment and a fine.
Aggravated Penetrative Sexual Assault (Section 6): Aggravated Penetrative Sexual Assault carries a minimum sentence of 10 years, which can be extended to life in prison as well as fines.
Aggravated Sexual Assault without Penetration by a Person in a Position of Trust (Section 10): The penalty is a minimum of five years and can be extended to seven years with a fine.
Sexual assault without penetration with sexual intent (Section 10): Non-penetrative sexual assault committed with sexual intent is punishable by three to five years in prison and a fine.
Sexual harassment (Section 12): section 12 stipulates a fine of up to three years for sexual harassment
When using a minor for pornographic purposes (section 14): For this offence, section 14(1) provides for a penalty of five years and fine. Repeat convictions increase the sentence to seven years and a fine.
Attempted Violation (Section 18): Article 18 of the Act provides for a penalty of one year and a fine for attempted crime.
Failure to report a violation (Section 21): Article 21 of the law provides for a penalty of six months in prison and a fine for failure to report a crime.

THE ISSUES AND CONTROVERSIES SURROUNDING THE POCSO ACT 2012 ARE AS FOLLOWS:

Discrepancies in health screening: A conflict arises between the POCSO Act and the Indian Penal Code over who should conduct medical examinations, especially in the absence of a female doctor.
Questions regarding consent for medical examination: Clear provisions are needed because there is a lack of clarity in the law regarding the circumstances under which a child may refuse a medical examination.
Consensual sexual intimacy: The law makes sexual activity between teenagers or consenting adults illegal, despite proposals to make exceptions. This runs counter to recent amendments that set the age of consent at 18.
Complexities of child marriage: The conflict between secular and personal laws on child marriage creates problems under the POCSO Act, which makes both child and sexual marriage illegal.
Treatment Cost: Although the law requires the provision of free medical services, problems arise when expensive procedures are required, emphasizing the government’s responsibility to reimburse them.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD (CRC) IS A GLOBAL TREATY IN WHICH EACH COUNTRY COMMITS TO PROTECT THE RIGHTS OF CHILDREN:

Articles 34 and 35 of the CRC specifically require states to protect children from all forms of sexual exploitation and abuse.

Protections include prohibiting children from being forced into sexual activity, preventing child prostitution and exploiting children in the production of pornography. States have an obligation to strengthen global efforts to protect children by taking preventive measures against child abduction, trafficking or trafficking.

CASE LAWS:

In the case of State of Madhya Pradesh v. Anup Singh (2015) Anoop Singh was accused of sexual assault of a minor, sparking interest in the need for speedy trials under the POCSO Act.

The court held that The decision highlights the need for strong provisions to protect children and highlights the importance of speedy trials.

Varun Bhagat v. State of Chhattisgarh (2017): The case centered on whether the child’s statement recorded under Section 164 of the CrPC under Chhattisgarh’s POCSO Act is admissible as evidence. The apex court established guidelines to ensure the admissibility of statements while promoting a judicial proceeding that takes into account the welfare of the child.

Regarding Independent thought vs. Union of India (2017) The Supreme Court considered the criminalization of sexual relations with minor wives under the age of 18, strengthening protections for children even within marriage. The judgment upheld the need to protect minors from sexual exploitation within marriage in accordance with the basic principles of the POCSO Act.

In the case of Baij Nath Shah Vs. Madhya Pradesh (2019) This case highlighted the importance of procedural safeguards under the POCSO Act and child-friendly trial practices during Baij Nath Shah’s trial. The supreme court held that decision upholds the core principles of the POCSO Act and ensured a fair and protective trial process for child victims.

CONCLUSION

The POCSO Act of 2012 stands as a significant milestone in addressing child abuse in India, comprehensively recognizing various forms of sexual exploitation. While laudable, it faces certain challenges. Child victims require psychological support and counseling in a friendly manner, urging society to adopt a holistic approach towards combating child abuse. Acknowledging that child sexual abuse cases are severely underreported, there is an epidemic proportion of such incidents in India. Medical professionals attending to abused children should prioritize a friendly and least distressing approach. The government must enhance the implementation of the POCSO Act by establishing effective mechanisms to combat crimes against children and regularly inspecting institutions. Lack of awareness remains a hindrance, necessitating increased media publicity. Improving transparency in the adjudication process and ensuring prompt police action are crucial steps. While the deterrent effect of the Act is noteworthy, eradicating the issue from the grassroots requires a collective consciousness infused with pure feelings of love and care.

References:-

Book referened-

Protection Of Children FromSexual Offence Act (2012)
Constitutional Law of India (Dr-J.N Pandey)
Indian Penal Code (1862)

Websites