Author: Dewanshi Bhatt, Bennett University
To the Point
With the passage of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), children were protected from sexual abuse and exploitation. The Act has been crucial in bringing justice to female victims in particular, while being gender-neutral and intended for those under the age of 18. Implementation difficulties, court delays, abuse, and clauses that overlap with other laws, particularly when the victim is a woman who is on the verge of being a minority or is in a consensual relationship, undermine its efficacy.
Penetrative and non-penetrative assault, sexual harassment, and the use of minors for pornographic purposes are among the many sexual offences that are made illegal under the Act. It requires child-friendly practices throughout the investigation and trial, like having support staff present and taking statements in a secure setting. The severity of the way sexual assault of children is handled by the law is reflected in the establishment of special courts to guarantee prompt trials and stringent deadlines for finishing of proceedings.
Notwithstanding its progressive goals, the Act’s practical application is fraught with difficulties. These include insensitive enforcement practices, systematic lags in investigation and decision-making, and difficulties in managing instances involving minors in consensual relationships. The POCSO Act has occasionally been used as a weapon by condemning parents or other community members against girls who are on the verge of adulthood, particularly in remote or socially conservative environments. As a result, even if the law has given minor girls more legal options, there are still ethical and practical issues with its efficient use.
Use of Legal Jargon
Section 30 of the POCSO Act places the burden of proof on the person being charged by presuming Mens Rea, or a guilty mentality.
POCSO’s recognition and non-bailability of offences guarantee prompt action and the accused’s detention.
Section 28 is the idea of special courts guarantees prompt trials.
A reversal burden of proof is introduced in Section 29, meaning that unless the accused is proven innocent, they are deemed guilty.
The way the State performs its protective duties for minors reflects the Doctrine of Parens Patriae.
The Proof
The National Crime Records Bureau (NCRB) reports a concerning rise in POCSO instances, according to statistical research. More than 53,000 cases were filed under the Act in 2021 alone. Interestingly, a significant portion of victims are women, suggesting that although the Act is gender-inclusive, girls disproportionately benefit from its protection in the actual world.
The presence of hostile witnesses, inadequate evidence collecting, forensic examination delays, and trial delays, conviction rates are still low around 30% nationwide despite high registration.
Abstract
The POCSO Act serves as one of the country’s most extensive and progressive child protection laws. Although its concept and goal are admirable, there are difficulties with its ground-level execution. The judicial system frequently fails to uphold child-friendly practices, and delays are caused by overworked special courts. Additionally, its influence is lessened by stakeholder ignorance, police insensitivity, and abuse in situations involving elopement or consenting adolescent relationships. The Act is both a sword and a shield for women, particularly teenage girls; it can be used to bring about justice but can also be used as a weapon in specific situations.
However, a number of real-world and legal obstacles have hindered the POCSO Act’s ability to effectively deliver justice and deterrent, even with its well-meaning foundation. These include insufficient victim support networks, judicial delays, a shortage of competent staff, and procedural errors made during investigations. Furthermore, the Act’s application to situations involving adolescents engaging in consensual sexual encounters has sparked worries about overcriminalization and the infringement of young girls’ bodily autonomy and choice.
Interpretation difficulties are also brought about by the clauses that overlap with other legislation, which include the Indian Penal Code and statutes pertaining to child marriage. Therefore, even while the POCSO Act is unquestionably a landmark piece of legislation in India’s child protection framework, its actual application shows a complicated interaction between systemic flaws, societal attitudes, and legal protections.
Case Laws
1.X v. State of Maharashtra (2022)
A further level of difficulty in POCSO prosecutions consensual teenage sexual relationships was brought to light in this case. The court acknowledged the delicate nature of this case, which included a 17-year-old girl and her spouse having a consensual relationship. The court recognised the requirement for a deeper strategy that differentiates between consensual teenage relationships and exploitative exploitation, even if the POCSO Act’s harsh wording criminalises all such activity involving minors. The ongoing judicial efforts to strike a balance between legal protection and the developing knowledge of teenage autonomy and agency are reflected in this case.
2.Satish Ragde v. State of Maharashtra (2021)
On the basis that there has been no skin-to-skin contact, the Bombay High Court widely absolved the defendants in this case, which is also known as the “skin-to-skin” case. The Supreme Court subsequently overturned this decision, ruling that sexual assault under the POCSO Act does not necessarily need instantaneous physical contact. The Court maintained the fundamental and protective intent of the law by reaffirming that sexual intention, not the method of contact, is the decisive factor.
3. State of Maharashtra v. Bandu @ Daulat (2018)
In this case, which is one of the landmark cases under the POCSO Act, the Bombay High Court emphasised the need of child-sensitive processes throughout the trial. The court ordered that favourable circumstances be provided, particularly while recording statements or undertaking cross-examinations, acknowledging the psychological toll that judicial proceedings take on victims. In order to reduce stress and preserve the victim’s dignity, this case emphasised the judiciary’s duty to enforce the procedural protections outlined in the POCSO Act.
4. Independent Thought v. Union of India(2017)
The Supreme Court struck down the marital rape exemption in Section 375 of the Indian Penal Code concerning underage girls in the landmark 2017 case. The Court ruled that, regardless of marital status, having sex with a minor wife (under the age of eighteen) is rape and is thus illegal under the POCSO Act. This landmark decision delivered a clear message about the illegality of child marriage and harmonised the POCSO Act with child protection principles.
Conclusion
One of India’s key tools for fighting sexual offences against children, particularly women, is the POCSO Act. But legal effectiveness cannot be isolated. Public awareness initiatives, gender-sensitive training, improved institutional processes, and consistent judicial interpretation are all necessary for the Act. When there are sincere, consensual relationships between women, especially teenage girls, legislation must be protecting without being punishing. Finding a balance between children’s rights and legal prudence is crucial for the future.
Despite its strength, the POCSO Act nevertheless has a lot of real-world challenges. Delays in investigations, inadequate evidence gathering, insensitivity on the part of police and judges, and a lack of proper victim support systems are the main reasons why the conviction rate is still low. Furthermore, because the legislation strictly prohibits any sexual behaviour involving minors, it has been abused in voluntary teenage acquaintances, frequently including young girls in passionate relationships. In these situations, the law runs the risk of turning from a protective to a punishing instrument. In addition to burdening the legal system, the inability to clearly discern between actual cases of abuse and consensual relationships may unfairly affect the lives of both the accused and the victim.
FAQ’s
Q1. Are girls the only ones covered by the POCSO Act?
The answer is no the Act is gender-inclusive and covers all children under the age of eighteen, including transgender people and boys and girls.
Q2. Is it possible to prosecute teens for having consensual relationships under POCSO?
Indeed, the Act makes it illegal to engage in any sexual behaviour with minors, even if it is consenting. In adolescent love relationships, this has led to controversial uses.
Q3. What is the penalty for penetrative sexual assault under POCSO?
According to Section 4 of the Act, the penalty varies from 10 years to life in prison, contingent on the seriousness of the offence.
Q4. Do POCSO cases have their own courts?
Indeed, the Act requires Special Courts to provide quick and kid-friendly trials.
Q5. Does POCSO permit the accused to be presumed innocent?
No, Section 29 reverses the usual burden of proof, making the accused deemed guilty unless proven innocent.
Q6. What kind of assistance does POCSO offer to female victims?
During the inquiry and trial, victims have access to free medical treatment, counselling, and kid-friendly procedures.
Q7. How long does it take to finish a trial under POCSO?
In order to ensure prompt justice, the Special Court is required by Section 35 to conclude the trial within a year of the offence being taken into consideration.
Q8. Is it possible for a woman to be charged according to the POCSO Act?
Indeed. The POCSO Act is gender-inclusive with regard to both the victim and the criminal, despite the fact that the majority of instances involve male offenders. This means that if a woman commits any of the offences listed in the Act against a child, such as sexual assault, bullying, or abetment, she may face charges under the Act.
Q9. What occurs if a POCSO offence goes unreported?
According to Section 21, the maximum penalty for wilfully withholding or failing to report details regarding a POCSO violation is six months in jail, a fine, or both. Penalties may be harsher for employees of organisations or educational institutions.
Q10. Do the terms of POCSO conflict with those of other laws, such as the Juvenile Justice Act or the Indian Penal Code?
Indeed. Both the POCSO Act and the Indian Penal Code (IPC) are used to prosecute crimes in numerous cases, particularly those involving rape, kidnapping, or abduction. Similar to this, situations involving young offenders or victims in need of care and protection may also fall under the purview of the Juvenile Justice (Care and Protection) Act, 2015.
References
1 Criminal Appeals No. 822-823 of 2023
2 Criminal Appeal no. 161 of 2020
3 (2018) 11 SCC 163
4 AIR 2017 SUPREME COURT 4904, AIR 2018
SC (CRIMINAL) 229, (2017) 12 SCALE 621, (2017) 4 CURCRIR 54, (2017) 4 KER LJ 11, 2017
(4) KLT SN 42 (SC)
