POCSO ACT, 2012: IMPLEMENTATION AND IMPACT

INTRODUCTION

It is believed that adults represent and offer wisdom, whereas children symbolize hope. Children are said to be incarnations of gods themselves with India being among the most religious countries and yet heinous stature of crimes are committed by the hour with these innocent children. These children who are considered to be the future of the nation , the progressive generation , our much-needed hope in this cruel world, suffer the unimaginable measure of brutality and savagery in these so-called modern times. It is almost unbelievable, the severity of the crimes or the sexual assault that are committed on minors. Thus, it was more than necessary for there to be a legislation that can keep this cruelty in check and impose strict consequences on the criminals so they should shiver at even the thought of committing such inhuman acts. In lieu of the situation, in 2012 an act that may be called the Protection of Children from Sexual Offences also called as POCSO act, was introduced. The act was introduced separately from the IPC as the act is gender-neutral and when it says a ‘child’ it means either a girl or boy under the age of eighteen years whereas the IPC doesn’t consider boys to be subject to sexual assault or harassment. The special feature of the act can be the wide acceptance of different kinds of sexual activities into assaults and the fine categorization of those activities into “aggravated penetrative sexual assaults”, “aggravated sexual assaults”, “penetrative sexual assaults”, “ sexual assaults”, “sexual harassment” and it specifically lists the punishments for each category and requires strict adherence. The act offers many guidelines as to how, where, when, the proceeding and trial should be taking place when a child files a complaint under the POCSO act.

IMPLEMENTATION

The implementation of any statute requires the concerned authorities to interpret the provisions given strictly and require them to keep in mind the objective of the law at hand. If the interpretation due to some reason is misunderstood, it can result in endangering the rights of the said citizen and questioning the duties of the administrators of justice. When the Bombay high court decided that simply groping the child’s breasts with her clothes on, thus no skin-to-skin contact made, does not constitute sexual assault, [1] we are forced to ask questions like, does the severity of the offense committed goes into the hands of the judiciary? Does the judiciary, when they interpret the law, gets to decide the brutality of the crime committed? The Bombay HC verdict had created shockwaves among people and child rights on a national level.[2] Considering a POCSO conviction as an IPC section 354 matter, as a case of molestation was an incorrect move. There should be strict adherence to the guidelines mentioned in the act. The act tries to make the judicial system child friendly. It demands separate special courts for the hearing of such cases, the presence of a trusted adult of the child during the hearing, the child cannot be taken to the police station in any condition, the child should not be made to be in any contact with the accused during the hearing of the case in any situation, child, if needed, should be allowed breaks in between the hearing of the case, the hearing can be recorded for further reference so that the child doesn’t have to come again and again and many other guidelines like these should be strictly followed by the court. If there is one thing to be noticed it’s that there is no consistency in the verdicts passed under the POCSO Act, which is all the more reason why there should be timely intervention or modification in the ways the courts interpret the provisions of the act as the Supreme Court overruled the Bombay HC verdict [3]and said that the “sexual intent” should be the criteria for sexual assault and not whether there was a “skin – to – skin contact” or not. The act must be interpreted by the judiciary in a way that the purpose of forming the same is fulfilled each and every time it is enacted. Sensitization among the people who deal with these matters is the dire need and for them to be impartial towards gender stereotyping is of utmost importance. Narrowing down the scope of the act beats the primary essence of the POCSO act. Careless and unobservant judgments passed can result in erroneous precedents for the future. 

IMPACT

An act as powerful as the POCSO act can have an impact of both the positive and negative nature according to how it is interpreted and implemented. There is a thin line between the correct usage of any act and the misinterpretation of the same. It basically depends on the bench hearing the case, they bear the foremost duty to deliver justice and not let the accused take any undue advantage. In State of Maharashtra v. Satish Jalinder Shinde[4], it was observed that the consent of a minor is no consent and mere friendliness with the minor doesn’t make it acceptable to perform sexual activities with the minor, this broadened the scope of the act and is the example of the positive impact of the act. The Bombay HC judgment on the other hand is the negative, misinterpretation of the act as in my opinion it bases its judgment on the mere fact that the clothes weren’t taken off which can also, in further scope of interpretation, mean that a person can sexually abuse a child wearing hand gloves, making no skin – to – skin contact, and get away with it. We need to keep in mind that the act is especially issued to protect the minors from the varied aspects of sexual activities and crimes when and if, the interpretation of the provisions of the act is not aligned with the sole purpose of the act it can humongously endanger the rights of the child and challenge the very concept of justice. A failure to implement the act in a precise manner can have deep impacts on the victim both mentally and physically and can bring people to the crossroads of questioning the essence and the very existence of justice or giving up on the system of law altogether.

CONCLUSION

The proper and precise interpretation of laws and strict adherence to the guidelines of the act is the need of the hour. Sensitization among the judges and their proper training regarding these kinds of cases should be a qualification to lead the same. Seeing matters with a wider view, with an inclusive approach with respect to the purpose of the act should be the prime focus. Gender neutrality should also be encouraged by the judiciary. Misguided and careless interpretations result in the accused laughing at the faces of their victims and the victims becoming more and more hopeless. Realizing the severity of the offenses committed and accurately analyzing them is the key element to reaching the road that leads to justice.

Author(s) Name: AVNI KAPOOR (GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY)

References:

[1] Satish Ragde v State of Maharashtra 2021, criminal appeal no.161 of 2020

[2] Apeksha Mishra, ’POCSO Act and Its Interpretation’ (Jus Corpus, 26 November 2021) <https://www.juscorpus.com/pocso-act-and-its-interpretation/ > accessed 14 April 2022

[3] Ibid 1

[4]  State of Maharashtra v satish jalindar shinde 2021, case no.315 of 2019, para34

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