WOMEN & CHILD LAW

The C in POCSO Act:

A Critical Analysis

Submitted By:
Shikhar Agarwal

Contents
Introduction.3-5
The POCSO Act6-29
Overview.6-10
Multi-sectoral approach..8-9
Punishments for Offences in the Act9-10
Procedures under POCSO Act..11-19
Medical Examination of the Child...11
Reporting of Cases..11-12
Ensuring Care and Protection of the Child.12-14
Recording Statement of the Child..14-15
Trial before the Special Court16-17
Role of Commissions for Protection of Child Rights.17-19
The advantages of proceeding under the POCSO Act
compared to the Indian Penal Code (IPC)...19
Critical Analysis20-25
Why Paedophilia Should Be Made A Crime..20-23
A Child Law in Oblivion23-25
POCSO Act in News.26-27
Conclusion28-29
Bibliography.30

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INTRODUCTION
The Protection of Children from Sexual Offences (POCSO) Act 2012 is applicable to the
whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years
and provides protection to all children under the age of 18 years from sexual abuse. It also
intends to protect the child through all stages of judicial process and gives paramount
importance to the principle of "best interest of the child".
Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault,
sexual harassment, and using a child for pornographic purposes are the five offences against
children that are covered by this act. 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 subinspector.
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.

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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.
Some of the child-friendly procedures which are envisaged under the POCSO Act are as
follows:

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.
For speedy trial, the evidence of the child is to be recorded within a period of 30 days. Also,
the Special Court is to complete the trial within one year.

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The act casts duty on state to spread awareness to the general public, of the provisions of this
act through media i.e. television, radio and print at regular intervals.
The POCSO Act of 2012 looks into a support system for children through a friendly
atmosphere in the criminal justice system with the existing machinery i.e. the CWC and the
commission. The positive aspect is the appointment of the support person for the child who
would assist during investigation, pre-trial, trial and post-trial. The major challenge also
would be convergence between different entities under different legislations. The act makes it
mandatory to report to the police about any offence defined under POCSO Act 2012. The
recent decision of the cabinet in a bill to reduce the age of consent for sex to 16 years will
mean that the protection given under this law to protect children from sexual crimes will be
restricted to the children who are 16 years of age. There is a fear that this would end up
taking away safeguards available to victims under the POCSO Act, especially girls in the 1618 age bracket. The benefits of POCSO Act would trickle down to the child only if this act is

implemented in its true sense and spirit by all the agencies.1

Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013
<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms>

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THE POCSO ACT

There is no trust more sacred than the one the world holds with children. There is no duty
more important than ensuring that their rights are respected, that their welfare is protected,
that their lives are free from fear and that they can grow up in peace
Kofi Annan
Overview
To deal with child sexual abuse cases, the Government has brought in a special law, namely,
The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come
into force with effect from 14th November, 2012 along with the Rules framed thereunder.
The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from
the offences of sexual assault, sexual harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation and speedy trial of offences
through designated Special Courts.
The said Act defines a child as any person below eighteen years of age, and defines different
forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual
harassment and pornography, and deems a sexual assault to be aggravated under certain
circumstances, such as when the abused child is mentally ill or when the abuse is committed
by a person in a position of trust or authority vis--vis the child, like a family member, police
officer, teacher, or doctor. People who traffick children for sexual purposes are also
punishable under the provisions relating to abetment in the said Act. The said Act prescribes
stringent punishment graded as per the gravity of the offence, with a maximum term of
rigorous imprisonment for life, and fine.
In keeping with the best international child protection standards, the said Act also provides
for mandatory reporting of sexual offences. This casts a legal duty upon a person who has
knowledge that a child has been sexually abused to report the offence; if he fails to do so, he
may be punished with six months imprisonment and/ or a fine.

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The said Act also casts the police in the role of child protectors during the investigative
process. Thus, the police personnel receiving a report of sexual abuse of a child are given the
responsibility of making urgent arrangements for the care and protection of the child, such as
obtaining emergency medical treatment for the child and placing the child in a shelter home,
should the need arise. The police are also required to bring the matter to the attention of the
Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may
then proceed where required to make further arrangements for the safety and security of the
child.
The said Act makes provisions for the medical examination of the child in a manner designed
to cause as little distress as possible. The examination is to be carried out in the presence of
the parent or other person whom the child trusts, and in the case of a female child, by a
female doctor.
The said Act provides for Special Courts that conduct the trial in-camera and without
revealing the identity of the child, in a child-friendly manner. Hence, the child may have a
parent or other trusted person present at the time of testifying and can call for assistance from
an interpreter, special educator, or other professional while giving evidence; further, the child
is not to be called repeatedly to testify in court and may testify through video-link rather than
in a courtroom. Above all, the said Act stipulates that a case of child sexual abuse must be
disposed of within one year from the date the offence is reported. It also provides for the
Special Court to determine the amount of compensation to be paid to a child who has been
sexually abused, so that this money can then be used for the childs medical treatment and
rehabilitation.
The said Act recognises almost every known form of sexual abuse against children as
punishable offences, and makes the different agencies of the State, such as the police,
judiciary and child protection machinery, collaborators in securing justice for a sexually
abused child. Further, by providing for a child-friendly judicial process, the said Act
encourages children who have been victims of sexual abuse to report the offence and seek
redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time,
the said Act will provide a means not only to report and punish those who abuse and exploit
the innocence of children, but also prove an effective deterrent in curbing the occurrence of
these offences.

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The said Act is to be implemented with the active participation of the State Governments.
Under Section 39 of the said Act, the State Government is required to frame guidelines for
the use of persons including non-governmental organisations, professionals and experts or
persons trained in and having knowledge of psychology, social work, physical health, mental
health and child development to assist the child at the trial and pre-trial stage. The following
guidelines are Model Guidelines formulated by the Central Government, based on which the
State Governments can then frame more extensive and specific guidelines as per their
specific needs.
Multi-sectoral Approach
Children who have been sexually abused are not only traumatised as a result of their
experience, but are also more vulnerable to further and repeated abuse and at risk of
secondary victimisation at the hands of the justice delivery process. A common example is
the handling of cases of child victims by unspecialized police, prosecutors and judges who
are not trained in justice for children, childrens rights or how to deal and communicate with
victim children and their families. The lack of clear guidelines and procedures on how to deal
with child victims and their families in a child sensitive manner during the court process
affects the quality of trial and evidence and trial process; the child is subjected in such cases
to repeated probing and questioning, made to relive the traumatic incident again and again,
and thereby suffer in the retelling. Another instance is that of child victims not receiving
proper medical support and counselling, causing physical and mental distress to the child and
his/her family and hampering the healing process for the child. In addition to this, families
and child victims are unable to benefit from legal aid as the appropriate agencies are not
involved at the right stage in the procedure. Child victims do not receive timely advice and
assistance so as to be free from a fear of family breakdowns and social isolation if the
offender is a relative and/or the breadwinner of the family. There is also no system of
supervision for checking the welfare and well-being of child victims during and after the
court process, particularly when the abuser is the parent or guardian of the child.
There is thus a need for prompt and systematic multi-sectoral intervention that will be
conducive to the justice delivery process, minimise the risks of health problems, enhance the
recovery of the child and prevent further trauma. This can be achieved through action that
addresses the needs of the child effectively, not only to protect him from further abuse and
help him deal with his/her trauma but also to ensure that he is not re-victimised in the course
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of the justice delivery process. In addition to this, it also has to be ensured that the child is
steered towards the path of healing, recovery and rehabilitation.
The prevention of child sexual abuse, protection of victims, justice delivery, and
rehabilitation of victims are not isolated issues. The achievement of these objectives requires
a co-ordinated response of all the key players, which include the police, prosecution, Courts,
medical institutions, psychologists and counsellors, as well as institutions that provide social
services to the children. The protection of children from violence and abuse thus requires an
integrated and coordinated approach. Needless to say, the identification and understanding of
the roles of each of these professionals is crucial to avoid duplication and promote effective
convergence.
A multi-sectoral approach, while mindful of childrens rights, would address the problems
related to uncoordinated interagency mechanisms that child victims face in the legal and
social service process. It will provide a frame work within which the service providers will
work, and provide a mechanism for information-sharing to help the victim. The process of
investigation and referral of cases will also improve. It is envisaged that such an approach
will ensure support for the child and his/her family, including assistance with police and court
proceedings, arrangements for emergency shelter for children, arrangements for counselling,
therapy, and training courses, appropriate rehabilitative services including protective custody
and foster care, if necessary; information on and access to financial assistance, where
appropriate, and monitoring of family involvement.
The responsibility of supporting children who have been sexually abused should be embraced
by the whole community, but it is the professionals that work in this field who play an
important role in enabling the healing process. These guidelines are therefore aimed at
various professionals involved in providing services to the child and other affected persons
including his/her family. Their objective is to foster better response mechanisms involving
coordination amongst these professionals, so as to result in the evolution of a multi-sectoral,
multi-disciplinary approach that will go a long way in achieving the objectives of the POCSO
Act, 2012.
Punishments for Offences in the Act

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 Penetrative Sexual Assault (Section 3) Not less than seven years which may extend
to imprisonment for life, and fine (Section 4)
Aggravated Penetrative Sexual Assault (Section 5) - Not less than ten years which
may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7) Not less than three years which may extend to five years,
and fine (Section 8)
Aggravated Sexual Assault (Section 9) Not less than five years which may extend to
seven years, and fine (Section 10)
Sexual Harassment of the Child (Section 11) Three years and fine (Section 12)
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))
The Act provides for the establishment of Special Courts for trial of offences under the Act,
keeping the best interest of the child as of paramount importance at every stage of the judicial
process. The Act incorporates child friendly procedures for reporting, recording of evidence,

investigation and trial of offences.2

Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry of
Women and Child Development, September 2013
<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf >

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Procedures under POCSO Act

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prescribes five
sexual offences against children - penetrative sexual assault, aggravated penetrative sexual
assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for
pornographic purposes. Abetment of or an attempt to commit these offences is also
punishable under the Act. These offences are gender neutral vis--vis the perpetrator as well
as the victim. The Act requires the State Governments to designate the Sessions Court in each
district as a Special Court to try offences under the Act. If, however, a Childrens Court under
the Commissions for Protection of Child Rights Act, 2005 or Special Court for a similar
purpose has been notified in a district, then that court will try offences under this Act.
The process laid down under the Act and POCSO Rules, 2012 for recording of complaints
and trial of sexual offences against children is explained below:
Medical Examination of the Child
A medical examination of a child can be conducted even before a FIR is filed or a complaint
is registered. It must be conducted by a registered medical practitioner in a government
hospital or a hospital run by a local authority within 24 hours from the time of receiving
information about the commission of offence. If such practitioner is not available, the
examination can be conducted by any other registered medical practitioner with the consent
of the child or a person competent to give consent on his or her behalf. If the victim is a girl
child, the examination must be conducted by a woman doctor. The medical examination must
be conducted in the presence of the parent or any other person in whom the child reposes
trust or confidence. If a parent or such other person cannot be present, for any reason, the
medical examination must be conducted in the presence of a woman nominated by the head
of the medical institution.
Reporting of Cases
Who can report?
Any person (including the child) who has an apprehension that an offence under the POCSO
Act is likely to be committed or has knowledge that an offence has been committed has a
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mandatory obligation to report the matter. An express obligation has also been vested upon
media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities,
to report a case if they come across materials or objects that are sexually exploitative of
children.
Failure to report is punishable with imprisonment of upto six months or fine or both. This
penalty is, however, not applicable to a child.
Whom should the case be reported do?
A case must be reported to the Special Juvenile Police Unit (SJPU) or the local police. The
police or the SJPU must then record the report in writing, ascribe an entry number, read the
report over to the informant for verification, and enter it in a book. A FIR must be registered
and its copy must be handed to the informant free of charge.
Language of the report
If a case is reported by a child, it must be recorded in simple language so that the child
understands what is being recorded. If it is being recorded in a language that the child does
not understand, a qualified translator or interpreter must be provided to the child.
Ensuring Care and Protection of the Child
The police or the SJPU must take the following steps within 24 hours of the report of the
case:
1. Upon recording the case, if the police or SJPU is satisfied that the child is in need of
care and protection, it must record its reasons in writing and immediately arrange to
give the child necessary care and protection. This would include admitting the child
into a shelter home or to the nearest hospital. The police must produce the child
before the CWC if the child is found to be in need of care and protection or has no
parental support.
2. If the medical examination was not conducted prior to reporting the case, it must be
done in accordance with Section 164A of the Code of Criminal Procedure. Samples
must be collected for the purpose of the forensic tests and sent to the forensic
laboratory at the earliest.
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3. If the child is in need of urgent medical care and protection, she or he must be taken
for emergency medical care to the nearest hospital or medical care facility centre.
Such care should be administered in the presence of the parent/guardian/other person
in whom the child has trust and confidence. A medical practitioner, hospital or
medical facility centre providing such emergency medical care cannot demand legal
or magisterial requisition or documentation before providing such care.
4. The police or the SJPU must report the matter to the CWC and the Special Court and
also indicate the steps taken to extend care and protection to the child. If a Special
Court has not been designated the matter must then be reported to the Sessions Court.
Role of the CWC
The CWCs role in matters under the POCSO Act is as follows:
1. Upon receiving a report from the police or the SJPU stating that the child against
whom an offence has been committed is a child in need of care and protection, the
CWC must utilize its powers under the Juvenile Justice (Care and Protection) of
Children Act, 2000 to determine within three days as to whether a child should be
taken out of the custody of his family or shared household and placed in a childrens
home or shelter home. The child and his parent/guardian/other person whom the child
trusts and with whom the child has been living must be informed that such a process
is underway. The CWC must take into account the opinion or preference of the child
along with the best interests of the child while making this determination. The
capacity of the parents/parent/other person whom the child trusts to provide for the
immediate care and protection needs of the child, the need for the child to remain with
parent/family/extended family, childs age and level of maturity, gender, social and
economic background, disability (if any), history of family violence, and other factors
must be considered by the CWC.
2. In all cases under the Act reported to it by the police or the SJPU, the CWC can
provide a support person to assist the child during the investigation and trial of the
case with the consent of the child or the childs parent/guardian/other person in whom
the child has trust or confidence. The support person could be a person or an
organisation working in the field of child rights or child protection, or an official of a
childrens home or shelter home having custody of the child, or a person employed by
the DCPU. The child and his/her family can, however, seek assistance from any
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person or organisation of their choice. Upon their request, the CWC can even
terminate the services of the support person assigned to them.

Vital Information that must be provided to the Child

The police or the SJPU must inform the child and his or her parent, guardian, support person,
or other person whom the child trusts about the following:
Availability of support services including counselling. If required, they must also
assist in connecting the child and his or her family to persons providing support
services.
Childs right to legal aid and legal representation.
Developments, including the arrest of the accused, applications filed, and court
proceedings.
Availability of public and private emergency and crisis services.
Procedural steps involved in a criminal prosecution.
Availability of victims compensation benefits.
Status of the investigation of the crime, to the extent it is appropriate to inform the
victim and to the extent that it will not interfere with the investigation.
Filing of charges against a suspected offender.
Schedule of court proceedings that the child is either required to attend or is entitled
to attend.
Bail, release or detention status of an offender or suspected offender.
Rendering of a verdict after trial.
Sentence imposed on an offender.
Recording Statement of the Child
Recording of statement by the police
Where the childs statement must be recorded?
A childs statement must be recorded at his or her residence or a place where he or she
usually resides or at a place of his or her choice. Under no circumstances can a child be
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detained in the police station in the night. The police officer must also try and ensure that the
statement is recorded by audio-visual means.

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By whom should the statement be recorded?

As far as practicable, the statement must be recorded by a woman police officer not below the
rank of a sub-inspector. She should not be in uniform when the statement is recorded. The
assistance of a qualified translator or interpreter can be taken while recording the statement.
The statement must be recorded in the presence of parents or any other person in whom the
child trusts or has confidence.
What steps must the police take to protect the child?
While examining the child, the police officer investigating the case must ensure that the child
does not come in contact with the accused at any point. The identity of the child must also be
protected from the media unless the Special Court, in the interest of the child, directs
otherwise.
What measures must be taken to record the statement of a child with disabilities?
The police officer must seek the assistance of a qualified special educator or a person familiar
with the manner of communication of the child or an expert in that field, while recording the
statement of a child with mental or physical disability.
Recording of Statement by the Magistrate
How must the statement be recorded?
A Magistrate recording the statement of a child under Section 164 of the Code of Criminal
Procedure (CrPC) must record it in the exact language spoken by the child. The statement
must be recorded in the presence of parents or any other person in whom the child trusts or
has confidence. The assistance of a qualified translator or interpreter can be taken while
recording the statement.The Magistrate must also try and ensure that the statement is
recorded by audio-visual means. The Magistrate must also provide the child and his or her
parents or representative, a copy of the police report on the matter.
What measures must be taken to record the statement of a child with disabilities?

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The Magistrate must seek the assistance of a qualified special educator or a person familiar
with the manner of communication of the child or an expert in that field, while recording the
statement of a child with mental or physical disability.
Trial before the Special Court
All trials before the Special Court must be conducted in camera and in the presence of the
parents of the child or any other person the child trusts.
Examination, cross-examination, and re-examination
In the course of recording the examination-in-chief, cross-examination or re-examination, all
questions to the child by the Special Public Prosecutor or the counsel for the accused must be
communicated to the Special Court which must then put the questions to the child.
Recording of Evidence
The evidence of the child must be recorded within 30 days of the Special Court having taken
cognizance of the offence. If it is delayed, reasons will have to be recorded by the Special
Court explaining the delay. At the time of recording evidence, the Special Court will have to
ensure that the child is not exposed to the accused and also that the accused is in a position to
hear the statement of the child and communicate with his advocate. This can be done by
recording the evidence through video-conferencing or by using single visibility mirrors or
curtains. Assistance of a qualified translator or interpreter or special educator can be sought
while recording the evidence of a child including a child with mental or physical disability.
Responsibilities of the Special Court
The Special Court must take the following measures while conducting the trial under the Act:
If required, permit frequent breaks for the child during the trial.
Create a child-friendly atmosphere by allowing a family member, a guardian, a friend
or a relative, in whom the child has trust or confidence, to be present in the court.
Ensure that the child is not called repeatedly to testify in court.
Not allow aggressive questioning or character assassination of the child and ensure
that dignity of the child is maintained at all times.

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 Ensure that the identity of the child is not disclosed at any time during the course of
investigation or trial. Such disclosure can be permitted it is in the interest of the child
after reasons are recorded in writing.
Ensure that trial is completed, as far as possible, within one year from the date of
taking cognizance of the offence.
The Special Court can also order interim compensation to meet the immediate needs of the
child for relief and rehabilitation at any stage after registration of the FIR. Such an order can
be passed based on an application by or behalf of the victim or by the court on its own. It can
also recommend the award of compensation if the child has suffered loss or injury and where
the accused is convicted, discharged, acquitted, or is not traceable or identifiable. The
compensation awarded is payable by the State Government from the Victims Compensation
Fund or other schemes or funds established for the purpose of compensating and
rehabilitating victims under Section 357A of the CrPC. Such compensation is payable within
30 days of the receipt of the order.
Role of Commissions for Protection of Child Rights
Under the POCSO Act, the National Commission for Protection of Child Rights and the State
Commissions for Protection of Child Rights have been vested with the responsibilities of:
a) Monitoring the implementation of the provisions of the POCSO Act 2012, as per the
prescribed Rules.
b) Conduct inquiries into matters relating to an offence under the Act.
c) Reporting the activities undertaken under the POCSO Act 2012, in its Annual Report.
The Commissions must monitor the designation of Special Courts, appointment of Public
Prosecutors, formulation of guidelines for use of NGOs, professionals and experts to be
associated with the pre-trial and trial stage, dissemination of information about the Act
through media to promote awareness among general public, children, parents and guardians.
The Commissions can also call for a report on any specific case of child sexual abuse falling
within the jurisdiction of a CWC. While inquiring into matters relating to an offence under
the Act, they can utilize the powers available to them under the Commissions for Protection
of Child Rights Act, 2005. Post-inquiry, they can recommend to the government to initiate

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proceedings for prosecution, recommend interim relief, or make any other recommendations
to effectively redress the matter. They can also approach the High Court or Supreme Court
for orders, directions, or writs.
The Act recognizes that the intent to commit an offence, even when unsuccessful for
whatever reason, needs to be penalized. The attempt to commit an offence under the Act has
been made liable for punishment for upto half the punishment prescribed for the commission
of the offence.
The Act also provides for punishment for abetment of the offence, which is the same as for
the commission of the offence. This would cover trafficking of children for sexual purposes.
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual
Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the
accused. This provision has been made keeping in view the greater vulnerability and
innocence of children. At the same time, to prevent misuse of the law, punishment has been
provided for making false complaint or proving false information with malicious intent. Such
punishment has been kept relatively light (six months) to encourage reporting. If false
complaint is made against a child, punishment is higher (one year).
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.
For speedy trial, the Act provides for the evidence of the child to be recorded within a period
of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far
as possible.
To provide for relief and rehabilitation of the child, as soon as the complaint is made to the
Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements
to give the child, care and protection such as admitting the child into shelter home or to the
nearest hospital within twenty-four hours of the report. The SJPU or the local police are also
required to report the matter to the Child Welfare Committee within 24 hours of recording the
complaint, for long term rehabilitation of the child.

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The Act casts a duty on the Central and State Governments to spread awareness through
media including the television, radio and the print media at regular intervals to make the
general public, children as well as their parents and guardians aware of the provisions of this
Act.
The National Commission for the Protection of Child Rights (NCPCR) and State
Commissions for the Protection of Child Rights (SCPCRs) have been made the designated
authority to monitor the implementation of the Act.
The advantages of proceeding under the POCSO Act compared to the Indian Penal
Code (IPC)?3
The IPC does not differentiate between adult and child victims whereas the POCSO Act
specifically deals with sexual offences committed against children. The POCSO Act
penalises sexual offences committed against both male and female child victims whereas the
IPC does not take into account rape committed on a male child. The POCSO Act provides for
the establishment of Special Courts for trial of offences and incorporates child-friendly
procedures for reporting, recording of evidence, investigation and trial of offences. The Rules
made under the POCSO Act provide for award of compensation, including interim
compensation, to a child victim on the basis of criteria such as loss of education or
employment opportunities, as well as consequences suffered as a result of the abuse such as
disease, disability and pregnancy.

FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights
<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+Latest.pdf?MOD=AJPERES
&lmod=-580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055>

Page | 19

Page | 20

Critical Analysis
Why Paedophilia Should Be Made A Crime4
Bengaluru hasnt been a pensioners paradise ever since it turned into Silicon Plateau, home
to the largest tech-savvy, transient-migrant population of any Indian city. People come to this
city mostly to earn enough to be able to leave. In the decade between the Censuses 2001 and
2011, Bengaluru added to its 740 sq km a full 3 million people or 35.5 percent of its
current population. This once-pleasant urbe minutas is today one of the five most unsafe
cities for women in India. The citys growth rate of crimes against women (2011-12) was a
stunning 10 percent, shooting up from 5.6 percent of the national average to 6.1 percent in
one year.
But because it is also, paradoxically, home to a population that is as educated and
conscientised as it is transient, the popular abreaction to the rape of a six-year-old student
inside her school on 2 July was immediate and massive.
The Class I student of Vibgyor High School in East Bengaluru first complained to her mother
of pain. A week later, the parents found out that two instructors had raped her. They lodged a
police complaint on 14 July. The school authorities tried to hush up the matter and were
initially reluctant to share the CCTV footage, leading to public outrage against the institution.
On 20 July, the police arrested one of the accused, skating instructor Mustafa alias Munna,
30, under Section 376 (rape) of the IPC and Sections 4 and 6 of Protection of Children from
Sexual Offences (POCSO) Act, 2012.
To already traumatised parents of other children, the revelation made by the then police
commissioner Raghavendra Auradkar came as a jolt. In his press conference after the arrest,
Auradkar informed that the accused used to click photographs of children, and show
obscene videos to children.
As is usual with the police, their delayed reaction to the crime was to strike out at everyone in
range: One of the casualties of the crackdown was Auradkar himself, who has been replaced
by a new commissioner, MN Reddi.

http://www.tehelka.com/why-paedophilia-should-be-made-a-crime/

Page | 21

Mustafa had been sacked in 2011 from Deens Academy in the city for touching girls
inappropriately. However, neither his previous school thought it fit to register a police
complaint against him, nor did the present school check his antecedents before hiring him. In
its defence, Deens Academy said he was sacked for gross misconduct but there was no
culpable incident whatsoever that required them to report him to the police.
It was hard for some parents to swallow. But not for the many child rights activists working
on the ground. While this incident managed to get attention, hundreds of similar incidents
have not, says Kushi Kushalappa, coordinator for the Collaborative Child Response Unit
project, Enfold Proactive Health Trust.
India is a signatory to the UN Convention of the Rights of the Child, 1992, and is party to the
UN Declaration on the Rights of the Child, 1959. But various governments have failed utterly
to even nominally safeguard the interests of children.
Kushalappa points out that as far back as 2007, a government report, Study on Child Abuse in
India, had highlighted the seriousness of the issue. Even a cursory glance shows how deeprooted the problem is in our society.
According to the study, children in the 5-12 age group reported the highest levels of abuse.
Of the 12,000 children surveyed, 53.22 percent reported having faced one or more forms of
sexual abuse; 21.90 percent reported facing severe forms of sexual abuse and 50.76 percent,
other forms of sexual abuse. Boys and girls are equally at risk of abuse. Moreover, 70
percent of abused children never reported the matter to anyone, says Kushalappa.
Street children, child labourers and children in institutional care reported the highest
incidence of sexual assault. And in half of the cases, the perpetrator was someone the child
knew or in a position of trust and authority.
No one wants to believe that anyone would do something so terrible to a child, so there is a
collective denial about how pervasive child abuse is. Yet, everyone knows a family where
sexual abuse is taking place. In most cases, children never tell anyone that they have been
abused. They dont feel its safe to talk about it, says Kumar Jagirdar of the nongovernmental organisation CRISP-India (Child Rights Initiative for Shared Parenting).

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Today, India has a law to deal with child abuse and child rape: the POCSO Act, 2012 reads
well on paper, but it is a law aimed at mollifying the growing number of concerned citizens
rather than actually making it illegal de iure et in praxim. What is the rationale behind the
lawmakers making the law inapplicable in Jammu & Kashmir? As a cursory reading makes it
clear, the driving reason is that the law brings into its jurisdiction police officers armed
forces or security forces and the Centre has for years been determined to keep them from
being nailed for a smorgasbord of excesses in J&K.
What India still does not have is a specific, well-defined law to deal with the likes of
Mustafa: paedophiles. Mustafa has what is called a past. He had photographs of other
children. Since paedophiles tend to hunt out other paedophiles the shared-interests
syndrome it is likely that he is part of, or has knowledge of, a paedophile ring. In the
current furious condemnation of sexual deviants, the charge is being led by the most vocal
womens activists, whose agenda valid on its own terms is to expand womens issues
to include matters dealing with violations of minors.
As for the POCSO Act, it is a work of enduring vagueness. While it mandates that whoever
commits sexual assault shall be punished with imprisonment for a term which shall not be
less than three years but which may extend to five years, and shall also be liable to fine, the
punishments, after all is said and done, range from simple to rigorous imprisonment, of
varying periods, and with fines all of it so open-ended that the courts will have the run of
deciding which paedophile gets put away for how long, if at all. Meanwhile, the law dealing
with the violations of adult women, the Criminal Law (Amendment) Act, 2013, mandates that
virtually every sexual assault be dealt with as rape, to the maximum reach of the law. Sexual
assault on children is a matter of graded severity; sexual assault on adult women is a matter
of near-homogeneous maximum punition.
Meanwhile, National Crime Records Bureau data show that child rape has increased by 336
percent in the past 10 years, while Karnataka State Crime Records Bureau data also show a
rise in child rape of 46.39 percent from 2008 to 2012.
The situation is extremely bad, says Shaibya Saldanha, co-founder of the Enfold Trust.
Most perpetrators are (seemingly) normal people, leading (seemingly) normal family
lives Not too long ago, she says, child sexual abuse was thought of as a mental problem
and the perpetrators were marked as, literally, paedophiles, a word that was first mentioned
Page | 23

in a Krafft-Ebing report of 1900 and meant child lover. Today, the original meaning seems
almost quaint, even benign. But, says Saldanha, there is no such thing. There are no family
stereotypes, and definitely no medication for paedophilia. The only defence against
paedophiles is, she says, creating awareness among parents and the public, and the
education of children.
There is no denying the value of awareness about adult predators and the ubiquity of
predation in the world at large. But, as in all developed societies that recognise
paedophilia as a crime deserving of its own set of laws, punishments and medical
interventions, every drive towards awareness will have to be strengthened by disincentives
to criminality.

A Child Law in Oblivion5

The Problem
With the repeated string of rape of children being reported across the nation and a public
outcry raging on the streets like molten lava flowing uncontrolled from a bursting volcano,
the victimised and abused child suffers in silence. Traumatised, dejected and horrified family
members of unfortunate victims find themselves helpless, confused and unable to cope up
with the heinous crime. Even though on 22nd May, 2012, the Parliament passed the
Protection of Children against Sexual Offences Act, 2012 (POCSO) and which came into
force on 14th November, 2012, this special law to protect children from offences of sexual
assault, sexual harassment and pornography, remains an unimplemented law, unknown to
most and beyond knowledge or information of those who need to apply it. Sadly, the result is
that POCSO, an Act, which is a necessity in India where 40 percent of the population is
below the age of 18 and where over 53 percent of children reportedly surveyed in 2007 stated
that they had experienced one or more forms of sexual abuse, is not complied with despite
being on the statute book. Rhetoric demands stiff penalties, expeditious new laws and fast
track courts little realising that POCSO, as a wholesome law already says it all.
POCSO and its Content

http://lawyersupdate.co.in/LU/1/1279.asp

Page | 24

Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with
sexual offences against children as the law did not make a distinction between an adult and a
child. POCSO deals with sexual offences against persons below age of 18 years. The POCSO
defines Penetrative sexual assault, sexual assault and sexual harassment making the
offence aggravated if it is committed by a police officer, public servant, staff member of jail,
remand, protection or observation home, staff of a hospital or an educational institution or by
a member of the armed or security forces. POCSO provides for relief and rehabilitation as
soon as the complaint is made to the Special Juvenile Police Unit or the local police who are
required to make immediate arrangements for care and protection. The intent to commit an
offence defined under POCSO is also punishable besides abetment or aiding the sexual abuse
of a child. Special emphasis has been provided for trial in special children's courts with
speedy disposal and special procedures to avoid child not seeing accused at the time of
testifying.
Awareness of POCSO
Despite POCSO laying down that the Central and State Governments shall take measures to
give wide publicity through media including television, radio and print media and imparting
periodic training to all stake holders on the matters relating to implementation of provisions
of POCSO, the Act is relatively unknown. Shockingly, in the most recent unfortunate rape
case, the Delhi Police included the provisions of POCSO to the FIR reportedly after two days
of the filing of the FIR on 15th April, 2013. In the infamous APNA GHAR Rohtak shelter
home case of May 2012, despite rampant allegations of child sexual abuse of over 100
inmates, reportedly, the provisions of POCSO are still not stated to have been invoked against
the accused. Most child sex abuse cases are not booked under POCSO. Child sex offenders
get away despite a stringent law. The Act is unknown. Indoctrination, training, familiarisation
and actual application by police officers and other stake holders still remains a far cry.
POCSO remains an Act of law in oblivion.
A Landmark Judgment
Upon the National Commission for Protection of Child Rights (NCPCR) petitioning the High
Court, in a path breaking judgment rendered on 9th April, 2013, it has been directed that the
states of Punjab and Haryana as well as Union Territory of Chandigarh shall ensure that,
State Commissions for Protection of Child Rights headed by a Chairperson who should be a
Page | 25

person who has been a Judge of the High Court, shall become fully functional by appointing
Chairpersons and six members appointed through a transparent selection process. The High
Court has further directed mandatory registration of all children homes, constitution and
notification of children's courts and appointment of special public prosecutors besides
constituting a proper selection committee to make further selections of various committees to
be set up for child welfare. Hence, the entire machinery of monitoring child rights has been
galvanised. A further direction has been issued that the National Commissions and State
Commissions shall start discharging their functions under POCSO for implementing its
provisions and modules/ training programmes for sensitizing all stake holders on child rights
and for dealing with cases in children's court be also initiated in the Chandigarh Judicial
Academy. It is now for the State Governments to implement this beneficial mandate and
create an effective machinery to check heinous crimes of gross sexual abuse against children
by enlightening all concerned about it.
The Net Effect
The Justice Verma Committee Report in one of its conclusion on child sexual abuse holds
there is an urgent need to audit the performance of all institutions of governance and law and
order. It is indeed necessary that we must now have external social audit for the sake of
transparency. We also wish to make it clear that every case of a missing child must be
registered as FIR. The Committee further make suggestions of constituting an oversight
mechanism through the High Court, special training needs programmes, sensitizing officials
on sexual abuse of children and strict implementation of provisions of various enactments of
child laws. Summing up, we need to consolidate our efforts and focus our energies on
existing laws and not look to amending more laws and making still further newer laws, alien
to our culture, society, habits, life styles and harsh realities of the common man. In so far
child sex abuse is concerned, POCSO is a wholesome law. The Government must create the
machinery to implement it and educate its officers besides all stake holders on what it
contains. The remedy to handle the public outcry is by implementing POCSO. All child
offenders must be charged, tried and punished in accordance with POCSO expeditiously.
Speedy, stringent and relentless pursuit of POCSO is the remedy and a possible cure. The
State must not waste its time in exploring alternatives when the answers exists in a law made
by Parliament for these special offences against children, the most vulnerable section of

Page | 26

society. Today's children are tomorrow's future. Let us protect them. The laudable endeavours
of Late Justice Verma must find implementation.

Page | 27

POCSO Act in News

Experts caution new law against child abuse often misused in affairs gone
wrong
Narayan Namboodiri, TNN | Sep 22, 2014, 11.22 PM IST
MUMBAI: The stringent Prevention of Children from Sexual Offences (POCSO) Act is open
to misuse, caution experts, adding it could be why many cases result in acquittal.
"Many cases are registered after an affair gone wrong. The parties reach a settlement and the
victim turns hostile mid-way during trial, or the court concludes that there was consent in the
sexual relationship," an expert said. Investigators said parents are often found to be guilty of
misusing the stringent law. A National Commission for Women (NCW) member said parents
of eloping couples "stand next to spurned lovers when it comes to lodging false complaints".
Mumbai police spokesperson and DCP (crime) Dhananjay Kulkarni agreed many cases under
the POCSO Act are registered by parents whose daughters have eloped. Y P Singh, a former
IPS officer-turned-lawyer, added that any stringent law has the potential for misuse.
Earlier this year, a special POCSO court acquitted four men accused in the alleged gang-rape
of a 13-year-old girl in Vakola. Special judge S D Tulankar acquitted Melwyn D'Souza,
Bipin Singh, Sachin Yadav and Venkatesh Naidu due to lack of evidence. Defence lawyer
Vinod Kashid said medical evidence in the case did not corroborate the victim's version. A
16-year-old girl, who was accused of aiding and abetting the gangrape, was also acquitted by
the Juvenile Justice Board in October last year.
Former Thane commissioner of police, S P S Yadav, said police officers require special
training to handle cases under the Act. Every stringent law always has scope for misuse, but
section 22 of the Act stipulates punishment for registering false complaint/information. But
the Act is silent on who would be entitled to file a complaint under this section. The Act
should spell out procedures for registering such complaints, experts said.
RTI activist Chetan Kothari said data showed the majority of the victims were in the age
group of 14-18 years. "The consensual age for sex has also led to criminalization of
consensual sex. When the law was being amended, women's right groups had asked to lower
Page | 28

the age to 16, which was not done. So, young people are left vulnerable to prosecution," he
said. He said men were particularly vulnerable and can be tried for sexual assault under the

Page | 29

stringent provisions of the POCSO Act, besides additional charges of kidnapping and
wrongful confinement if he elopes with a girl below 18 years of
age.

Page | 30

Conclusion

Twenty-four months after the Protection of Children from

Sexual Offences (POCSO) Act, 2012, came into effect, the

There can be no keener

revelation of a societys soul
than the way in which it treats
its children.
-Nelson Mandela

noble intentions and the beneficial provisions of the Act

are yet to touch the lives of many affected children. Every
few years a piece of progressive legislation takes shape,
only to be let down by those in charge of implementation.
POCSO is not just another law defining offences and
prescribing punishments like the IPC. It is an enabling
legislation that mandates child-friendly procedures in
reporting offences, recording victims statements, trial
proceedings

in

special

courts,

and

counselling.

Unfortunately, the trauma of children seem not to move

our lethargic state governments, who often require a hard
dose of public protests and negative press to do the right
thing. It appears that our State has lost its capacity to feel;
in the daily grind of transacting government business the
goal of making the world a better place to live in has been
forgotten; nothing else can describe the POCSO failure.
In December, the Supreme Court took exception to the
failure of many state governments to implement POCSO
provisions like setting up special courts in all districts,
staffing state child rights commissions to effectively
monitor POCSO implementation, and framing rules to be
followed by police and other stakeholders in child abuse
cases. In September, the women and child development
(WCD) ministry had framed model guidelines to help
states implement POCSO better. An exhaustive and
forward-looking document, the model guidelines will help
stakeholders like police personnel, medical professionals,
psychologists, counsellors, social workers, lawyers and
judges in interviewing child victims. According to the
WCD

ministry,

Maharashtra,

Uttar

only

Tamil

Pradesh

and

Nadu,

Meghalaya,

Chandigarh

have

Page | 31

confirmed formulation of guidelines. Till date, only 18 states have set up special childrens
courts.
The need for POCSO was felt after surveys showed a high number, 40 to 50 per cent of
respondents, complaining of sexual abuse as children. Crimes against children rose from
26,694 in 2010 to 38,172 in 2012. Even before the Verma committee, constituted after the
December 16 gang-rape, suggested changes in the definition of rape, POCSO had taken the
lead. Besides being gender-neutral, the Act classified offences into penetrative sexual assault
(seven years to life imprisonment), aggravated penetrative sexual assault (ten years to life),
sexual assault (three to five years), aggravated sexual assault (five to seven years), and sexual
harassment (three years and fine).
In the first months of POSCO, policemen, blissfully unaware of the law, continued to register
offences under the IPC. While that situation has somewhat changed, confusion still persists
about charging offenders under the correct sexual assault category. Today, most functionaries
assume their responsibility is complete by charging the accused under POCSO. The
deterrence value of POCSO does not emanate from the harshness of its punishments. The
favourable environment created for children and families to report crimes and cope with the
vagaries of the trial stage is the heart, soul, and muscle of the POCSO Act.6
Future amendments of the law should address these key issues.
However, the above concerns notwithstanding, there is hope that if the new law results in
more prosecutions, then more victims will be encouraged to report their abuse, and potential
attackers will be deterred from abusing children. It is essential that the law is understood and
respected by police officers, government officials, and courts across the country. It will be the
job of the national and state commissions for the protection of child rights to oversee this, and
so it is essential that they be given sufficient resources and manpower. The government also
needs to draw up appropriate training programs.7

6
7

http://www.dnaindia.com/analysis/editorial-dna-edit-the-c-in-pocso-1949876
http://www.hrw.org/ja/node/113337/section/9

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Bibliography
Articles Referred:
Child Welfare: A critical analysis of some of the socio-legal legislations in India,
Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume
19, Issue 8, Ver. II (Aug. 2014), pp 54-60.
The Protection of Children from Sexual Offences (POCSO), Neha Gupta, N.K.
Aggarwal & M.S. Bhatia, Delhi Psychiatry Journal, Vol. 16 No. 2 (October 2013).
Model Guidelines under Section 39 of The Protection of Children from Sexual
Offences Act, 2012, Ministry of Women and Child Development, September 2013
<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf >
Crimes of Passion, The Asian Age, March 8, 2013
<http://archive.asianage.com/columnists/crimes-passion-521>
FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights
<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+La
test.pdf?MOD=AJPERES&lmod=580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055>
POCSO: A Child Law in Oblivion, Lawyers Update, June 2013
< http://lawyersupdate.co.in/LU/1/1279.asp >
Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013
<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act2012/articleshow/19718160.cms>
Websites Referred:
http://zeenews.india.com/tags/pocso-act.html
http://kushmanda.com/the-protection-of-children-from-sexual-offences-pocso-act2012/
http://www.hrw.org/ja/node/113337/section/9
http://www.telegraphindia.com/1140122/jsp/opinion/story_17850822.jsp
http://www.npscindia.com/downloads/1406783345.pdf
http://pib.nic.in/newsite/erelease.aspx?relid=84409

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