MADRAS HIGH COURT RECOMMENDATIONS ON POCSO ACT
Child abuse is any form of persecution whether it’s physical, mental, verbal, medical or sexual, which is violent or belligerent for the child. The Federal Child Abuse Prevention and Treatment Act (CAPTA) , as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as,
“Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
“An act or failure to act which presents an imminent risk of serious harm.”In the above mentioned definition of child abuse by CAPTA, a child basically means a person who is below the age of 18.
POCSO or The Protection of Children from Sexual Offenses Act (POCSO Act) 2012 was built up to protect the children against offenses like sexual maltreatment, physical as well as mental torture and erotic entertainment. It was formed to provide a child friendly system for preliminary underneath which the culprits could be punished. The Act characterizes a child as any individual beneath eighteen years old. In addition, it has also made several provisions so as to avoid the re exploitation of the child because of the legal framework. Protection of Children from Sexual Offenses Act, 2012 got the President’s consent on June 19, 2012. It was informed in the Gazette of India on June 20, in the same year.
The Act characterizes various types of sexual abuse which includes penetrative and non-penetrative abuse. Under certain specific conditions POCSO states a sexual assault is to be considered “disturbed if the victim is mentally sick or when the maltreatment is committed by an individual from the military or security forces or a public servant or an individual in a place of trust or authority of the child like any relative, police officer, teacher or doctor or an individual administration or staff of a clinic — regardless of whether Government or private.”
The Act likewise makes it necessary to report such cases. It makes it the legitimate obligation of an individual aware of the offense to report the sexual maltreatment. In case if he neglects to do as such, the individual can be punished with a half year’s detainment or fine. The Act further stated that the proof of the victim or child ought to be recorded within the time of thirty days. The Special Court taking discernment of the issue ought to have the option to complete the trial inside the time of one year from the date of taking comprehension of the maltreatment. It gives that the Special Court procedures should be recorded in camera and the trial should take place within the sight of parents or any other individual in whom the child has trust or confidence.
The Act accommodates punishment against false complaints or invalid information . It describes severe action against the guilty party as indicated by the gravity of the offense. It endorses rigorous imprisonment for a term which will not be under ten years but rather which may extend out to detainment forever and also fine as punishment for penetrative sexual assault .The POSCO Act also provides for the establishment of special courts for trial of child sexual abuse matters. However, the Act’s implementation has been buried in malpractices and outdated legitimate procedures. It is therefore crucial to conduct a critical empirical evaluation of its implementation process. An instance of the implementation gap is the fact that there are a total of 200-600 cases of sexual offences pending in each of the designated courts in Delhi and only two of the District Court complexes have a vulnerable witness room, for child witnesses giving evidence.
PUNISHMENTS UNDER POCSO ACT
§ Penetrative Sexual Assault (Section 3) – Not under seven years which may extend to detainment for life and fine (Section 4)
§ Exasperated Penetrative Sexual Assault (Section 5) – Not under ten years which may extend to detainment forever, and fine (Section 6)
§ Sexual assault (Section 7)– Not under three years which may extend to five years, and fine (Section 8)
§ Exasperated Sexual Assault (Section 9) – Not under five years which may reach out to seven years, and fine (Section 10)
§ Sexual maltreatment of the Child (Section 11) – Three years detainment and fine (Section 12)
§ Use of Child for Pornographic Purposes (Section 13) – Five years imprisonment and fine and in case of subsequent conviction imprisonment of seven years along with particular amount of fine (Section 14 (1))
MADRAS HIGH COURT RECOMMENDATIONS ON POCSO ACT
The Madras High Court in an ongoing judgment has noticed the expanding number of youngsters and young adults accidentally going under the radar of child sexual maltreatment laws for taking part in consensual sexual acts.
The Madras High Court suggested that the Protection of Children from Sexual Offences Act be amended to exclude consensual sex after 16 years of age from the range of the Act. Justice V Parthiban said that the definition of “child” under the Act should be reduced from 18 years to 16 years.
The judge made certain observations while hearing an ongoing case filed by a man claiming that a 18 years old accused had kidnapped his 17 years old granddaughter, and committed penetrative sexual assault on her. However, the court set aside the charges based on lack of evidence. The victim said that she had consented to elope with the accused.
“When the girl below 18 years is involved in a relationship with the teenage boy or little over the teenage, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction,” the court said in its ruling. Such relationship can’t be interpreted as an unnatural one or outsider to between relationship of inverse genders.” Unfortunately, it included, such a relationship attracts the provisions of the POCSO Act and can prompt the guilty party being detained for 7-10 years.
The judge noticed that a dominant part of instances of rape on minor girls are because of relationship between teenage boys and girls. The court said that a provision can be presented in the Act that the man must not be over five years more older than the girl.
The court said that objectification of women in movies and erotic entertainment which are available online can be some of the reasons behind the increasing incidences of sexual assaults on women and children. “The society must collectively introspect what is it that drives some men to unleash their libidinous rage on hapless children and women of all ages,” the judge said
Case :- Alakh Alok Srivastava vs Union of India
A three-judge seat headed by Chief Justice of India Deepak Mishra, Justice D. Y. Chandrachud and Justice A.M. Khanwilkar issued bearings for the rapid transfer of cases under POCSO Act. The Public Interest Litigation filed by advocate Alakh Alok Srivastava drew the consideration of the Supreme Court towards resistance by the States with commands of the POCSO Act.
Supreme Court issued several guidelines to the State
§ The High Courts shall ensure that cases registered under the POCSO Act are tried and disposed of by the Special Courts.
§ No unnecessary adjournments should be allowed and the trial must be completed in a time-bound manner or within a specific time frame provided under the Act.
§ To be established Special Courts, if the same has not been done already.
§ The Chief Justices of the High Courts were ordered constitute a Committee of three Judges to regulate and monitor the progress of the trials under the POCSO Act. If three Judges are not available, the Chief Justices of the respective High Courts shall constitute a one Judge Committee.
§ The Director General of Police or the officer of equivalent rank shall constitute a Special Task Force which shall ensure that the investigation is done properly and witnesses are produced on the dates fixed before the trial courts.
§ Adequate steps to be taken to ensure the child-friendly atmosphere in the Special Courts.
After observing the increasing rate of Child Abusing And Sexual Offences the Parliament of India passed the POCSO Act in year 2012 so as to decline it’s graph and it has been proved to more effective in these few years. The Act has prompted expanded number of cases filed, and furthermore meant an expansion in the higher rate of conviction. Cases enlisted for sexual maltreatment have ascended from 8,904 of every 2014 to 14,913 in the year 2015, under the POCSO Act. Further, it has made it obligatory for any individual who observes suspected kid maltreatment to report any such occurrences.
The POCSO (Protection of Children from Sexual Offenses) Act makes it illicit to observe suspected child abuse and not report it. Grievances can be held up face to face and on the phone.
Further, the speed at which cases are settled guarantees the liable does not escape. Cases must be explored in 3 months after an extraordinary court should quickly articulate a choice in 1-3 months. All types of sexual maltreatment are recognized, including penetrative and non-penetrative strike, and sexual harassment and erotic entertainment. Rape can be qualified as ‘aggravated ‘ in specific situations.