Protection of the Child under the Sexual Offences Act – The Law and the Reality

By Arindam Bharadwaj

Published on July 16, 2018

Alice Miller, a Swiss Psychologist speaking about child abuse has said: “Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse”.

In most cases involving child victims, the perpetrators were family members, household staff, school teachers, and other persons known to the child.

It was after a study published by the Ministry of Women and Child Development in 2007, where about 53% of the children interviewed reported some form of sexual abuse ranging from rape to relatively milder forms of offences, that the legislature, with powers conferred under clause (3) of Article 15 of the Constitution of India to make special provisions for children, enacted the Protection of Child from Sexual Offences Act in 2012.

The Act is aimed at empowering the child and strengthening the legal provisions for their protection from sexual abuse and exploitation. The Act is India’s first legislation which deals exclusively with the issue of child sex abuse and is gender neutral. The Act provides for protection of children below the age of 18 years from sexual assault, penetrative sexual assault, and sexual harassment. In addition, the Act also requires for the designation for a “Special Court” in each district to try offences under the Act to ensure a speedy trial which is one of the fundamental objectives of the legislature.

The Act also provides procedures for the recording of evidence given by the child and disposal of the case within a period of one year from the date of taking cognizance of the offence.

Section 36 of the Act casts a duty on the “Special Court” to ensure that the child is not exposed in any way to the accused at the time of the recording of the evidence while at the same time ensuring that the accused is in a position to hear the statement of the child, and to communicate with his or her advocate. The aforesaid provisions make it clear that the aim of the legislation is to take various steps at various levels so that the child is protected from discomfort. The aim is to create a child-friendly environment to ensure that the trial is properly conducted.

To start with, the time period allotted by the legislature to dispose of cases falling under the Act as per Section 35 of the Act is 12 months from taking cognizance of the offence, but this does not seem to be the case even after four years from the day the Act was enacted.

Data collected by the National Crime Record Bureau reveals that the total number of cases sent for investigation in 2016 was 48,060 which include 12,038 cases pending investigation from the previous year and out of the total cases, 32,777 cases were disposed of by the police while 15,283 cases were still pending at the end of the year. The total number of cases for the various offences under the Protection of the Child from Sexual Offences Act that were sent for trial in 2016 was 1,01,326 out of which only 11,121 were disposed of by the trial court and 90,205 cases were still pending at the end of 2016 which means that 89% of the total cases sent to trial in 2016 were still pending at the end of the year.

Further, the legislature through the Act has directed the States to establish separate POCSO (Protection of Child from Sexual Offences) courts in every city to try offences under the Act, however only one dedicated POCSO court is functioning at Jaipur having Jurisdiction over the Jaipur Metropolitan and the Jaipur District Judgeship.

Delhi also designated a few courts to deal exclusively with cases relating to the trial of offences against the child, violation of child rights, and cases under the POCSO Act.

Barring the exceptions mentioned above, a few States and the high courts of these respective States have vested with the existing Courts of Additional Sessions Judges, the power to simultaneously try cases under the POCSO Act as “Special Courts”.

But the vesting of power of a “Special Court” under Section 28 of the Protection of Children from the Sexual Offences Act 2012 and under Section 25 of the Commissions for Protection of Child Rights Act 2005 to the already overburdened courts of Additional Sessions Judges, has proved to be counter-productive and in fact, has not been able to accomplish the purpose of the POCSO Act regarding speedier trial of offences against children since the Court of Additional Sessions Judges is also a designated special court for trying offences under s 153 of the Electricity Act 2003 and under s 14 of the ST/SC (Prevention of Atrocities) Act 1989 (Old Act) [and under s 14 of the SC & ST (Prevention of Atrocities) Amendment Act 2015 (No. 1 of 2016)].

One of the main purposes of the legislation in directing States to establish special courts is to ensure that the child victim is in no way exposed to the offender while giving evidence in court as seeing the accused in the courtroom while giving testimony can be detrimental to the case. But even this provision, which in my view is the most important provision, seems to be ignored and grossly violated while trying cases under the POCSO Act.

For evidence, the HAQ, the Centre for Child Rights, and the Counsel to Secure Justice (CSJ), conducted a survey where they analysed 72 child sexual abuse cases in 2015. They reported the case of a young girl who was raped by a watchman of her neighbourhood. He threatened to kill her parents if she talked about the crime. After she got pregnant and had a difficult childbirth, she received counselling and her case was tried in a normal court designated to try offences under the Act but not by a Special Court as mentioned under the POCSO Act. On the date of her testimony, while she was sitting in the courtroom waiting to testify with her lawyer, she turned back and made eye contact with the accused who was just sitting behind her. On intervention by members of HAQ and CSJ, the accused was taken behind the screen, but it was too late as she was re-traumatised. She kept turning back to check whether he was still there and looked disturbed throughout the session. She somehow completed her testimony but the trial is still underway.

In another case, a young girl was sexually abused by her brother for six months. In her case, several POCSO provisions were well administered and the accused was made to stand behind the curtains placed at the back of the court. As a result, the complainant was able to testify effectively without any hesitation and the case was disposed of within a reasonable time.

The Sexual Offences Act 2012 was enacted to protect children from sexual exploitation and to secure the best interests of the child. The fundamental objective of the Act was to provide a speedier trial process and establish a special court to try offences under the Act by providing a child-friendly procedure and environment. But the same has not been achieved till date as only a fraction of cases were disposed of within time and the majority of them are still pending according to the National Crime Record Bureau. Only Jaipur has a dedicated POCSO court and Delhi has a few designated courts to try out offences under the Act. In other States, the already overburdened courts have been vested with the power to try offences under the Act which turns out to be counter-productive.

Section 36 of the Act which provides for keeping the victim and the offender separate in the courtroom should be complied with in all circumstances as non-compliance can vitiate the trial. Additionally, Section 36 needs to be revisited as it is unclear whether its protection applies only at the time when the giving of evidence is being recorded or at all times when in court. Ideally, it should apply at all times when in court as there is a high risk of the child victim being re-traumatised when exposed to the accused.

The Author

Arindam Bharadwaj is a 3rd-year law student pursuing an LL.B (Hons) degree at Jindal Global Law School, O.P. Jindal University, Sonepat, Haryana, India.

Article picture: Pixabay