The POCSO ACT: USE AND ABUSE OF LAW

The protection of children by the state is guaranteed to Indian citizens under Article 21 of the Indian Constitution. The State has enacted various acts for protection of children such as The Juvenile Justice Act 2000, The Prohibition of Child Marriage Act 2006, The Child Labour Act 1986. However, there were no specific laws addressing the issues of child sexual abuse in India.  Offences relating to sexual abuse of a child were covered under the general provisions of Indian Penal Code.

 

Child sexual abuse laws in India have been enacted as part of the child protection policies of India. The 'Protection of Children Against Sexual Offences Bill (POCSO), 2011' was passed on 22 May 2012 making it an Act.  

 

The POCSO Act, 2012 came into force with effect from November 14, 2012, along with the rules framed thereafter. The Act is a comprehensive law enacted with the objective of protecting children from a slew of sexual offences like sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by introducing a child-friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offences through special courts.

 

The Act defines a child as any person below the age of 18 years. It defines different forms of sexual offences including penetrative and non-penetrative assault, and even sexual harassment and pornography.

 

It prescribes stringent punishment as per the gravity of the offence. The Act is a gender-neutral law where not reporting abuse is an offence. There is no time limit for reporting abuse and the Act enumerates provisions for maintaining the confidentiality of the victim's identity.

 

After the enactment of the act there has been a rise in the reporting of cases. The Special Courts have been set up wherein the facilities of dealing with these cases and providing a child-friendly atmosphere where the child victim may depose without fear.

 

A current trend is seen wherein the law is being misused.

In several matrimonial cases the POCSO Act is being invoked along with Section 498A of IPC which pertains to harassment and cruelty of the wife. Since the police authorities and investigating agencies do not view a complaint under Section 498A as a serious crime, allegations under the POCSO Act are being alleged for ensuring arrest of the husband and to pre-empt him from applying for custody of the child. Even in matters where “Habeas Corpus” petition is filed for obtaining custody or visitation rights of children, false cases under POCSO Act is filed so that father is kept away from the child. Children are being used as a tool to even settle property related matters. This is a dangerous trend as once an FIR is filed under the POCSO Act with serious allegations, the arrest in imminent of the Accused and at the pre-trial stage it is not possible for the Judge to interview the victim to find out the truth or to enter into meticulous analysis of the matter and arrive at a conclusion of innocence or guilt.

 

The Accused can approach the Sessions court and seek Anticipatory bail(prior to arrest) or bail (if arrested).

False cases especially against a father by the daughter have far reaching consequences on the mind of the child however when the battle between the husband and wife is bitter the child is used as a weapon by the parties to achieve their goal.

The law makers and the judicial officers should note this dangerous trend and should take steps to curtail the detrimental practice of using an innocent child for making false allegations.

 

Section 22 of the POCSO Act provides for punishment where false complaints are filed or false information is given. A false complaint by any person, solely with the intention to humiliate, extort or threaten or defame, shall be punished with imprisonment up to six months or with fine or both. False information provided against a child or a false complaint, where such allegation is known to him to be false, thereby victimizing the child can face up to one-year imprisonment, fine, or both.

 

To ensure that the purpose of the Act is not lost out through the blatant misuse of the same, investigative and procedural safeguards have to be set up and measures have to be evolved for strict implementation to check the menace of false allegations and the consequences that flow from it. Misusing the act by making a child file false allegations may affect the child life long. The provisions for punishment for filing false cases have to be strengthened.

 

The court must deal with care and caution and keeping in mind the possibility of false implication especially when allegations are made by married couple against each other under POCSO Act. The investigating authority must give its genuine opinion when called upon by court. The Court must arrive at the truth so that an innocent person is not made to suffer on account of malicious and false allegation.

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