#ChildMolester | POCSO law and where it lacks, explained

Ten years after the enactment of The Protection of Children from Sexual Offences (POCSO) Act, which deals specifically with child sexual abuse, an analysis of POCSO cases across India has found gaps in its implementation – including increasing pendency of cases and a high rate of acquittals.

The analysis, titled ‘A Decade of POCSO’, was carried out by the Justice, Access and Lowering Delays in India (JALDI) Initiative at Vidhi Centre for Legal Policy, in collaboration with the Data Evidence for Justice Reform (DE JURE) program at the World Bank. It analysed a total of 230,730 cases from 486 districts spanning 28 states and Union Territories, from 2012 to February 2021. Case laws, policy interventions and case metadata was collected from the eCourts, the digital platform which gives information on pending cases, court orders, etc.

What is POCSO, and why was it enacted in 2012?

The Constitution of India has incorporated several provisions to protect the rights of children and India has also been a signatory to landmark international instruments, such as the Convention on the Rights of the Child, the Protocol to the Convention on the Rights of the Child on the Sale of Children, etc., However, India lacked any dedicated provision against child sexual abuse. Cases would be tried under different provisions of the Indian Penal Code, which was found to be ill-equipped.

In the 1990s, a child sexual abuse racket was busted in Goa, following which the state government enacted a law to promote child rights in 2003. Also, the Special Expert Committee under Justice VR Krishna Iyer presented a draft code for child rights in India – the Children’s Code Bill, 2000.

These two initiatives established the basis for dedicated legislation against child sexual abuse. In 2005, the Department of Women and Child Development prepared a draft bill to address different offences targeted against children.

The Study of Child Abuse, a 2007 report published by the Ministry of Women and Child Development covering 13 states with a sample size of 12,447 children, 2,324 young adults and 2,449 stakeholders, looked at different forms of child abuse and found that 50.76% of children surveyed reported having faced one or more form of sexual abuse. Contrary to the general perception then, the overall percentage of boys reporting experiencing sexual abuse was much higher than that of girls.

In September 2010, the Ministry of Women and Child Development prepared a draft Protection of Children from Sexual Offences Bill, 2010 which after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012.

What are the key findings on crimes against children?

The analysis has found that 43.44% of trials under POCSO end in acquittals while only 14.03% end in convictions. For every one conviction in a POCSO case, there are three acquittals.

Acquittals are significantly higher than convictions for all the states studied. For instance, in Andhra Pradesh, acquittals are seven times more than convictions; and in West Bengal, acquittals are five times more than convictions. In Kerala, the gap between acquittal and conviction is not very high with acquittals constituting 20.5% of the total disposals and convictions constituting 16.49%.

Out of 138 judgements looked at in detail by the study, only in 6% of the cases were the accused people strangers to the victim. While in 44% of the cases, the relationship between the victim and accused had not been identified, 22.9% accused were known to the victims, 3.7% were family members and 18% of cases had a prior romantic relationship.

As per data published by the National Crime Record Bureau in 2021, in 96% of the cases filed under the POCSO Act, 2012, the accused was a person known to the child victim – in 48.66% of cases, the accused is either a friend or a romantic partner of the victim.

In these 138 cases, the study has found that 5.47% of victims were under 10 years of age, 17.8% between 10-15 years and 28% between 15-18 years. The age of the victim in 48% of cases was not identified.

While the age of the accused was not identified in 63.6% of cases, in the rest around 11.6% of accused were between 19-25 years of age and 10.9% were between 25-35 years; 6.1% of accused were between 35-45 years and 6.8% were more than 45 years old.

Offences of penetrative sexual assault (31.18%) and aggravated penetrative sexual assault (25.59%), which prescribe the most stringent punishments under the POCSO Act, together comprise over half of all POCSO cases.

What is the quality of justice under POCSO?

The study has found on average, it takes 509.78 days for a POCSO case to be disposed of – whereas it has been stipulated under the Act that such cases need to be disposed of within a year.

Though the pendency of POCSO cases was increasing gradually over the years, there was a sharp increase in the number of pending cases between 2019 and 2020, which could be attributed to the COVID-19 pandemic. The report has observed that one of the primary reasons for this is the slow pace of investigation by the police and the delay in depositing samples with the Forensic Science Laboratories.

A total of 22.76% of cases were disposed of by virtue of transfers from one court to another, and “one-fifth of the cases in this dataset ended in transfers’’, said the study. Since POCSO cases are supposed to be tried by the Special Court, the transfers indicate “either administrative mismanagement or wrongful appreciation of facts by the police”.

While the percentage of transfers out of total disposals was only around 8% in 2013, it rose to a little over 19% in 2019 and a startling 42% in 2020. The report has found this trend “concerning’’ for the time wasted as cases are transferred from one court to another.

How do different Indian states fare?

Delhi has the highest number of POCSO trials in the country with 13.54 cases per 100,000 population in 2018 – which does not necessarily mean the number of incidents of sexual offences is higher, but that there is increasing awareness and reporting of cases.

But Delhi also had the highest average case length in the country in 2020, at 1,284.33 days.

Chandigarh and West Bengal are the only states where the average time taken for convictions is within one year. States like Chhattisgarh, Haryana, Kerala, Sikkim, Chandigarh and the NCT of Delhi seem to have a much higher reporting of POCSO cases.

The five districts with the highest number of POCSO trials (pending and disposed) are: Namchi (Sikkim), New Delhi, Central Delhi, Medak (Telangana) and West Garo Hills (Meghalaya).

Uttar Pradesh has the highest pendency with more than three-fourths (77.77%) of the total POCSO cases filed between November 2012 and February 2021 pending. On the other hand, at 80.2%, Tamil Nadu has the highest disposal percentage.

Five districts with the highest pendency percentages include Lucknow (Uttar Pradesh), Hardoi (Uttar Pradesh), Budaun (Uttar Pradesh), Allahabad (Uttar Pradesh) and Howrah (West Bengal).

What are the gaps in implementation?

According to the study, “support persons” are not being appointed in most POCSO cases. The Supreme Court had also noted that in 96% of cases, a support person was not provided to the victim.

A support person may be a person or organisation working in the field of child rights or child protection, an official of a children’s home or a shelter home having custody of the child, or a person employed by the District Child Protection Unit (DCPU), who hand holds the victim through the entire legal process.

The analysis further notes POCSO courts have not been designated in all districts. As of 2022, 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme. There is a lack of Special Public Prosecutors appointed specifically to handle POCSO cases, and even when they are appointed they are often employed for non-POCSO cases.

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