Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

International Family Law

The leading authority on international family law

16 MAY 2013

India - Child protection law awaits invoking

Anil Malhotra

Before amending existing laws or introducing new ones, all states must ensure the proper implementation of the wholesome Protection of Children Against Sexual Offences Act introduced last year to shield them from violence.

‘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

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 with the heinous crime.

Even though on 22 May 2012, Parliament passed the Protection of Children Against Sexual Offences Act 2012 (POCSO), which came into force on 14 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% of the population is below the age of 18 and where over 53% 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.

Child specific

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 the age of 18 years. A child has been defined as a person below the age of 18 years. 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 which is 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 the child not seeing accused while testifying.

No awareness

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 stakeholders on the matters relating to the implementation of the provisions of POCSO, the Act is relatively unknown. Shockingly, in the present most recent unfortunate rape case, the Delhi Police included the provisions of POCSO to the FIR reportedly after 2 days of the filing of the FIR on 15 April 2013. In the infamous Apna Ghar Rohtak case, 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 stakeholders still remains a far cry.

The passing of the salutary law is more than significant for a variety of reasons. It defines exclusively the crime of sexual offences against children and fulfils the mandatory obligations of India as a signatory to the United Nation Convention on the Rights of the Child, accessed to on 11 December 1992. For monitoring and implementation of the provisions of POCSO, the Act enjoins that the National Commission and State Commissions for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act 2005, shall ensure the effective carrying out of the provisions of POCSO. In a hard-hitting direction on 7 February 2013, the Supreme Court ordered all states to ensure that the regulatory and monitoring bodies are constituted and made functional. However, to date, the fully functional commissions are non-existent or non-functional.

Watching over

A child's rights

  • Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of Sub-Inspector. Evidence has to be recorded within 30 days.
  • No child to be detained in the police station at night for any reason.
  • Police officer should not be in uniform while recording the statement of the child.
  • The statement of the child to be recorded as spoken by the child.
  • Assistance of an interpreter or translator or an expert as per the need of the child.
  • Child not to see the accused at the time of testifying. The evidence of the child shall be recorded within a period of 30 days of the cognizance of the offence.
  • Assistance of special educator or any person familiar with the manner of communication of the child in case the child is disabled.
  • Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  • In case the victim is a girl child, medical examination shall be conducted by a female doctor.
  • Child not to be called repeatedly to testify and frequent breaks must be given to the child during the trial.
  • No aggressive questioning or character assassination of the child.
  • Trial to be in the special court in camera.

Landmark judgment

Upon the National Commission for Protection of Child Rights (NCPCR) petitioning the High Court, in a path-breaking judgment rendered on 9 April 2013, it has been directed that the states of Punjab and Haryana as well as the Union Territory of Chandigarh shall ensure that State Commissions for Protection of Child Rights headed by a chairperson, who should be a 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.

Children's homes

The High Court further directed mandatory registration of all children's 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 and training programmes for sensitising all stakeholders on child rights and for dealing with cases in children's court should 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. It is the duty of the state to now perform its obligations for the welfare of society.

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 makes suggestions of constituting ‘an oversight mechanism' through the High Court, special training needs programmes, sensitising officials on sexual abuse of children and strict implementation of provisions of various enactments of child laws.

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. Insofar as 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 stakeholders, 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 cure. The state must not waste its time in exploring alternatives when the answers exist in a law made by Parliament for these special offences against children, the most vulnerable section of society. Today's children are tomorrow's future. Let us protect them.

The writer is a Chandigarh-based lawyer. He can be reached at anilmalhotra1960@gmail.com.

International Family Law Practice, The

International Family Law Practice, The

2016-2017

Provides comprehensive coverage of the international elements of English family law

Available in Family Law Online
International Family Law

International Family Law

The practice title for family lawyers engaged in/dealing with issues European and worldwide

Available in Family Law Online
Subscribe to our newsletters