Prelims cum Mains Social Issues

Section 29 of POCSO

In the News

The Delhi High Court has ruled that the presumption of guilt engrafted in Section 29 of the Protection of Children from Sexual Offences (POCSO) Act gets triggered and applies only once trial begins, that is after charges are framed against the accused.

About: POCSO 2012

  • The POCSO Act, 2012 was enacted to Protect the Children from Offences of Sexual Assault, Sexual harassment and pornography with due regard for safeguarding the interests and well-being of children.
  • The Act defines a child as any person below 18 years of age, and regards the best interests and welfare of the child as matter of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
  • The act is gender neutral.
  • Definition of sexual abuse – penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor.
  • It has raised the age of consensual sex from 16 years as per Indian Penal Code, 1860 to 18 years. This means that –
    • Any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented.
    • A husband or wife can be prosecuted for engaging in a sexual act with his or her spouse under the age of eighteen years.
  • The burden of proof lies on the accused – punishment has been provided for false complaints or false information with malicious intent.
  • People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
  • The act makes mandatory reporting of sexual offences against children.
  • The Act further makes provisions for avoiding the re-victimization of the child at the hands of the judicial system.
    • It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible.
  • The act also set cases disposal time period of 1 year from reporting.

Timeline

  • 1992- India ratified the UN Convention on the Rights of Child (CRC)

    • The State parties to the Convention were required to undertake all appropriate national, bilateral and multilateral measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials.
  • 2007 – Ministry of Women and Child Development in its survey found over 50% children faces some form of sexual abuse.

  • 2012 – POCSO enacted

  • 2019 – POCSO act amended to make it more stringent as follows-

    • Nov covers 21 kind of aggravated & penetrated sexual assualt
    • The definition of ‘sexual assault’ has now been expanded to include administration of hormones to children to make them appear more sexually mature for the sake of commercial sexual exploitation.
    • The amendment has also added an additional category of sexual assault of children who are victims of calamities or natural disasters which now is liable for maximum term of life sentence or death penalty.
    • Graded increase in punishment:
      • Increase in the minimum punishment from 7-10 years for ‘penetrative sexual assault’ of 16-17 year olds
      • Increase in the minimum punishment to 20 years for ‘penetrative sexual assault’ of child below the age of 16 years
      • The maximum term of life imprisonment in such cases has been retained.
    • The act also provides for death penalty for aggravated sexual assault. This includes
      • Cases of child rape by police, armed forces, relatives, public servants or management of remand/protection homes and healthcare personnel
      • Sexual assault using weapons
      • Rape of children with mental/physical disabilities
      • Children harmed in sexual organs, impregnated etc.

    Note- In July 2019, in response to a PIL regarding the alarming rise in the number of reported child rape incidents, the Supreme Court has directed the setting up of special courts in each district across the country that had over a 100 cases of child abuse and sexual assault pending trial under the POCSO Act.

    • There were 389 districts where the number of pending cases under Pocso Act exceeded 100
  • 2020 : POCSO Rules notified by Govt.

    • Zero-tolerance to violence against children
    • Provision of interim compensation after FIR registration
    • Makes platform accountable on which child pornography materials are circulated.
    • Mandatory police verification of staff in schools and care homes

Section 29 of the POCSO Act:

  • It says that when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case “shall presume” the accused to be guilty.

Rulings:

  • It was clarified that if a bail plea is being considered before charges have been framed, Section 29 has no application.
    • ‘Trial’ commences when charges are framed against an accused and not before that.
    • Only at the stage when charges are framed does the court apply its judicial mind to whether there is enough evidence on record to frame a precise allegation, which the accused must answer.
  • The Court held that an accused cannot be asked to disprove their guilt even before the foundational allegations with supporting evidence that suggests guilt are placed by the prosecution before the court.
    • It is only once charges are framed that the accused know exactly what they are alleged to be guilty of; and therefore, what guilt they are required to rebut (deny).
    • It would be disgraceful to fundamental criminal jurisprudence to ask the accused to disclose their defence; or, worse still, to present evidence in their defence even before the prosecution has marshalled its evidence.
    • Earlier, the reverse burden on the accused to prove his innocence was incorporated in the POCSO Act keeping in view the low conviction rate of sexual offences against children.
      1. Reverse burden means that persons charged with an offence would have to rebut the presumption against them and the burden of proof would lie on them to show that they have not committed the act constituting an offence.
  • The Court also set out fresh norms while deciding a bail plea at the post-charge stage. It held that in addition to the nature and quality of the evidence before it, the court would also factor in certain real-life considerations.
    • These include whether the offence alleged involved threat, intimidation, violence or brutality. Also, the court, hearing the bail would consider whether the offence was repeated against the victim.

Criticism

  • The POCSO Act, 2012 does not recognize consensual sexual acts among children or between a child and an adult. And this is where the problem lies – especially in societies where legal literacy is poor.

Data Point –

  • As of June 2019, more than 96% of the 1,66,882 pending rape trials are ones registered under the Protection of Children Against Sexual Offences (POCSO) Act.
  • Crime in India Report 2019, released by NCRB –
    •  Crimes against children increased by 4.5 per cent in 2019 as compared to 2018.
    • 1.5 lakh crimes against children were reported in 2019 in the country.
      • Out of this, 31% cases of crimes against children were registered under the POCSO Act.
      • 47% were related to kidnapping and abduction.

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