Child sexual abuse (CSA) is a pervasive issue that impacts millions of children worldwide, including in India. The Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012, provides a comprehensive legal framework to protect children against sexual offences, including sexual assault, harassment, and pornography. The act is gender-neutral and aims to ensure that children are protected at every stage of the judicial process through child-friendly mechanisms for reporting, investigating, and prosecuting offenders.

Despite its well-intentioned goals, the POCSO Act has faced criticism on multiple fronts, from its stringent provisions regarding the age of consent , the criminalisation of consensual sexual activity between minors to the introduction of the death penalty for certain crimes. These issues, along with challenges in the law's implementation, form the crux of the discussions surrounding the effectiveness of the POCSO Act in its mission to protect children. This article will delve into the Act's effectiveness, challenges, debates and areas that require reform.

Discussion of the legislation's potential effects

The POCSO Act has successfully created a legal framework that recognises sexual offences against children, providing a platform for survivors to report abuse. Since its enactment, it has contributed to greater awareness of improved reporting mechanisms.

However, while the number of cases reported has risen, the implementation of the Act has been uneven across states. For instance, states like Tamil Nadu boast high case disposal rates, while Uttar Pradesh struggles with over three-fourths of its cases pending. On the other hand, at 80.2%, Tamil Nadu has the highest disposal percentage (percentage of total filings since November, 2012 that were disposed as of February, 2021) of all the states and UTs studied. Moreover, on average, POCSO cases take over 509 days to be disposed of, far exceeding the one-year limit set by the law.

This delay in justice severely impacts the efficacy of the law in protecting vulnerable children. Though the number of pending POCSO cases was increasing gradually over the years, their proportion was on a decline till 2019. However, there was a sharp increase of 24,863 cases in the number of pending cases between 2019 and 2020 which could be attributed to the COVID-19 pandemic and its impact on the functioning of courts across the country.

For every one conviction in a POCSO case, there are three acquittals. Acquittals are significantly higher than convictions for all of 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. Kerala is the only state where the gap between acquittal and conviction is not very high with acquittals constituting 20.5% of the total disposals and convictions constituting 16.49%.

Debates Around The POCSO Legislation

Is The Age Bar Set High?
One of the most controversial aspects of the POCSO Act is its blanket treatment of all sexual activities involving individuals under 18 as criminal. While intended to protect minors, this provision has resulted in unintended consequences, especially in cases of consensual sexual activities between adolescents. In India, the legal age of consent was raised to 18, but there are debates about whether this age is too high. Internationally, there is no universal standard for the minimum age of consent, with countries like the U.S., Japan, and Russia setting it at 16 or lower. In India, the Justice Verma Committee and the Madras High Court have suggested lowering it to 16. The law's high age limit has led to criminalising consensual sexual activities between adolescents, particularly harming boys in romantic relationships.

For example, when teenagers engage in consensual sexual activity, they are still prosecuted under the POCSO Act, leading to situations where boys, in particular, face severe criminal penalties. This blanket criminalisation has led to cases where both parties, after consensual activity, are penalized, with the male counterpart often being charged with statutory rape. This aspect of the law has caused societal and legal debates about whether the age of consent should be lowered to 16, a move supported by some judicial rulings, including the Madras High Court.

In Jarnail Singh vs State of Haryana (2013) case, the Supreme Court held that the given statutory provision should also be the basis to help determine age even for a child who is a victim of crime. Society's emphasis on controlling female sexuality under the guise of protecting "honor" has also been critiqued, as it restricts adolescent girls' autonomy. By denying them the option to say "yes" outside of "legal" marriage and "no" within, this undermines women's sexual autonomy.

This runs totally counter to the judgment of Joseph Shine vs Union of India, where the Hon'ble court pulled women out of the image of chattel. Additionally, the requirement to report all cases of sexual activity under POCSO discourages adolescent girls from seeking safe abortions, leading to barriers in accessing healthcare.

The inconsistency between POCSO and other laws, such as the Child Labour Act, which allows children over 14 to work in hazardous industries, highlights the need to reconsider the age of consent.

The Death Penalty and Its Controversies

In 2019, the POCSO Act was amended to introduce the death penalty for certain offences, including the rape of minors under 12. While this amendment was in response to public outrage over heinous cases of child sexual abuse, it has sparked significant debate. The increased punishment in the recent amendment by the legislature has been a direct result of the outrage and the protests across the country.Notable examples include the Nirbhaya case and the Kathua case. The complex and lengthy judicial process involved in capital punishment, requiring multiple appeals and reviews, often leads to few executions.

Between 2000 and 2015, 30% of death sentences were overturned on appeal. It may also be argued that because of the introduction of the death penalty in POCSO, the Special Courts who are time-bound in deciding the trial will have to expedite the whole process, the consequence of which would be a hasty decision and awarding of a death sentence. The public often supports the death penalty for rapists, but many experts argue it offers no real solution and may encourage perpetrators to murder victims to eliminate witnesses.

Victims, especially children, may also struggle to report abuse, particularly if the abuser is a family member, as fear of social exclusion or destabilisation of the family keeps them silent. Equating rape with murder reinforces patriarchal notions and attaches stigma to survivors. The death penalty fails as a deterrent, as seen in the Nirbhaya case, and risks being a populist, politically driven response rather than a victim-centered solution to address rape.

Exclusion of Mentally Disabled Victims

Another grey area in the POCSO Act is its failure to include mentally disabled individuals whose mental age is below 18. In a recent case law of Ms Eera vs State (Govt of NCT of Delhi), the Apex Court faced a very perplexing question. Whether the mentally challenged people who have a mental age under 18, will get protection under the beneficiary legislation of POCSO?

The court refused to interpret the word child liberally. Further, Justice RF Nariman said, "the definition of the term 'age' in section 2 (d) of the act cannot include mental age of a victim and hence it has to be the physical age of the victim, further the bench said it is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word 'mental' into section 2 (1)(d) of the POCSO Act."

This has raised concerns about the ability of current laws to adequately protect vulnerable individuals with mental disabilities from sexual offences. The Rights of Persons with Disabilities Act, 2016 provides some safeguards, but it lacks the detailed provisions present in POCSO. The courts have ruled against incorporating a mental age criterion into these protections, emphasizing that mental incompetence should not be equated with minority status.

This decision aligns with the POCSO Act's objective of safeguarding minors, but it inadvertently leaves mentally disabled adults without adequate legal recourse. Proving a victim's mental age would require complex medical evaluations, contradicting the fast-track nature of the POCSO process and potentially prolonging legal proceedings. As such, extending POCSO protections to mentally disabled individuals, while necessary, is deemed impractical and unrealistic given the current legal framework.

Barriers to Healthcare: Criminalisation Of 'Consensual' Sexual Intercourse

The age of consent serves as a crucial legal safeguard against sexual exploitation, defining the age at which sexual acts are considered statutory rape, irrespective of consent. Under the UNCRC, a "child" is defined as anyone under 18, yet the age of consent varies significantly worldwide, from 12 in Mexico to 18 in countries like India and various states in the U.S. In India, the POCSO Act established an age of consent at 18 for both penetrative and non-penetrative sexual behavior, aligning with the 2013 amendments to the Indian Penal Code, which criminalise sexual contact with a woman under 18 as rape, regardless of consent.

Historically, there were no legal protections for boys against sexual assault, and while the POCSO Act has introduced gender-neutral provisions, it often fails to ensure equitable treatment for male victims. In cases involving minors, boys are frequently labeled as perpetrators, especially when relationships between minors result in accusations of abduction or rape. Such accusations can lead to serious legal consequences, including lengthy incarceration, even if they are ultimately acquitted, due to the slow judicial process in India.

Recent trends indicate that courts may be more lenient towards male defendants if the victim later admits to consensual relations, despite the law maintaining that a child's consent is irrelevant. In certain cases, such as State v. Akhilesh Harichandra Mishra, where a minor eloped, married, and had children with the accused, courts have acquitted the male, reflecting a leniency towards couples who later marry.

The POCSO Act complicates matters further by mandating the reporting of all sexual offenses against minors, which inadvertently endangers the health and wellbeing of young women. Section 19(1) requires that all cases of sexual crimes be reported to authorities, which can deter adolescents seeking help, such as abortion services, from disclosing their circumstances due to fear of legal repercussions. This has led to unsafe abortion practices, which contribute significantly to maternal mortality in India, with approximately 10 deaths daily attributed to unsafe procedures. A 2015 study highlighted that out of 15.6 million abortions in India, only 22% were conducted in proper health facilities, leaving a majority at risk due to unsafe practices.

Challenges in Implementation
The implementation of the POCSO Act has faced several hurdles since its inception. Despite the creation of special courts to fast-track cases involving child sexual abuse, these courts remain overburdened, leading to significant delays in the resolution of cases. For instance, in states like Delhi, POCSO cases take an average of 3 years to be resolved. These delays undermine the effectiveness of the law and deny justice to victims, many of whom are left waiting for years before their cases see any progress. Though there is a provision to record statements using audio-video means, however, there are still reports of lapses in the investigation and preservation of crime scenes in some cases.

In Shafhi Mohammad vs The State of Himachal Pradesh (2018), the Supreme Court held in cases of heinous crimes, it is the duty of the investigating officer to photograph and videography the scene of crime and to preserve the same as evidence.In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge.

One major challenge is the uneven implementation of the Act across different states. While some states like Tamil Nadu have reported high disposal rates, other states like Uttar Pradesh struggle with a backlog of cases, with over three-fourths of the total cases filed still pending. The burden on the judicial system exacerbates these issues, as the evidence stage in POCSO trials tends to be disproportionately time-consuming.

This stage, which includes the cross-examination of witnesses, often drags on for months, further prolonging the legal process. While the law mandates the provision of support services for victims, there is often a lack of trained personnel. Many children fail to receive the necessary psychological support, which is critical to their recovery. Also, Reporting and disposal of cases vary significantly across regions, with some states reporting nearly 90 cases per 100,000 people while others report less than one case.

Recommendations for Reforms
Proposing below the following changes to POCSO act to strengthen its effectiveness:

1. Reducing the Age of Consent: The age of consent should be reconsidered, possibly lowering it to 16, with appropriate safeguards to prevent exploitation.
2. Fast-Tracking Cases: Courts should prioritize POCSO cases to ensure they are disposed of within the mandated one-year time frame. This would require increasing the number of special courts and reducing the burden on existing ones.
    
3. Training and Sensitisation: It is essential to conduct regular training programs for police, judiciary, and medical professionals involved in handling POCSO cases. Sensitivity towards the trauma experienced by child victims and their families is crucial.
    
4. Better Support for Mentally Disabled Victims: The law should extend protections to individuals whose mental age is under 18, ensuring that mentally disabled victims are treated with the same care and protection as children.
    
5. Healthcare Reforms: Amendments should be made to ensure that reporting requirements do not prevent adolescent girls from accessing safe abortion services.

Conclusion
The POCSO Act is a landmark piece of legislation that has undoubtedly played a critical role in safeguarding children from sexual offences. However, the law is not without its shortcomings. From the criminalisation of consensual teenage sexual activity to the introduction of the death penalty, the Act requires thoughtful reform to address its grey areas. As India continues to grapple with the realities of child sexual abuse, it is essential that the laws in place not only punish offenders but also protect the rights and well-being of victims in a holistic and just manner.

This article is a call to action for legislators, policymakers, and society to continue refining the legal frameworks that protect children while balancing justice with compassion and care for the most vulnerable members of society.

Case Laws:

1. Joseph Shine vs Union of India 3 SCC 39, AIR 2018 SC 4898
2. Jarnail Singh vs State of Haryana AIR 2013 SCC 3467
3. Ms Eera vs State (Govt of NCT of Delhi) 2017 SCC OnLine Del 10384
4. State v. Akhilesh Harichandra Mishra 2020 SCC OnLine MP 2466
5. Shafhi Mohammad vs The State of Himachal Pradesh 2018 (1) S.C.Cr.R. 473

References:

1. Dutta, A. (2019). "Understanding the Age of Consent: A Comparative Study." Journal of Law and Policy, 27(2), 123-145.
2. UN Convention on the Rights of the Child (UNCRC)
3. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
4. Criminal Law (Amendment) Act, 2013. Government of India.
5. Kothari, A. (2016). "Protection of Mentally Disabled Persons under Indian Law." Indian Journal of Law and Justice, 7(1), 45-63.
6. Rights of Persons with Disabilities Act, 2016.