RSTV – THE BIG PICTURE ANALYSIS : Sex Abuse and Safeguarding our Children
Covers GS paper2
- Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
- Moving to deal with rising cases of child abuse, the Union Cabinet has approved amendments to the gender-neutral Protection of Children from Sexual Offences (POCSO) Act, 2012, allowing death penalty for all cases of aggravated penetrative sexual assault against children.
- The amendments cover 21 kinds of sexual crimes that come under the definition of aggravated penetrative sexual assault against children.
What is the background?
- By approving an amendment to Section 6 of the POCSO Act, the Cabinet has enhanced the minimum punishment in such cases from the existing 10 years to 20 years and the maximum punishment to life imprisonment or death penalty.
- As per the last available data, from the National Crime Records Bureau 2016, less than three per cent of child rape cases that came up before the courts under the POCSO Act read with Indian Penal Code Section 376 ended in convictions, pointing to the need for better access to justice for all, and not just more stringent conviction in a small percentage of cases.
What are the highlights?
- Aggravated penetrative sexual assault includes certain cases of child rape by police, armed forces, relatives, public servants or management of remand/protection homes, by those on the management or staff of healthcare, educational or religious institutions within their premises.
- It includes continued rape or gang rape of a child or sexual assault using weapons.
- It is also applicable in cases of rape where the child is harmed either physically, or in his/her sexual organs, impregnated or has to live with life-threatening infection as a result of the sexual assault, rape of children with mental or physical disabilities, and rape and attempt to murder.
- Penetrative sexual assault on children in times of communal violence now also attracts the maximum penalty of death.
- 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.
- According to Woman and Child Development Ministry data, children comprise more than half the victims of disasters.
- The POCSO amendments also include stringent punitive measures in cases of child pornography including in cases where it results in aggravated sexual assault.
- It also increases the penalty for storage of pornographic material for commercial purposes to an imprisonment between three to five years, or a fine, or both.
- Failing to report or destroy such material or propagating it further will now be considered an offence.
What are the punishment awarded?
- An amendment has also been approved to Section 4 of the POCSO Act so as to increase the minimum punishment to ten years, from the existing seven years, for ‘penetrative sexual assault’ of 16 to 17 year olds and if the child is below the age of 16 years, to a minimum of 20 years.
- The maximum term of life imprisonment in such cases has been retained.
- Moreover, 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.
- Government has also informed the parliament that 1023 fast track courts that will be set up in the country for speedy trial of cases of sexual assault on women and children.
- In response to this, the Supreme Court has also asked the government to set up fast track courts particularly for POCSO cases.
- The centre has been asked to allocate funds so that such types of courts can be set up.
- This will include appointing judges, support staff and special prosecutors.
- The court has also given the government a 60-days deadline for such courts to start functioning.
What are the issues related?
- The reason given for introducing the death penalty is that it will deter child sexual abuse.
- The government’s press release does not cite any evidence to prove that the death penalty can achieve this goal, in the absence of better policing and shorter trials.
- POCSO is already a stringent act, carrying presumptions of guilt of the accused.
- Imposing the death penalty for offences that already carry such stringent presumptions violates the right to life guaranteed under the Constitution.
- Further, it is especially difficult for the poor or disadvantaged groups to overturn these presumptions.
- And, studies show that most death row prisoners are from poor, lower caste or religious minority communities.
What is the way forward?
- The budget allocated by the government under the women and child development should be fully utilised as despite making provision of good amounts, the funds remain largely unutilised.
- All public buildings should have close circuit TV cameras and the entire expenses on treatment of such victims should be borne by the state.
- The medical examination of female victims in such cases should be done by lady doctors.
- The role of mental health professionals is also crucial in such cases.
- There is no institutional mechanism to provide psychological counselling for rape survivors in India.
- Most of the Indian laws like IPC, POCSO Act, Protection of Women from Domestic Violence Act, The Sexual Harassment of Women at Workplace Act, etc., have provisions only for awarding monetary compensation to the victims of criminal offence.
- The Centre would have to appoint trained, sensitised prosecutors and support persons to deal with the POCSO cases and also directed the chief secretaries of states and union territories to ensure timely submission of forensic reports in such cases
- However, we should recognise the fact that POCSO is often misused to cover up cases of elopement or inter-caste marriages.
- Therefore, the Bill should look into the fact that any harassment under the POCSO should be avoided, calling for attempts to curb misuse.
- The case assumes significance not only for the landmark judgment but also the pace of police investigation, arrest of the accused and completion of trial, all of which were completed within six months.