Alarming rise of CSA and need of POCSO in J&K
During lockdown, Child Sexual Abuse in the virtual world surged exponentially, even in Jammu and Kashmir. A harsher law is in place to report and take sexual offenders to task. But what do we know about POCSO?
By: Muzamil Bashir
What is POCSO?
The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
Special provisions of the Act
The POCSO Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimization of the child at the hands of the judicial system. Protection of Children from Sexual Offences Act, 2012 received the President’s assent on June 19, 2012. It was notified in the Gazette of India on June 20, in the same year.
The Act deems a sexual assault to be “aggravated” under certain circumstances; when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority. Special emphasis has been placed on ensuring the speedy disposal of trials in special children’s courts as well as following special procedures to keep the accused away from the child at the time of testifying.
Need and Importance of POCSO
As the offences with children are growing everywhere, a strong urge is felt to stop the mess. It is further accelerated by the steep rise in child abuse cases in India. In 2007, a survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states, showed that 53% of the children have been subjected to one or more forms of sexual abuse. In 2010, 26,694 cases of Child Sexual Abuse (CSA) were reported and a total of 33,098 cases were reported during the year 2011. There was a gigantic 24% increase in Child Sexual Abuse cases in 2011 as compared to 2010.
Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children. However, the law did not make a distinction between an adult and a child. POCSO Act assumes a great importance as it deals with sexual offences against persons below 18, who are deemed as children.
Amendment in the Act
The brutal gang-rape and murder of eight year old Rasana girl generated a fresh debate on the implementation of child protection laws. The demand for more stringent and harsh laws against the perpetrators became shriller. During this episode, the crimes against children in J&K had bloomed covertly. Under enormous pressure, the Government of India amended the POCSO Act to make it harsher. Accordingly, the Protection of Children from Sexual Offences (Amendment) Bill, 2019 was considered and passed by the Lok Sabha on 1st August 2019. Further, the same received the President’s assent on 5th August 2019. It was published in the Gazette by the Ministry of Law on 6th August 2019 and has also been notified by this Ministry to be made effective from 16th August, 2019. Under amended provisions in the Act, the death penalty has also been introduced as a possible punishment in cases of aggravated penetrative sexual assault.
To facilitate reporting of offences/complaints, the POCSO e-box was launched on 26th August, 2016. POCSO e-Box is an online complaint management system for easy and direct reporting of sexual offences against children and timely action against the offenders under the POCSO Act, 2012.
Awareness and Implementation
Strong directions have been passed on to State governments to take measures for giving wide publicity through all types of media and imparting periodic training to all stakeholders on the matters relating to implementation of POCSO’s provisions, the Act remains to be an unknown legislation.
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 implementation of the provisions of POCSO. The Supreme Court in a hard-hitting directive issued on February 7, 2013, ordered all States to ensure that the regulatory and monitoring bodies are constituted and made functional. However, till date, such Commissions are either only partially-functional or effectively non-functional.
Introduction of Child protection laws in J&K
The POCSO Act 2012 applied to all the states of India except Jammu and Kashmir before the abrogation of Article 370. The Kathua episode came to be the worst blot on the child protection system in Jammu and Kashmir. The complaint to look into the gruesome rape and murder was filed before the National Commission for Protection of Child Rights. The Commission immediately forwarded it to the Chief Secretary of Jammu and Kashmir citing that the POCSO Act 2012 does not apply to Jammu and Kashmir. The issue of scarcity of rigorous provisions to protect the children of Jammu and Kashmir came to forefront. The voices for bringing the law on the pattern of the POCSO Act grew louder.
A petition filed on change.org asked for the enactment of POCSO to address Child Sexual Abuse in Jammu & Kashmir. In the petition, it was mentioned that CSA is the least spoken subject in a conservative society like Jammu & Kashmir (J&K). CSA is spreading like an epidemic in J&K; hence, there has been a consolidated effort by a group of victims and survivors to raise awareness about CSA and the role of parents and schools in preventing CSA, via social media, for almost 2 years.
The study conducted by the Ministry of Women and Child Development in 2007 revealed that “1 in every 2 children is subjected to sexual abuse in one or more forms before they reach the age of 18 was cited in the petition. There is enough evidence that abuse happens in our homes, schools, and religious institutions.
As per the statistics provided by the National Crime Records Bureau (NRCB), the number of child sexual abuse cases registered in Jammu and Kashmir in 2014 was 211, 30 in 2015 and 25 in 2016. Days after the Union government approved an ordinance to amend the Protection of Children from Sexual Offences (POCSO) Act, the Jammu and Kashmir Cabinet on the pattern of Central POCSO Act 2012 also passed an ordinance approving death penalty for child rapists. By means of an amendment to the Criminal Law Ordinance 2018, enhancement in the punishment up to 20 years/ life imprisonment for sexual offences against women less than 13 to 60 years.
Further J&K Protection of Children from Sexual Violence 2018 ordinance was also enacted as per which, death penalty/life imprisonment will be awarded for sexual offences against children up to the age of 12 years. Investigation of cases has to be completed within two months and trial to be completed in six months. The law came to be known as J&K’s own POCSO Act.
Extension of POCSO Act 2012 to J&K
With the abrogation of article 370 and the transition of J&K from State to Union Territory, the central POCSO Act, 2012 was extended to the J&K also. The National Commission for Protection of Child Rights welcomed the move saying that the Children of Jammu Kashmir will now get protection against Sexual Offences through an effective POCSO (Protection of Children from Sexual Offences) Act.
Establishment of special courts under POCSO Act and its Funding
The Union Government proposed to set up a total of 1,023 fast-track special courts for expeditious trial of over 1.66 lakh pending cases exclusively registered under POCSO Act in the country. In Jammu and Kashmir, the Administrative Council also established four fast track special courts for effective implementation of the Criminal Law Amendment Act, 2018 by ensuring targeted disposal of pending rape cases and Protection of Children from Sexual Offences Act (POCSO) cases. Out of the four Courts, two FTSCs, one each in Jammu and Srinagar shall exclusively be meant for a trial of cases registered under POCSO Act. The other two, at Kulgam and Reasi shall deal with cases involving offences against women including rape. The council also approved the establishment of Office of Special Public Prosecutors along with other staff, for the two Fast Track Courts that shall be set up at Jammu and Srinagar exclusively for POCSO cases. .
Following the POCSO Amendment bill 2019, the Government of India had released the funds to the States/UTs under Child Protection Scheme including Jammu and Kashmir. In 2016-17, 43.12 lakhs were released to Jammu and Kashmir, 807.48 lakhs in 2018-19, and 2106.94 lakhs in 2019-20.
Effective Implementation of POCSO Act in J&K
As the POCSO Act, 2012 has already been established in Jammu and Kashmir, there is a strong need to point out a large number of factors for its effective implementation. The Integrated Child Protection Scheme (ICPS) already established in Jammu and Kashmir laced with POCSO Act can bring a strong change in the child protection machinery of the state.
The District Child Protection Units with full coordination of Juvenile Justice Boards and CWC’s with the support of Government can take the challenge to make the POCSO Act blossom in the UT head-on. The most important element in handling the POCSO Act is effective psychological management in the children while dealing with the cases. The Justice Verma Committee Report, in one of its conclusions on child sexual abuse, holds that “there is an urgent need to audit the performance of all institutions of governance and law and order and that needs to be done in J&K on top priority.
A multi-dimensional, multi-agency team and multi-tier approach including access to psychosocial support are to be made available to deliver holistic comprehensive care under one roof for victims of child sexual abuse. All the stakeholders need to be sanitized about the provisions of POCSO Act in the UT of Jammu and Kashmir. The extension of the POCSO Act in J&K will not make any difference until it is implemented letter and spirit. Strong awareness campaigns need to be organized in a coordinated way to make the law more fruitful. Proper real-time monitoring of cases needs to be done to bring the best results. The weak implementation of the strong provisions shall not be allowed at any cost. That is the essence of the POCSO Act.