POCSO (Amendment) Act 2019
Highlights:
• It will make punishment more stringent for committing sexual crimes against children including death penalty.
• The amendments also provide for levy of higher fines and imprisonment to curb child pornography.
• Amendments are also proposed to protect children from sexual offences in times of natural calamities and in other situations where children are administered, in any way, any hormone or any chemical substance, to attain early sexual maturity for the purpose of penetrative sexual assault.
Significance:
• The amendment is expected to discourage child sexual abuse by acting as a deterrent due to strong penal provisions incorporated in the Act.
• It intends to protect the interest of vulnerable children in times of distress and ensures their safety and dignity.
POCSO Act 2012
Role of police:
The Act casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, and bringing the matter in front of the Child Welfare Committee (CWC), should the need arise.
Safeguards:
• The Act further makes provisions for avoiding the re-victimisation 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.
• Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence.
• Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.
Mandatory reporting:
• The Act also provides for mandatory reporting of sexual offences.
• This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
Concerns
• Burden of proof - Usually, in criminal cases, the burden of proof lies on the prosecution, and the guilt must be proved beyond reasonable doubt. Under POCSO, however, there is a presumption that a person who is prosecuted for an offence has actually committed the offence, unless the contrary is proved (Section 29). Instead of “innocent until proven guilty”, the court assumes that the accused is guilty once the prosecution lays the foundation of the case.
• The Act also presumes that the accused person had a sexual intent when touching the child (Section 30). The amendment does not address this existing issue.
• Under Article 21 of the Constitution, a person can only be deprived of their life or liberty in accordance with the procedure established by law, which should be just, fair and reasonable. The procedure for punishment does not meet the criteria for `due process’ as the accused is assumed to be guilty till proved innocent.