Death Penalty Against POCSO Act - Utkarsh Sharma

**Earlier Published in Unitedworld School of Law (UWSL), Karnavati University News Letter, September 2019. The link is as follow https://karnavatiuniversity.edu.in/wp-content/uploads/2019/09/UWSL_Sept._2019-revised.pdf

INTRODUCTION

Children are said to be the messenger of Gods. They are said to be a form of God themselves in our Indian culture. In a culture which says so much about a child, abuse of the same is something which cannot be digested or accepted easily or in any way. Children are humans as innocent as anyone can be. They are oblivious of everything going on in this world and live in their own little playful bubble but these days criminal activities have begun even with these little messengers and innocent creatures. They are subjected to all forms of illegal and criminal activities. They are kidnapped, they are used for extortion purposes and the females are even raped. It is an unquestionable fact that all genders face many types of abuse today but criminal activities with the female sex have increased way too much lately. They are sexually abused and left to die.

A child is no supposed to face all this. This person has not come in this world on their own and with their own free will. Their brains are not yet matured and they are unaware of all the evils of this world. Even with such beings, crimes happen. People take advantage of the innocence of children and use them to revenge their parents or any member of their family and their loved ones. A child is supposed to play, learn, grow, get educated, be loved immensely, and not face these things. But what can you say in a world where monsters are slowly replacing the human nature of people and men.

Scenario of Child Sexual Abuse Globally

Globally violence against children affects children across the whole world. As per Ending Violence in Childhood Global Report 2017, at least three out of four of the world’s children experience violence, cruelty and abuse in their daily lives. It does not matter whether they live in rich countries or poor. Based on the estimates, the victims of sexual abuse include 20 percent of girls and 5 to 10 percent of boys. Violence violates the dignity and rights of children, and steals them of the joys of childhood. Childhood violence also disrupts the creation of capabilities, and imposes great amounts of financial and human burden on individuals and societies.

Scenario of Child Sexual Abuse in India

The issue of Child Sexual Abuse is widespread across India, causing impacts on children of all ages, of all socio-economic classes and genders. Half of the nation’s children face some form of sexual abuse, with 21% of them facing severe sexual abuse. Boys outnumber girls with 53% and girls account for 47% of all children reporting abuse. This is in accordance with Child Abuse Report, Women and Child Development India, 2007.Despite its high prevalence, violence against children is often unseen and un-reported. In a country where sexuality is still a taboo, the expressions to communicate around sexuality and sexual abuse do not exist. Caregivers do not often have knowledge or comfort to provide to children. In such a situation, the burden is on the education system to provide children with the essential life and observation skills to identify unsafe touches and situations and seek for help. However, the education system does not make much effort to address it. No one accepts the fact that Child Sexual Abuse can affect the mental health of the child to a very extreme extent and can continue to affect their adulthood if left unhealed.[1]

 IMPACT OF CHILD SEXUAL ABUSE

The impacts of Child Sexual Abuse can vary and be numerous. Sexual abuse can impact the life of children at many levels including: physiological, psychological, and social and also sexual behavioural patterns. Physical impacts can lead to problems in pregnancy, tears to vaginal or anal area, sexually transmitted diseases, repeated urinary infection and psychosomatic illness. Psychological impact comprise of a usual and uncertain fear of people and places. Some more are eating and sleeping disturbances, anxiety, nightmares and hyper-vigilance. Some children may experience clinging behaviour, indifference, frequent daydreaming and dissociation too. Some more are lack of trust in self and others, regressive behaviours such as thumb sucking, soiling and bedwetting. The deepest impact can cause suicide. Social impact can include sudden withdrawal from society or overly pleasing behaviour on the contrary. There may be increased hostility, aggression and drastic effects on academic performance. Sexual abuse in childhood can cause clear and transparently visible changes in sexual conduct and manners. Some of these may include over dressing, under dressing, sexual anxiety, and unusual sexual behaviour. It is possible that the trauma of Child Sexual Abuse may create anxiety issues and confusion concerning sexual identity.It is difficult to segregate the short-term impacts of child abuse from the long-term impacts. This is so because the former may often be the beginning of a long-term problem. Long term impacts may include: low self-esteem, guilt, shame and depression. Some more are the feeling of being isolated, antisocial behaviour, consumption of drugs & alcohol, aversion to close and intimate relationships, aversion to having sex and re-enacting their own abuse.

However, if children who experience sexual abuse are supported by their guardians and their trusted and loved ones, they can recover a lot quickly. Indeed, some children and even adult victims might not show any impact of Child Sexual Abuse if they have a strong emotional support system before the abuse.

UNDERSTANDING CHILD SEXUAL ABUSE (CSA)

Child Sexual Abuse (CSA) is a type or form of child abuse. Child Sexual Abuse happens when a child is used by a person for his/her sexual gratification. Child Sexual Abuse is mostly committed by someone in a powerful position and/or authority, and sometimes, even by someone in a position of trust. It is much easier for a person to take advantage of the child’s helplessness and vulnerability, hence uses a child for causing abuse. Such type of sexual abuse may be physical, visual or verbal. A child’s body as well as the child’s trust are violated and such type of sexual abuse is also against the law. Child Sexual Abuse can be categorized as contact and non-contact abuse, which includes:[2]

a)Contact Abuse includes Penetration of anus, vagina, oral sex, playing with the child’s private body parts, making the child play with the abuser’s private parts, etc. It also encompasses forcible kissing, sexually touching of any body part.

b)Non-Contact Abuse encompasses: Making the child see the private body parts, looking at the private body parts to the child, taking photographs of a nude child, making the child view pornographic films, causing online abuse, encouraging a child to watch or listen to sexual content.

LAWS RELATING TO CHILD SEXUAL ABUSE IN INDIA

1. Protection of Children from Sexual Offences (POCSO) Act, 2012

The Protection of Children from Sexual Offences (POCSO) Act 2012 was formed in order to effectively address sexual abuse and sexual exploitation of children across the country using legal provisions. POCSO received the President’s assent in the year 2012 and was notified in the Gazette of India the following day.

The objectives of the POCSO Act include protecting children from the offences of Sexual assault and sexual harassment, protecting pornography and to establish Special Courts for speedy trial of such types of offences. The important features of the Act are that anyone below the age of 18 is defined as a child. This act addresses a wide range of sexual offences. The law protects children from both types of sexual abuse as mentioned above. It places the burden of proof on the accused and assures punishment for all perpetrators irrespective of age and gender.

2. JUVENILE JUSTICE ACT

The Juvenile Justice (Care and Protection of Children) Bill, 2015 was passed by the Lok Sabha in 2015 and received Presidential assent later that year. It replaced the Juvenile Justice Act of 2000. It provides provisions for both children in need of care and protection and for children in conflict with the law. Some of the key provisions include: Change in nomenclature from the word ‘juvenile’ to ‘child’ or ‘child in conflict with law’ all across the Act to remove the negative feeling associated with the word ‘juvenile’. There is much more clarity in powers, function and responsibilities of the Juvenile Justice Board (JJB) and the Child Welfare Committee (CWC).Addition of a separate new chapter on Adoption to cover the adoption of orphans abandoned and surrendered children. The existing Central Adoption Resource Authority (CARA) in the act has been given the status of a statutory body. There are inclusions of new offences committed against children and registration of Child Care Institutions is made mandatory. Under Section 15 of the act, special provisions have been made for handling child offenders committing heinous offences in the age group of 16-18 years. Several new offences, which are not covered under any act and offences committed against children are included in the Act. These include sale and procurement of children for any motto or purpose, corporal punishment in institutions for child care, use of a child or children by militant groups, offences against children who are disabled and kidnapping of children.[3]

3. General Principles for assistance by Professionals and Experts given to the Child at Pre-trial and Trial Stages [4]

The fundamental principles which are to be followed by a person during the solving of a case involving a sexual offence against a child have been laid down in various international instruments and in the Preamble of the POCSO Act too. The State Authorities, the Special Courts, the Child Welfare Committee and the Police including all other Government functionaries plus Non-Government Organisations are bound to abide by these principles while assisting a child as a sexual abuse victim. These principles are –

a) Right to life and survival -Every child has the right to life and survival and to be protected from any form of hardship, abuse or neglect and to a chance for a harmonious development. The child deserves a standard of living adequate for growth including physical, mental, spiritual, moral and social growth. In the case of a child who is suffering from trauma, every step should be taken to enable the child to enjoy healthy development.

b) The best interests of the child - Every child has the right to have his/her best interests given primary priority. Protecting the child’s best interest’s means enhancing the child’s capacity and to be given protection against secondary victimisation. This kind of victimisation refers to the victimisation that occurs through the response of institutions and individuals to the victim and not as a direct result of the criminal act.

c) The right to be treated with dignity and compassion - Child victims should be treated in a caring and sensitive manner throughout the process of granting them justice. Their personal situation and immediate needs, age, gender, disability and level of maturity must be taken into account. Their physical, mental and moral integrity must be fully respected.

d) The right to be protected from discrimination - The justice process and support services available to child victims should be sensitive to the child’s age and other aspects related to a child namely their wishes, gender, sexual orientation, understanding, ethnic, religious, cultural, linguistic and social background, caste and socio-economic condition, as well as their special needs including health, abilities and capacities. Professionals should be trained and provided information about such differences. Age should not be a barrier to a child’s right to take complete part in the justice process. Every child should be treated as a capable witness, as per his/her age and level of maturity.

e)The right to special preventive measures – Children may already face twice as much risk of repeated victimisation as adults because they are often perceived to be vulnerable by potential offender. They are unsure of how to defend themselves or unable to properly assert themselves and take a strong step against an adult.

f)The right to be informed - There are two sides of child victims’ and witnesses’ right to be informed. The first aspect is a general one and comprises of informing the child victims and child witnesses about the assistance they are meant to have, the way legal proceedings are made to happen and the role they play in those proceedings. The second implies being informed about the progress of the case, about the scheduling of the legal proceedings, about what is expected of the child during the proceeding, about the decisions and orders given, about the status of the accused, etc.

Other principles include: The right to be heard and to express views and concerns, The right to effective assistance, The right to privacy, The right to be protected from hardship during the justice process, The right to safety and the right to compensation.

 DEATH PENALTY UNDER THE POCSO ACT

Death penalty for sexual abuse of children has been a recent amendment in this area of law. I have no hitch in expressing that this is an amendment which was much needed for punishing the evil men who don’t even spare little girls who are only a few months old or who are as small as the age of ten or twelve. Age is not the concern here. Sexual abuse is sexual abuse and a man must be hanged till death for so.

KATHUA RAPE CASE

Factual Background of the case

The case is all about kidnap, rape and murder of an 8 year old nomadic Kashmiri girl. A nomadic minor Kashmiri girl was kidnapped on January 10, 2018 and allegedly gang-raped in the temple of small village known as Rasana in Kathua district, Jammu and Kashmir. She was kept sedated for four days. Her severely injured body was found in a forest on the 17th of January. The kidnapping, rape and killing of the child was made to happen following a full proof plan and very strategically and all this just to remove the minority nomadic community from the area. This was the motto and reason the charge sheet stated. The case caused outrage across the state, forcing the government to pass over the case to the Crime Branch of Jammu and Kashmir Police.

Consequences of the case

· There were seven accused in the case. Out of these seven, one was acquitted due to lack of evidence and one was a juvenile who was tried in the juvenile court. Five of them were sentenced to life imprisonment of 25 years.

. The Central government amended the Protection of Children from Sexual Offences (POCSO) Act to add the provision of death penalty for the rape of children under the age of 12.

INCLUSION OF THE AMENDMENT

A. Punishment for the child rapists now includes death penalty: The rapists are to be punished with death penalty and life imprisonment. In case of gang-rape of a girl below 12 years of age, the punishment will be death penalty or life imprisonment. In case of rape of a girl below 12 years of age, the punishment will be- death penalty, life imprisonment or a minimum imprisonment of 20 years. In case of gang-rape of a girl below 16 years of age, the punishment will be- imprisonment for the rest of life. In case of rape of a girl below 16 years of age, the punishment will be imprisonment for a minimum of 20 years extendable for rest of life. In case of rape of a woman, punishment has been provided to be a minimum of 10 years extendable to life imprisonment.

B.Time limit for investigation and trials: The amendment says that the investigation of all rape cases should be completed within 2 months and the trial of such cases should be completed in 2 months. A time limit of 6 months has also been provided for disposal of appeals in such cases.

C.Restrictions on bail: The provision for anticipatory bail is unavailable for a person accused of rape or gang rape of a girl under 16 years.

D.Other provisions of the amendment: In order to help the victim of rape better, the scheme of One Stop Centres for assistance to the victim will be spread to all districts of the country. Dedicated manpower will be granted for investigation of rape cases. Special forensic labs will be set up in each State/UT specifically for rape cases and special forensic kits will be provided to all Police Stations and hospitals for such cases. New Fast Track Courts will be set up and there will be creation of new posts of public prosecutors in consultation with States/UTs. [5]

CONCLUSIONS

In my conclusion I would like to quote the same things which I did when I started writing this paper. A child is a being who deserves the most love, care and protection in the entire world and when such a being has to face violence and abuse, it’s a matter of shame. A child is not supposed to face all this. A child is supposed to play, grow, learn and be knowledgeable. This child has not come in this world on their own and with their own free will. Their brains are not yet matured and they are unaware of this world. Even with such beings, crimes happen. People take advantage of the innocence of children and use them to revenge their parents or any member of their family and their loved ones. We must make children and even their guardians/parents and their loved ones and all adults aware of child sexual abuse and make me learn about ways to get out of a situation or help their child get out of one before the situation even arises.

Below are the mentioned references:

[1]Apran NGO, The Issue, https://www.arpan.org.in/protection-of-children-from-sexual-offences-act-pocso/#1533626940821-a72ba0c5-b79a.

[2]Apran NGO, The Issue, https://www.arpan.org.in/protection-of-children-from-sexual-offences-act-pocso/#1533626940821-a72ba0c5-b79a.

[3]Apran NGO, The Issue, https://www.arpan.org.in/protection-of-children-from-sexual-offences-act-pocso/#1533626940821-a72ba0c5-b79a.

[4] Ministry of Women and Child Development, Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf.

[5]India today, Centre approves death penalty for rape of children below 12 years under POCSO Act. All about the amendment, https://www.indiatoday.in/education-today/gk-current-affairs/story/centre-approves-death-penalty-for-rape-of-children-below-12-years-under-pocso-amendment-1217116-2018-04-21.