Loopholes in POCSO
LOOPHOLES IN THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 =
INTRODUCTION
The Protection of Children from Sexual Offences Act, 2012[1]. The demand for a centralized legislation that protected children was deeply felt during that time in India, because of; the the lacunae left by previous legislations, as well as, the growing rate of crime. This landmark legislation thus aimed at providing a legal framework within which children could reach the doors of justice. The act has been quite successful, however continues to remain bound by its shortcomings.
SOLUTIONS PROVIDED
The act claims to be gender-neutral[2].
PROCEDURAL DRAWBACKS ===
False cases may also be put through the child to avoid punishment by erasing the possibility of direct liability that is otherwise caused by retracement[3]. Though the act tries to deal with certain issues, it cannot remove the innate burdens and issues of Indian courts that have overtime been normalized.
===
ISSUES MATERIALIZED ===
Among these issues, delays and inconsistencies with evidence have been “accepted”. Without adequate protection of witnesses, the conviction rate further reduces. Interim compensation has not been awarded in a timely fashion. Even final compensation (or sentencing) is dependent on the whims and fancies of judges[4] is not only contrary to principles of law but also justifies unfair treatment by the law towards its subjects. The chain of command is not established by this act thus leading to a lack of accountability as no one person holds the responsibility of ensuring justice. This harms not only the victim but also, the accused in cases of false charges or statutory rape. Lack of protection to both parties equally is problematic (justified by the guilty assumption) because lack of punishment for retracement by children allows false cases to become a tool of societal gain (for instance, the social stigma caused by the case or the unchecked bail time in this case). Further, by restricting the scope of the act to only biological, and not mental, age of the victim reduces the option of recourse for several persons. Additionally, after crossing all these hurdles, when the case reaches the court, efficient and capable lawyers are required (who are able to coordinate with the public prosecutor). The implications of letting these issues remain in our legislation allows for judicial injustice.
CONCLUSION ===
Although the act solves several problems that it aimed to, it is still rife with numerous issues. With its 46 provisions that increase scope of protection, the act seems to be the ideal as, inter alia, it solves the issue of ambiguous definitions. However, using a critical lens would help see the problems in this centralized legislation. These seemingly innumerable barriers make regulation by the required authorities on this issue even more pressing. Public trust in law and order is to be upheld by creating and introducing reforms (for example, through awareness for children maybe sex education classes, training for sensitization of professionals, proper allocation of resources amongst state authorities). These issues cannot go unchecked as they not only injure the physical and mental state of victims but also the innocent accused and the true perpetrator; society.
- ↑ http://ibid 3
- ↑ https://www.clearias.com/pocso-act/#:~:text=Under%20POCSO%2C%20the%20consent%20of%20a%20person%20under,that%20any%20sex%20with%20a%20minor%20is%20rape. 6
- ↑ https://www.jurist.org/commentary/2020/05/mayank-tiwari-posco-act/#:~:text=Loopholes%20in%20the%20Act%20Upon%20a%20preliminary%20reading,possibility%20of%20consent%20given%20by%20persons%20under%2018. 9
- ↑ https://www.law.cornell.edu/wex/presumption_of_innocence 11
- ↑ http://ibid 3
- ↑ https://www.clearias.com/pocso-act/#:~:text=Under%20POCSO%2C%20the%20consent%20of%20a%20person%20under,that%20any%20sex%20with%20a%20minor%20is%20rape. 6
- ↑ https://www.jurist.org/commentary/2020/05/mayank-tiwari-posco-act/#:~:text=Loopholes%20in%20the%20Act%20Upon%20a%20preliminary%20reading,possibility%20of%20consent%20given%20by%20persons%20under%2018. 9
- ↑ https://www.law.cornell.edu/wex/presumption_of_innocence 11