‘Protection of Children from Sexual Offences Act, 2012,’ came into being after detailed, prolonged deliberations
Parents are often hesitant to file complaints when incidents of child sexual abuse occur. If the police do not extend cooperation, the possibilities of registering the complaint fade away further. Hence, the decision to withdraw the circular that mandated the Assistant Commissioner’s permission to register a complaint is apt.
“Last November, we were visiting Ambejogai. It came to our notice that a minor girl had been sexually violated multiple times. The 13-year-old was pregnant for four months. At 10 am, we went to the police station to file a complaint. Not only did we face multiple obstacles, we had to also undertake several follow-ups. It was only at 10 in the night that the police finally registered a case under POCSO,” said Tatvasheel Kamble, an active member of the Beed District Child Welfare Committee and an activist.
“It was morning by the time we got a copy of the FIR. I wonder, in my absence, would they have even registered the case? What would have happened to this young girl; I can’t even begin to imagine it,” Kamble added. Twenty four persons have been indicted in this case. Hearings are still going on, while a shelter home has accepted responsibility for the girl.
Even in the presence of a person, who’s an active member of a system that claims to protect children from sexual violence, the registration of the crime took its own sweet time. Across districts, most activists share similar experiences.
On June 6, Mumbai’s Police Commissioner, Sanjay Pandey had issued a circular, stating that it was mandatory to take permission from the Assistant Police Commissioner before filing a case under Protection of Children from Sexual Offences Act (POCSO). This circular was widely debated. Organisations working for children and women’s rights were severely opposed to this order. In response, Pandey issued a revised circular on the 18th of June, that stated that if the complaint raised under POCSO doesn’t seem suspicious or if a noteworthy offence seems to have occurred in the received complaint, the case needs to be immediately registered.
Pandey’s revised circular comes with a context: often, cases are registered under POCSO or about molestation, which stem either from old feuds or animosities amongst complainants. Most often, eventually, the accused are acquitted. However, several years pass by before the case is solved. In the meantime, the accused face vilification. To avoid this complexity, the process mandated that the police first investigate the complaint and then a final order from the Assistant Commissioner would be a go-ahead for registering the complaint.
The police department claimed that the process aimed at preventing the misuse of POCSO. However, legal and social sectors vehemently opposed this order, expressing their concern that the process of registering offences against children would become even more cumbersome and slow. And it is a fact. The Central Commission for Protection of Child Rights raised an objection against this circular and asked for its withdrawal.
A public interest litigation was filed in the Bombay High Court. On the 11th of June, Sanjay Pandey tweeted about a possible reconsideration of this circular, and finally on the 18th of June, a revised circular was issued.
In almost 80 per cent of cases of sexual offences against children, the perpetrator is known to the child, revealed a report by the National Crime Records Bureau in 2013-15. Victims and their parents are confused, scared and distressed. They fear defamation. Cases are rarely registered, because of the system’s procrastination or dissuasion. Unless they get appropriate and immediate help, parents most often withdraw their complaints. If the accused hold socially dominant positions or share close ties with powerful and affluent people, there’s a significant possibility that they may pressurize the legal system.
The Supreme Court’s judgment in the Lalita Kumari vs Govt. of UP & Others on November 12, 2013, proves pivotal in understanding the legal system’s expected response. The case was about the abduction of a minor girl called Lalita Kumari in 2013. The judgment states that in cases, which are cognizable, once the police receive a complaint, it is imperative that, without any delay, they register it and hand over a copy of the FIR to the complainant. In these cases, the police cannot delay in using their logical discretion for guiding the aggrieved complainant. There is no scope for slacking, because refusal to register complaints reduces public trust in the judiciary. This negatively affects the legal system.
The complaint filed by Lalita Kumari’s father was not registered by the local police station. The family had to visit senior officials several times. If the case consists of a cognisable offence under CRPC 154, the police need to take immediate cognisance of it.
Here, filing an FIR after a preliminary investigation is unacceptable, as stated by the Supreme Court. Hence, activists say, the Mumbai Police Commissioner’s circular dated 6th of June, 2022 proves to be an obstacle in conducting the due process under the POCSO Act.
Essentially, the Protection of Children from Sexual Offences Act, 2012, came into being after detailed and prolonged deliberation. In Indian society, where it is still impossible to speak about sexuality, it is even more gruelling to speak about sexual violence. Whenever an incident occurs at home, most families choose to operate in stringent silence around it. Hence, most incidents are quietly swept under the carpet.
POCSO specifically comes up with provisions that aim to break this silence and address this violence. POCSO was first implemented in 2012. Clause 14 of this Act states that it is not mandatory for the child to visit the police station to file a complaint. In fact, police officers are supposed to visit the victim’s house for statements, that too in civil clothes. It would be interesting to study to what extent this clause has been implemented.
The judiciary and the police systems are facing an acute shortage of human resources. Hence, the stack of delayed cases is only piling taller. It is important that the government and administration focus on reducing these gaps.
In highlighting the scope of the judicial process under POCSO, a provision under the Act states in the context of the hearings of POCSO cases, courts cannot use their discretion, nor special power granted to them. The Court is not entitled to reduce the years of conviction stipulated under the law either.
POCSO, Prevention of Child Labour Act, Right to Education Act, Prevention of Child Marriage Act are all pivotal to ensure children’s rights are realized. During and after COVID-19, crimes against children have only increased. For example, in Maharashtra the percentage of child marriages has increased to 21.1 per cent. Maharashtra comes right after Bihar, Uttar Pradesh, Rajasthan and West Bengal; this is worrying.
(Charkha features.)
(The author is a member of Sampark, a public interest advocacy and research organisation; translated from Marathi by Rucha Satoor.)
