One of the most common forms of abuse faced by children in India is Sexual Abuse. 37% of the Indian population comprises children below the age of eighteen and 53% of these children are reported to have been sexually abused. With the intention to protect children from sexual offences, the Protection of Children from Sexual Offences Act (“POCSO Act”) was implemented along with the establishment of special courts to deal with matters that fall within the ambit of the POCSO Act. Despite its intention to help reduce instances of child abuse and teenage pregnancies, there are a few flaws in the legislative language as well as the implementation of the Act which will be discussed in this paper.
Reporting of Cases
One of the many functions of the National Crime Records Bureau (NCRB) is to keep a repository of information on crime and criminals. It also compiles and publishes National Crime Statistics of India to aid investigators under each category such as crimes against women or children with further elaboration on crime heads for each state and union territory. This paper will be focusing on data released by the NCRB related to crimes against children in the states of Maharashtra, West Bengal, and Rajasthan.
In 2019 the number of cases recorded in West Bengal were identical to those in 2018. The reason provided by the NCRB, was that there was no receipt of data from the State for that year. This database is the official database in the country and is depended upon for its accuracy. The unavailability of data from the state government is rather troubling, especially because these statistics are meant to provide a precise image of the current scenario and not an approximate one.
In Rajasthan, which is a state that is infamous for child marriage cases, numbers are as low as 6 for the crimes reported under Prohibition of Child Marriage Act in the year of 2017. This data points towards a very serious problem where people are either not reporting cases that fall under these categories or in cases when reported, are not being entertained by the police as some of these practices are still considered normal.
The data is also speckled with zeros when it comes to cases of rape of children below the age of 18. For instance, according to the data, there were zero rape or attempt to rape cases reported under section 376 of the Indian Penal Code or the POCSO in the entirety of Maharashtra in the year of 2019. West Bengal had zero rape cases in the years of 2014 and 2018. This shows that there is some disinformation and negligence when it comes to sexual abuse of children. In a country with as many as 53% of the children facing some form of sexual abuse, people should be encouraged to file complaints in order to prevent it from happening again.
Possible Reasons for such numbers –
There are many sociological factors that may contribute for such low numbers of cases being reported. One of the most common reasons is that the perpetrator of the abuse is somebody within the family hence making it difficult for the child to approach the court considering the Indian culture where family is given utmost importance. Studies have shown that 18–20% of CSA (Child Sexual Abuse) occurs in the family and around 50% occurs in institutional settings such as schools or tuitions.
Inclusion of the Male Child
There is no space in the law for boys to be victims of sexual abuse. In cases where the adolescents have had consensual intercourse, it is often observed that the girl is considered to be a victim and the boy is considered to be the perpetrator.
Although the POCSO Act is supposed to be gender neutral, cases of sexual abuse towards boys are rarely ever considered. Studies have shown that more boys are sexually abused as compared to girls. However, the social understanding that boys are safe from such abuse, reduces the protection that they receive along with the ability to approach people with their trauma, because the sexual abuse of male children is considered to be a myth making it easier for the perpetrators to get away with it.
Possible Solutions –
One possible solution would be the introduction of a Romeo-Juliet clause under which consensual sex between adolescents below the age of 18 with an age gap of a certain number of years is permitted. This can be determined after discussions by a Committee consisting of people who work closely with adolescents. Such a clause would reduce the number of consensual cases that come within a reasonable age difference between the children. For example, a relationship between a 16-year-old and an 18-year-old can be acceptable while a relationship between 11 year old and 18 year old cannot be. The Supreme Court of India has identified the gap in the law for cases of consensual intercourse between minors who are old enough to feel physical attraction or infatuation. The Indian government has notified amendments in the Medical Termination of Pregnancy Act regarding the issues of pregnancy that may arise due to such relationship with or amongst minors where abortions can be opted for until 24 weeks of pregnancy instead of 20 weeks as provided before.
The second recommendation would be providing an education of the POCSO Act to the adolescents and teaching them what constitutes sexual abuse which can help increase the number of cases filed and therefore reduce the atrocities. It can also aid in reducing the number of children running away from their homes to be with their partner in order to be together and get married. The children need to understand the legal consequences that can be accrued by minors who run from home. These charges range from kidnapping to rape which can send the boy, who is almost always seen as the accused, to jail. Educating the general public about these provisions is of utmost importance, especially for a parent to be able to be able to protect their children. Even the police forces are not properly or completely aware of these provisions that have existed for almost a decade now, proving a severe deficit in the implementation of the Act. This Act will not be of any use unless the citizens of the country know how or when to use it. An example of an Act not being as impactful as it was meant to be due to lack of acceptance by the public would be the Dowry Prohibition Act. Dowry has been a tradition where anything of value is given or promised to be given by the bride to the groom or vice versa during or after the wedding. Such social acceptance and the sense of tradition makes it difficult for the courts to prevent such crimes from happening, making the implementation of the law an impossible task.
Removing the mandate of obtaining an FIR to get an abortion can also help reduce the number of teenagers who are burdened with children that they cannot take care of mentally or financially. This clause also increases the trauma faced by the child because of the turmoil that these incidents create within the family. Societal norms result in these minors being ostracised and judged. It is unacceptable to force a child to face the brunt of these consequences. Another way to possibly help improve this situation is to have counselling sessions with parents who come to court with their children, wherein they are taught how to deal with the situation at hand. Ostracization and humiliation of the child might create trauma or further worsen their mental well-being which has already been severely affected by the incident.
The mandate of reporting a case of pregnancy in minors is one that is still being debated upon. While it may be problematic for children in consensual relationships, it is necessary for those cases where the child may not know the grave nature of the incident that took place. In cases like the Muzaffarpur shelter case, out of 42 inmates, 34 were sexually abused and girls were also allegedly killed. In such instances where the child does not have anybody that they can confide in, making provisions like this is their only hope for having the perpetrators caught. Therefore, even though many believe that having such mandates may be harmful they are also beneficial for some.
The POCSO Act is one of the most important Acts for the children of the country. It protects them from the atrocity of sexual assault which is rampant in this country. However, there are some flaws in the implementation of this act which has been reflected upon. The flaws are fixable and one of the best ways to begin to change for the better is to push for the education of adults and children alike about these provisions. We believe in the power of knowing your rights, why shouldn’t the minors know the laws that protect them as well? It is of utmost importance to educate children about the signs of assault as it may happen to either them or their friends. It is also important for any child to have one person that they can consider to be their safe space. Not all children have healthy households, and hence it should also be taken up at schools because many children find their safe spaces in a teacher.
There are some provisions that can be changed in order to be inclusive of consensual cases and to filter out those of disgruntled parents who disapprove of the relationship between the adolescents. An increase in the sensitisation of the police force when it comes to these issues, along with providing them the tools to apply the appropriate sections of the Act, is necessary to make an impact on child sexual offences. With the necessary changes, the chances of reducing such crimes are very high. The issue of a minor taking part in consensual sexual intercourse at an age below 18 is a social question which need not be answered with the help of the criminal legal system.
Nandini Agarwal is a fourth-year law student at OP Jindal Global University pursuing BALLB. She had keen interest in the subjects of Alternate Dispute Resolution, Child Rights and Intellectual Property Rights along with art and anything animated.