POCSO:

Recently, the Ministry of Women and Child Development has informed the Lok Sabha that
the Protection of Children from Sexual Offenses (POCSO) Act, 2012, is one of the crucial
legislations enacted by the Government to protect children from Sexual Abuse.
What is the POCSO Act?

About:
● The POCSO Act came into effect on 14th November 2012 which was enacted in
consequence of India’s ratification of the UN Convention on the Rights of the Child in
1992.
● This special law aims to address offences of sexual exploitation and sexual abuse of
children, which were either not specifically defined or inadequately penalised.
● The Act defines a child as any person below the age of 18 years. The Act provides
punishment as per the gravity of the offence.
● The Act was further reviewed and amended in 2019 to Introduce more stringent
punishment including the death penalty for Committing sexual crimes on children, to
deter the perpetrators & prevent such crimes against children.
● The Government of India has also notified the POCSO Rules, 2020.

Features:
● Gender-Neutral Nature:
The Act recognizes that both girls and boys can be victims of sexual abuse and that
such abuse is a crime regardless of the gender of the victim.
This is in line with the principle that all children have the right to protection from
sexual abuse and exploitation and that laws should not discriminate based on gender.
● Ease in Reporting Cases: There is sufficient general awareness now to report cases of
sexual exploitation of children not only by individuals but also by institutions as
non-reporting has been made a specific offence under the POCSO Act. This has made
it comparatively difficult to hide offences against children.
● Explicit Definition of Terms: The storage of child pornography material has been
made a new Offence. Further, the offence of ‘sexual assault’ has been defined in
explicit terms (with increased minimum punishment) unlike an abstract definition of
‘outraging modesty of a woman’ in the Indian Penal Code.

POCSO Rules 2020:

● Interim Compensation and Special Relief:
Rule 9 of the POCSO Rules allows the Special Court to order interim compensation
for the child's needs related to relief or rehabilitation after the FIR's registration. This
compensation is adjusted against the final compensation, if any.
● Immediate Payment of Special Relief:
Under the POCSO Rules, the Child Welfare Committee (CWC) may recommend
immediate payment for essential needs like food, clothes, and transportation, using
funds from the District Legal Services Authority (DLSA), the District Child
 Protection Unit (DCPU), or funds maintained under the Juvenile Justice Act 2015.
The payment must be made within a week of receiving the CWC's recommendation.
● Support Person for the Child:
The POCSO Rules empower the CWC to provide a support person to assist the child
throughout the investigation and trial process. The support person is responsible for
ensuring the child's best interests, including physical, emotional, and mental
well-being, access to medical care, counselling, and education. They also inform the
child and their parents or guardians about court proceedings and developments related
to the case.

Note: In furtherance to the Criminal Law (Amendment) Act, 2018, Department of Justice has
started a Centrally Sponsored Scheme in October 2019 for setting up a total of 1023 Fast
Track Special Courts (FTSCs) (including 389 exclusive POCSO Courts) Across the country.
▪ As of May 31, 2023, a total of 758 FTSCs including 412 Exclusive POCSO (e-POCSO)
Courts are functional in 29 States/UTs across the country.

What are the Issues and Challenges with the POCSO Act?
● Low Representation of Women in the Police Force: The POCSO Act provides for
recording the statement of the affected child by a woman sub-inspector at the child’s
residence or place of choice. But it is practically impossible to comply with this
provision when the number of women in the police force is just 10%, and many police
stations hardly have women staff.
● Lapses in the Investigation: Though there is a provision to record statements using
audio-video means, however, there are still reports of lapses in the investigation and
preservation of crime scenes in some cases, In Shafhi Mohammad vs The State of
Himachal Pradesh (2018), the Supreme Court held in cases of heinous crimes, the
investigating officer must photograph and videograph the scene of crime and to
preserve the same as evidence.
● No Examination by Judicial Magistrates: The law requires the recording of the
statement of the prosecutor by a judicial magistrate. This is done in most cases, but
sometimes judicial magistrates are not called for cross-examination. In such a
scenario, such statements get nullified.
● Issue of Age Determination: Though the age determination of a juvenile delinquent is
guided by the Juvenile Justice (Care and Protection of Children) Act 2015 no such
provision exists under the POCSO Act for juvenile victims. In the Jarnail Singh vs
State of Haryana (2013) case, the SC held that the given statutory provision should
also be the basis to help determine age even for a child who is a victim of crime.
However, in the absence of any change in the law or even specific directions, the
investigating officers (IOs) continue to rely on the date of birth recorded in school
admission-withdrawal registers.
● Delays in the Filing of Charges: As per the POCSO Act, the investigation of a case
under the act is to be completed within one month from the date of the commission of
the offence, or the date of the reporting of the offence.
 ● However, in practice, the completion of the investigation often takes longer than one
month due to various reasons such as lack of adequate resources, delays in obtaining
forensic evidence, or the complexity of the case.
● No Conditions to Prove Recent Intercourse: Courts are required to presume that the
accused committed the offence under the POCSO Act. The POCSO Act does not
impose any conditions on the prosecution, contrary to the Indian Evidence Act, which
requires the prosecution to establish recent intercourse, as well as the consent of the
prosecutrix. However, it has been observed that even after the minor age of the victim
is proven, no such presumption is taken up by the court during trial. Under such
circumstances, the expected increase in the conviction rate is unlikely to be achieved.

Key features of the POCSO Act include:

1. **Definition of Sexual Offenses:** The act comprehensively defines various forms of
sexual offences against children, including but not limited to, penetrative and non-penetrative
sexual assault, sexual harassment, and using a child for pornographic purposes.
2. **Age of Consent:** The POCSO Act does not rely on the age of consent and any sexual
activity with a child under the age of 18 is considered an offence, irrespective of whether the
child has given consent.
3. **Special Courts:** The act mandates the establishment of special courts for the speedy
trial of cases related to child sexual abuse. These courts are expected to ensure a
child-friendly atmosphere during the legal proceedings.
4. **Recording of the Statement:** The child’s statement is to be recorded by a magistrate in
the presence of a child psychologist or a social worker. This ensures that the child is
comfortable and can express themselves freely without fear.
5. **Presumption of Guilt:** The act presumes the accused to be guilty until proven
innocent, shifting the burden of proof onto the accused. This provision is intended to protect
the child from unnecessary trauma during the legal process.
6. **Punishments and Penalties:** The act prescribes stringent punishments for offenders,
including imprisonment for varying durations and fines. The severity of the punishment
depends on the nature and gravity of the offence.
7. **Use of Child-Friendly Language:** The act is written in a manner that is child-friendly
and takes into consideration the sensitivity of the issue. It aims to make legal procedures less
intimidating for child victims.
8. **Reporting Obligations:** The act places an obligation on individuals, such as doctors,
teachers, and others who come across cases of child sexual abuse, to report such incidents to
the authorities. Failure to report can result in penalties.

The Mental Healthcare Act:

The Mental Healthcare Act 2017 is legislation that aims to provide access to mental
healthcare services for all, protect the rights of persons with mental illness, and
establish a legal framework for the treatment and care of persons with mental illness.

Here are eight salient features of the Mental Healthcare Act 2017:
1. Right to access mental healthcare services: Every person has the right to access mental
healthcare services and treatment.
2. Advance Directive: Individuals can provide directions for their preferred treatment in case
of future mental illness.
3. Decriminalization: A suicide attempt is no longer considered a criminal offence under the
Mental Healthcare Act.
4. Mental Health Review Commission: A body is set up to review the functioning of mental
health establishments and protect the rights of persons with mental illness.
5. Mental Health Establishments: Registration of mental health establishments to ensure
quality and accountability in mental healthcare services.
6. Prohibition of electro-convulsive therapy (ECT) without anaesthesia: It cannot be given
without the use of muscle relaxants and anaesthesia.
7. Establishment of the Central Mental Health Authority: A regulatory body is set up to
develop policies and programs for mental health promotion.
8. Punishment for non-compliance: Any person or establishment found to be non-compliant
with the provisions of the Act may be punished.

However, there are multiple challenges with the implementation of the act
1. Lack of Awareness: Many people are still unaware of their rights under the Mental
Healthcare Act.
2. Limited Resources: Mental healthcare facilities, staff, and resources are inadequate and
underfunded. For instance, India has only 0.29 psychiatrists per 100,000 population as per the
World Health Organization. "Mental Health Atlas 2017.”
3. Mental illness is still stigmatized in many cultures, with 47% believing it should be kept in
isolation. (The Live Love Laugh Foundation. "How India Perceives Mental Health.")
4. Traditional beliefs and practices may conflict with modern mental healthcare practices.
5. Inadequate Training: Healthcare professionals may not have adequate training in the
diagnosis and treatment of mental illness. For example, a study published in the Indian
Journal of Psychological Medicine in 2020 found that only 21% of medical colleges provided
adequate training in psychiatry.
6. Limited Accessibility: Marginalized groups, including women, those living in rural
regions, and members of the LGBTQ+ community, may not have access to mental healthcare
services. Due to a lack of funding and poor infrastructure, rural populations had limited
access to mental healthcare services.
7. Weak Monitoring and Oversight: The Mental Health Review Commission has not been
established in many states, which weakens oversight of mental healthcare facilities. For
example, as of 2019, only 18 of India's 29 states had set up the Commission
8. Resistance to Change: Resistance to change can be a barrier to the implementation of the
Act. For instance, mental healthcare professionals may resist changes in treatment approaches
or the adoption of modern technology in mental healthcare.

However, despite challenges, the act is crucial in certain respects�

1. Suicide decriminalization: The legalization of suicide under the Act has decreased stigma
and widened access to mental healthcare.
2. Advance Directives: The availability of advance directives has given people more
autonomy to decide how their mental health will be treated.
3. ECT without anaesthetic is prohibited by the Act, which has enhanced patient safety and
decreased the risk of injury to patients. For instance, research published in the Indian Journal
of Psychiatry in India indicated that the use of ECT without anaesthetic significantly
decreased after the Act was put into effect.
4. The Central Mental Health Authority has created policies and initiatives to advance mental
health in India. For instance, under the Ministry of Health and Family Welfare, the Authority
has started several efforts to enhance mental health services and awareness in India.
5. Rights of those with mental illness: The Act has strengthened these individuals' rights and
eliminated prejudice.
6. Community-based mental healthcare: The Act has increased attention on these programs,
which are more readily available and less expensive.

Way Forward
▪ The government should provide adequate resources such as funding and personnel to
investigating agencies handling POCSO cases. This will help to ensure that investigations are
conducted in a timely and efficient manner.
▪ Investigating officers should be provided with proper training on the handling of POCSO
cases. This can include training on the proper techniques for collecting and preserving
evidence, interviewing child victims and witnesses, and the legal requirements of the POCSO
Act.
▪ Setting up special courts for POCSO cases can help to ensure that cases are handled
promptly and efficiently. This will also help to speed up the trial process, which can be
important for the victim and their family. The Protection of Children from Sexual Offences
(POCSO) Act, 2012 is an Indian legal framework aimed at addressing and preventing sexual
offences against children. The act was enacted to provide a robust legal mechanism for the
protection of children from sexual abuse, exploitation, and harassment.

Case Study: Empowering a Survivor through the POCSO Act and Child
Counselling
● Background: In a suburban area, 13-year-old Riya (name changed for confidentiality)
was sexually abused by a close family member. The incident came to light when
Riya's school counsellor noticed a sudden change in her behaviour and reported it to
the Child Welfare Committee (CWC). The authorities promptly intervened, initiating
a case under the Protection of Children from Sexual Offences (POCSO) Act.
● Legal Intervention: The CWC, following the protocols outlined in the POCSO Act,
ensured that Riya's statement was recorded in a child-friendly environment with the
assistance of a trained psychologist. The act's provisions were implemented to
protect Riya during legal proceedings, and the case was fast-tracked in a special court.
● Child Counseling: Simultaneously, recognizing the need for psychological support,
CWC collaborated with a child counselling centre to provide Riya with counselling
 services. A child psychologist, well-versed in trauma-focused therapy, was assigned
to work closely with Riya.
Key Stages in Counseling:
● Assessment and Establishing Trust: The counsellor began with a thorough assessment
to understand Riya's emotional state, coping mechanisms, and any existing support
systems. Establishing trust was crucial for Riya to feel safe in sharing her experiences.
● Psychoeducation: Given Riya's age, the counsellor provided age-appropriate
information about the healing process, legal proceedings, and the support available to
her. Psychoeducation is aimed at helping Riya make informed decisions and regain a
sense of control.
● Trauma-Focused Therapy: Using evidence-based trauma-focused therapy techniques,
the counsellor helped Riya process the trauma she experienced. Techniques such as
narrative therapy and art-based interventions were utilized to facilitate expression
without overwhelming her.
● Support Network Building: Recognizing the importance of a support system, the
counsellor worked with Riya to identify and strengthen her existing relationships with
friends, family, and schoolmates. Educating them about Riya's needs and
trauma-informed care was essential in building a supportive environment.
● Empowerment and Resilience Building: The counsellor focused on empowering Riya
by highlighting her strengths, resilience, and ability to overcome challenges. Setting
achievable goals and celebrating small victories played a significant role in boosting
Riya's self-esteem.
● Outcomes: Through a coordinated effort between legal intervention under the POCSO
Act and child counselling services, Riya demonstrated significant progress. The legal
process provided justice, while the counselling sessions equipped Riya with the tools
to cope, heal, and reintegrate into a healthy, supportive environment. This case study
underscores the importance of a comprehensive approach involving legal measures
and child counselling services to empower survivors of child sexual abuse, adhering
to the principles outlined in the POCSO Act.