Neutrality, a method in delivering justice
The Protection of Children from Sexual Offences Act, 2012 (POCSO ACT), is a statutory law provided to protect children from sexual assaults, sexual harassment, and pornographic activities. This act lays down a principle on the State to undertake various measures to prevent any inducement, or coercion, or exploitative use of children for sexual purposes. The POCSO Act is a result of the theory of protective discrimination emerging from Art. 15 of the Indian Constitution which lays down that special provisions shall be made for women and children. The Judiciary of India has always considered the fact that there must be a separate procedure established by law for the cases having the inclusion of a child. The Juvenile Justice Board is a kind of an example, which deals with child offenders having a distinct methodology of legal procedures regarding the benefit and proper development of the child.
The POCSO Act has taken due care ensuring a way of investigation maintaining the dignity of the child as the prime objective and even during the trial, the public prosecutor or the defendant (as the case maybe) shall communicate the questions of examination-in-chief, cross-examination, and re-examination, prior to the Board and only after that it is put up to the child to protect him from character assassination. Similarly, all other traumatic procedures and incidents throughout the case have also been lightened by the act.
Despite having numerous mechanism, there is still a large number of offenders coming along every year. A study by the National Crime Record Bureau suggested that there is a rise in crime against children since 2009. The number of incidents went from 24,203 in 2009 to 92,172 in 2015. Further, this study showed that the maximum cases were related to trafficking of the children across the country.
This data gives rise to the fact that to protect the dignity of the child there shall be fulfilment of two essentials in the principle of law, those being;
- That the law shall be of such legal proceedings which focuses primarily on the protection of the victimization of the child, and
- That the law must provide for a stringent punishment which will minimize the chance of an increase in the offence in the near future.
Now, this act has managed to provide both the essentials sufficiently but still a rise in the offence indicates that it is time for providing more severe punishment for the offenders.
Due to this reason, a proposal is being under consideration by the Department of Women and Child Development to amend the laws under the POCSO Act to make it stricter in nature of their punishments so as to minimize the causes.
In doing so, the approach of gender neutrality has been adopted and it is proposed that the punishment for raping both boys and girls below the age of 12 years will attract capital punishment. This approach emerged from the ordinance signed by the President seeking to amend Section 376 of the Indian Penal Code to enhance the punishment of rape and gangrape of minor girls below 16 and 12 years of age.
The Ministry of Women and Child Welfare while supporting a petition stated that child sexual abuse is gender neutral, as provided by the act itself. The cases involving these offences is committed towards both male and female and it is highly incorrect to state that only female child survivors are present to claim justice in the society. Therefore, just like the ordinance, equal severe punishment shall be provided for the offenders in case of male victims as well.
The law has always strived to provide the society with gender neutral laws. Whether male or female, the justice delivery system shall be biased to no one. The law of a State is nothing but the interpretation of the society’s norms and traditions.
Hence, there are certain laws which seem to be inclined in the interest of a particular gender but shall not be considered gender bias because of its necessity for growth and development in the society.
Similarly, a need is generated for a more severe punishment towards a kind of an offence which is heinous, and it derogates and endangers the lives of children. Therefore, an amendment in the POCSO Act is necessary, which would strive to protect the children from sexual offences and if there is a crime committed in accordance to the enhanced act then at least a proportional punishment to the convict as a form of remedy to the child shall be available to provide.