The recent split verdict by a 2-judge bench of the Supreme Court on the applicability of Section 155(2) of the Code of Criminal Procedure vis-a-vis Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) has brought issues related to child sexual abuse and child rights back into focus. This ruling attempts to navigate the intersection of the right to investigate non-cognizable offenses and the duty to protect the identity of child victims of sexual crimes.
The Problem: Child Sexual Abuse
Child sexual abuse is a complex issue that affects children’s physical safety, mental health, well-being, and behaviour. Further complications arise due to the surge of digital technologies, leading to amplified abuse and exploitation. Disturbingly, new forms of online child abuse such as bullying, harassment and child pornography have emerged, compromising the security and development of children.
Inefficacy of Existing Legislation
Despite the enactment of the Protection of Children against Sexual Offences Act 2012 (POCSO Act), the initiative falls short in curbing sexual abuse against children effectively. The conviction rate under the POCSO act averages only about 32% over the past 5 years, with 90% of cases pending. Judicial delay further exacerbates the problem, as seen in the Kathua Rape case which took 16 months for the main accused to be convicted, despite the POCSO Act’s stipulation of a one-year trial and conviction process. Moreover, challenges related to age-determination, especially laws focusing on biological age over mental age, render the act unfriendly to children.
Efforts Towards Child Protection
Several initiatives aim at preventing child abuse and safeguarding children’s rights. These include the Child Abuse Prevention and Investigation Unit, Beti Bachao, Beti Padhao campaign, Juvenile Justice Act/Care and Protection Act, 2000, Child Marriage Prohibition Act (2006), and the Child Labour Prohibition and Regulation Act, 2016.
Constitutional Safeguards for Children
The constitution accords every child the right to live with dignity (Article 21), have personal liberty (Article 21), enjoy privacy (Article 21), receive equality (Article 14) and protection against discrimination (Article 15), and safeguard against exploitation (Article 23 & 24). Furthermore, Article 21 A makes free and compulsory elementary education a right for all children aged between 6-14. Article 39(f) of The Directive Principles of State Policy obliges the State to ensure children develop healthily in conditions of freedom and dignity and are protected against exploitation and abandonment.
Path Ahead
A pressing necessity is to prioritize prevention activities against abuse and create secure online environments for children. A comprehensive outreach system should be formulated, drawing upon the resources of parents, schools, communities, Non-governmental Organizations (NGOs), local governments, police, and lawyers. Only then can the legal framework, policies, national strategies, and standards be effectively implemented.
Understanding Child Rights as per the United Nations Convention on the Rights of the Child
Under the United Nations Convention on the Rights of the Child, various rights are conferred upon children. These include the right to development, the right to expression, and the right to recreation. All these rights are inherent to every child, without exceptions.
