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Dated Nov 22, 2022

Judging A Decade Of POCSO

Protecting our children will require greater cross-state learning and improving judicial capacities

On November 14, 2022, the POCSO Act completed a decade of being on the statute books in India. When enacted, it marked the culmination of years of campaigning for a dedicated domestic legislation to deal with sexual offences against children. Ten years is a reasonable period of time to look back and reflect on how far it has been able to meet the objectives it set out to achieve.

Objectives of the law

The need for a dedicated law to deal with sexual offences against children emanated from a realisation that, by failing to account for the specific needs of child victims, the criminal justice system's response to such cases lacked the sensitivity required.

To address this concern, the POCSO Act, in addition to providing punishment for sexual offences against children, provided certain safeguards to make children's interaction with the criminal justice system 'child-friendly'.

For instance, the Act specifically laid down that the child victim should not see the accused at the time of testifying and that the trial be held in camera. Further, it specifically provided that the evidence of a child shall be recorded within a period of 30 days of the Special Court taking cognisance of the offence and reasons for delay, if any, be recorded.

Additionally, it required that the Special Court complete the trial, as far as possible, within a period of one year from the date of cognisance.

The POCSO Rules, 2020 also made a provision for appointment of support persons for victims to render assistance to them through the process of investigation and trial.

The law, therefore, was as much about providing effective justice to child victims as it was about protecting vulnerable victims at every stage of their interaction with the criminal justice system.

Hurdles in implementation

Implementing a new law in a vast country like India was never going to be an easy task. From the slow pace of designation of Special Courts to delay in investigation and filing of chargesheets to non-appointment of support persons for child victims in most cases, the Act has encountered hurdles at all stages of its implementation. Though the child protection ecosystem is complex and involves the interplay of multiple actors, when it comes to courts, the delay in disposal of POCSO cases presents one of the biggest challenges in meeting the Act's objectives.

Our study of case metadata for over 2.3 lakh POCSO cases collected from eCourts (representing 486 districts) found huge variation in the average case length (ie, the number of days it takes to dispose of a case) across states. For instance, for cases ending in acquittal, while Chandigarh takes about six months (on average) to dispose of a case, Himachal Pradesh takes about two years and 10 months.

Also, for cases ending in conviction, the average case length ranges from about 10 months in Chandigarh to over three years and nine months in Delhi.

Slow disposals not only impact the accused who might be incarcerated during the duration of the trial but also negatively impact the child victim who might be retraumatised by being forced to relive the details of an incident of sexual violence years later. Further, slow disposals may also have a bearing on the outcome of the trial. As more time passes, witnesses might start to forget important details pertaining to the case.

Lessons learnt

While massive delays in disposal of cases might lead one to conclude that the Act has failed to achieve its objective of fast-track justice for child victims, that would be a hasty conclusion at best.

Though the Act's implementation is far from perfect, the fact remains that the criminal justice system is more sensitive towards child victims today than it was a decade ago.

Further, the varying performance of states in the time they take to dispose of POCSO cases goes on to show that there is a ray of hope.

Since some states are clearly performing better than others, a study of what the better-performing states are doing right can help evolve certain best practices that can be adopted by other states.

At the same time, policy interventions to improve the functioning of the Act must be tailored to meet the specific capacity constraints faced by different states and a one-size-fits-all approach is best avoided.

We believe that strong data systems and digital platforms can help transfer learning across states and contextualise the best practices to the local courts.

Going forward, the government and the judiciary need to assess the gaps in implementation and strengthen the capacity of the various actors to mee the objectives of the Act.

The writers are co-authors of a recently released repom titled, A Decade of POCSO: Developments, Challenges and Insights from Judicial Data'