5 YEARS OF POSCO: A REVIEW

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“Don’t let their life end, before it even begins”.

The above line on children abounds many emotions. We live in a society where sexual offences against children are increasing at an alarming and the bureaucrats cannot care less.

The present article attempts to highlight the growing problem of sexual offences against children in India and the challenges Indian Legal system faces after the advent of Protection of Children from Sexual Offences Act, 2012 with its main objectives being, to analyze the mainstream achievements of POCSO and the growing areas of concerns in its implementation primarily dealing with child marriages and consensual intimacy among adolescents.

It is appreciated that POCSO has introduced stringent punishments for the offenders including child friendly techniques of law implementation. The definition given to Penetrative Sexual Assault (Section 3), Aggravated Penetrative sexual assault (section 5) are indeed well demarcated. The most potent weapon is Section 29 which raises the presumption against the accused. The Act engulfs the role played by NGO’S, experts, police, and special courts and has clear inscribed procedure. It is laudable that the number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act.[1]

POCSO Act inscribes punishment for sexual offences with a child under the age of 18 years. Here the dual problem of adolescent intimacy and child marriage comes into play. It is submitted that sexual intercourse with wife above 15 years is not rape under IPC. Owing to this lacunae, Criminal amendment, 2013 inserted section 42A which gives the POCSO an overriding affect. But the courts have continued to give benefit of exception under IPC as seen by Yubusbhai Usmanbhai Shaikh v. State of Gujarat[2], Mujamil Abdul Sattar Mansuri v. State of Gujarat[3]. Thus, the child marriages prevalent under customary laws giving way to sexual intercourse with children comes with the purview of both IPC and POCSO. The present paper encourages the demarcations between the offences under two acts and clear application of section 42A is suggested as a way to curb the menace .The gap has now been filed by the Supreme Court judgment in 2017[4] where the scope of exception under section 375 IPC has been extended to 18 years.

The POSCO does not exercise jurisdiction to try rape cases of mentally challenged victims[5] and hence it is pertinent for the system to develop and inculcate the law in his regard.

It’s high time for the laws to change so as to change the system and eventually change the life of innocent children.

Because as they say “Change is the only hope”

[1] National crime records bureau 2016.

[2] Criminal Misc. Application No. 8290 of 2015

[3] Criminal Miscellaneous Application No.19811 of 2013

[4] Independent thought v. Union of India W.P.(CIVIL) NO.382 of 2013

[5] Ms. Eera v. State (Govt. of NCT of Delhi) & Anr. S.L.P. (Crl.) Nos. 2640-2642

of 2016.

 


About the Author:

Shiv Jindal (UILS, PU Campus)

Shiv Jindal (UILS, PU Campus)

The more the things change, the more they remain the same. Believes in commitment, loyalty and determination, but most importantly, believes in himself!

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