The POCSO (The Protection of Children from Sexual Offence Act 2012) law has
been and can be misused to frame any person
My anxiety towards this law was initiated by the fact that Sant Shri Asaramji has been booked under the provisions of this law. I have studied this law and found that this is one of the most absurd, difficult to implement and a draconian law.
The Government says that it has brought this law on 20th June, 2012 as it has acceded on the 11th December, 1992 to the convention on the Rights of the child adopted by the General Assembly of the United Nations. What were governments doing for the last 20 years on this subject?I have objections to the following provisions of the POCSO Act which are not in conformity with natural justice and are biased towards the child or any other person who makes a complaint on behalf of child (accuser) but could be detrimental to the interest of an adult person against whom complaint has been filed (accused).
1. Under Section 22(1) of the POCSO Act, any person who make a false complaint or provides false information against any person in respect of an offence committed under section 3,5,7 and section 9 solely with the intention to humiliate, extort or threaten or defame him shall be punished with imprisonment for a time which may extend to six months or with fine or with both.
Now compare this with the punishment and fine on the person who has been implicated (accused) by the person mentioned in the above para (accuser).
The person who is implicated under section 3/section 5 of this Act shall be punished with imprisonment which shall not be less than 7 years/10years and may extend to imprisonment for life and shall also be liable to fine.
The person who is implicated under section 7/section 9 of this Act shall be punishedwith imprisonment which shall not be less than 3 years/5 years and may extend to5 years/7 years and shall also be liable to fine.
If one compares the punishment being given to the person who has been implicated and to the person who is falsely implicating that person, it is very clear that the person who is implicating (accuser) is at an advantageous place than the person who is implicated (accused).
If the person who make a false allegation is successful due to miscarriage of justice than he is free and even if it is proved that he has committed an offence of falsely implicatingthe otherperson then he will be behind bars maximum of 6 months. Is this fair by any means you may please think? The members of parliament and the courts should rethink over this before it does more damage to the society of ours?
2. Section 22 (2) provides that when a false complaint has been made or false information has been provided by a child no punishment shall be imposed on such a child.
How is this justified that no punishment is provided for the child who can ruin the life of an adult by making a false complaint. It is a known fact that child can be manipulated by his parents, guardians and others for their nefarious designs. The child can be used as a pawn by someone to defame anyone without any implications for him/her. This Act provides that his/her identity will be protected at all stages of the court proceedings, but this is not for the person who has been implicated. We all have heard the phrases “please do not talk like a child” or “why are you behaving like a child”. Which shows or proves the point that utterances of a child cannot be taken seriously and have to be taken with a pinch or handful of salt, depending on his/her behavior or character of that child. But in the case of “POCSO” law “The child is being made father of any adult and can threaten anyone with the help of this Act” and no one can do anything about it. Is this the intention of the law makers?
The section 19(7) provides that no person shall incur any liability civil or criminal, for giving information in good faith for the purpose of sub section(1). What happens where intention of the accuser is to ruin the reputation of the accused? The Act appears to be in favor of the accuser.
When a false complaint has been made or false information has been provided by a child or any complainant than proportionate punishment should be imposed on child or on such a complainant.
3. Section 29 provides where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 or 9 of this Act, the special court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
You may please place yourself in the shoes of the person who has been falsely implicated by some child and his parents .The court will presume you to be guilty of an offence you have not committed and onus is on you prove that you have not committed the offence. How justified is this situation? In most of other laws the onus is on the person who has alleged that something wrong has been committed on him/her to prove his/her case. This makes it very difficult for the person who has been alleged / accused to have committed any offence under the section 3,5,7 or 9 that he or she is innocent. In these cases generally there is no eye witness. It is a claim of a child against an adult which is denied by the adult. If there is any medical evidence in support of the child then it is different, if there is no medical evidence in support of the child the case will be decided on circumstantial evidences. This is where the difficulty arises as the courts have been made to presume that an offence has been committed which may not be the case in case of false allegations. I have been given to understand by legal experts that even though courts will presume that an offence has been committed it will be decided based on facts of the case. How will one arrive at a correct decision is very difficult preposition for the courts to decipher. This again proves the point that the person who is alleging is at an advantageous position than the person who has been alleged. How fair is this you may please think?
4. Section 30 of the Act provides that for any offence under the Act which requires culpable mental state on the part of the accused the special court shall presume the existence of such mental state but it shall be a defense
for the accused to prove beyond reasonable doubt the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
If a person has been falsely implicated by someone or if a person has committed an act of sexual assault for the first time, how can courts presume that such person is having culpable mind. How fair is this to the person accused?
5. Section 34(2) provides that the age of the child will be decided by the court and shall record its reasons for such determination. Section 34(3) provides that no order made by the special court shall be deemed to be invalid by any subsequent proof that the age of the person as determined by it under sub section (2) was not the correct age of the person.
This clearly shows that the child who is alleging that something wrong has happened with him or her may or may not be minor. What is difficult to comprehend is the fact that if court has come to a wrong conclusion on the age of a minor and it is proved that he or she is major even then the decision of the court will not be changed. This is against the principle of natural justice. Is this fair in any way to the accused, again it is advantage to the accuser that he or she can manipulate the age and can get away with it as there is no punishment for the child and if child is proved to be major it is not more than 6 months of imprisonment or with fine or both.
6. The provisions of section 3 to 13 (both inclusive) shall not apply in case of medical examination or medical treatment when such medical examination or treatment is done with the consent of parent or guardian.
Now let us assume day to day activity of a child, suppose he is injured while playing football or cricket in groin region, will the coach or elder person will have to wait for his parents to give consent before he/she does examination of the child private parts. How absurd is this law?
Another example a girl child is hit in her breast area again the elder person cannot do anything to help her as he or she has wait for parental consent to do such examination, otherwise he will be implicated under this Act and may end up in jail for 3-5 years.
If a girl child is dying and needs artificial respiration and revival, no malewill touch her as she has fainted and the person has to touch her breast area to revive her, than that person will have to wait,if her parents are not around to give consent for the same.
The law makers could have foreseen these situations of medical exigencies and could have entered the words “the provisions of section 3 to 13 of POCSO Act shall not apply in case of medical exigencies, in that case consent of parents is not required to save the life of any child”.
The above analysis of the provisions of POCSO Act has been done only to make you understand how absurd, difficult to implement and draconian this law is. Any child can implicate you if you spend some time of privacy with him or her and onus will be on you to prove your innocence. The court will take the accusation of the child at face value and if you are prosecuted by police the court will presume that you have committed the offence or abetted or attempted to commit the offence. The onus will be on you to prove your innocence.
The POCSO Act has been used in conspiratorial manner to malign the image of a national saint “Sant Shri Asaramji / Bapuji”. A saint who has national and international following of more than 5-6 crores. A saint who has spent untiringly more than 45 years of his life for the betterment of society.
His only fault was that he had spent some time with a so called minor girl, when her mother was sitting outside his room and her father at the gate of his rest house in Jodhpur. Even number of evidences have been produced before the court, which show that she was major and not a minor on the date of that incident. The medical report of the girl in question is normal, but she has accused Bapuji of teasing her, which Bapuji had vehemently denied. There is no proof of any wrong doing against Bapuji, even then he is in judicial custody for last one year. He is not even being given bail in this case of POCSO.I fail to understand the logic of not being given bail to a Saint of 75 years of age , he is not running from the country and has not in any way tempering evidences or threatening witnesses. Even if courts feel so, they can impound his passport and give him conditional bail with a fixed amount as surety.
In the light of the above I request each of you to try to correct the above mentioned anomalies in the POCSO Act by bringing it to the notice of your Members of Parliament (MP’s) and ask them to move amendments/changes to this Act. This is important so that no innocent person has to face the music of law, jail and courts for the offence which he/she has not committed. Also ask MP’s to do the amendments to this POCSO Act with retrospective effect so that the innocent persons who have been implicated unnecessarily also get relief from courts I am looking forward to a day when law makers or their relatives are booked under this obnoxious Act, then you will see how fast the hands of clock will move to obliterate this POCSO Act.
The changes in POCSO Act are important to bring the children back to the life of any individual, so that everyone gets justice and no one is placed at a disadvantageous position in comparison to the other.