Viral video of alleged rape victim raises questions about awareness of POCSO Act

In a shocking video that went viral across social media platforms recently, a 12-year-old girl in Uttar Pradesh’s Kannauj district could be seen lying in a garbage dump, begging the bystanders for help while they continued recording her videos.

The minor was allegedly raped and severely injured and later thrown in the garbage dump where she continued requesting the men surrounding her to take her to a nearby hospital. The video shows men trying to click her pictures and videos from different angles.

Later, the minor was picked up by a senior police officer who rushed her to the district hospital where she was admitted for treatment.

According to the minor’s family, she had gone out to buy a piggy bank in the afternoon. When she did not return home till the evening, her parents, as per reports, mounted a search for her. The family alleged that the minor was gang raped.

The police are yet to ascertain whether the minor was raped. However, the incident raises questions on how sensitized people in India are to the provisions against rapes of children and the child’s right to privacy.

Crimes against children increased in India by 16.2% between 2020 and 2021, according to the latest National Crime Records Bureau (NCRB) data. There were just under 1.5 lakh cases of crimes against children registered in 2020 across all states and Union Territories. This includes child sexual abuse, abduction, murder, child marriage among other crimes. The total crime rate went up from 28.9% in 2020 to 33.6% in 2021.

To protect children from sexual abuse and to give justice to the victims of child sexual abuse, the Indian government introduced the Protection of Children from Sexual Offences Act (POCSO) Act in 2012. This gender-neutral law works on rehabilitating such children so that they can move on with their lives.

As per the law, a person is said to commit 'penetrative sexual assault' if they penetrate their genitals, mouth or any other object or part of the body, to any extent, into the vagina, mouth, urethra, or anus of a child or makes the child to do so with them or any other person.

“Any sexual activity whether it involves penetration, or does not involve penetration, touch or no touch, including pornography are recognised as sexual offences against children,” said Bharti Ali Haq, the executive director of Haq centre for child rights, a non-profit protecting rights of children.

Section 23 of the POCSO Act makes the disclosure of the identity of the child a punishable offence with imprisonment of either description for a period which shall not be less than six months, but which may extend to one year or with fine or with both. It applies equally to media reports.

“If the child must come to court, their testimony should be recorded in such a way that the child doesn’t have to face the accused because in a lot of cases as soon as the victims see the accused, they get very disturbed. That affects their evidence and testimony,” said Haq.

In February this year, new rules were drafted after amendments to the POCSO Act as per which minor sexual assault survivors could be given immediate compensation within a week their cases are taken up in special POCSO Act court.

Haq said that if a child who was sexually abused needs medical attention or counselling, there is a provision for providing them special relief, a small amount to meet the immediate needs of the child including the medical tests.

“Then is interim compensation to meet the other needs including admission in a school, and then a final compensation at the time of the closing of the case. So, when the trial is over, the child has the right to final compensation,” she said.

In a case like this one where whether the child was sexually abused is not confirmed, Haq said the people recording the videos should still be held accountable in the court of law. “Even if the child was not raped, the role of people should have been to inform police, call an ambulance and ensure that the child received immediate medical attention,” she said. “The fact that the people were enjoying the situation actually amounts to cruelty.”

“The provisions of breach of privacy and confidentiality can be used to book these people who make these videos and circulate such videos. These provisions are in POCSO Act as well as Juvenile Justice Act,” she added.

The Juvenile Justice Act consolidates and amends the law relating to children alleged and found to conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation.

Shakir Shabir, an advocate in Supreme Court of India said that the POCSO Act was made to safeguard the children who are victims of sexual harassment or sexual crimes through law. “There is absolutely no sensitisation amongst people in India. They do not understand POCSO Act. And most of the times it is used by people to settle their personal scores including during family disputes,” he said.

Shabir said that what people did in the minor’s case is a civil wrong and whether the child was raped is irrelevant. “The women and child rights committee has to take a cognizance of this issue,” he said, adding that it is government’s responsibility to aware people about the right to privacy of children.

“When people do not understand this special legislation, they go on and make flagrant violations of the same which is not something that fulfils the purpose of this legislation,” he said, adding, “The government has to work vehemently to make people aware and fulfil the role of the legislation.”