Save Children from Sexual Predators
Save Children from Sexual Predators
A recent decision of the Division Bench of the High Court of Gujarat in Criminal Appeal No. 1153 of 2017, decided on 13-06-2018, is verily a blow for justice in that the sentence imposed by the trial Court was enhanced by the High Court. Anyone with rudimentary information respecting the increasing incidence of sexual crimes against minors would have a feeling that such crimes, which appear to be on the ascending frequency need to be curbed with a heavy hand, so as to ensure that the safety of children is not endangered by sex perverts. In fact, the Protection of Children from Sexual Offences Act, 2012 [‘POCSO Act’ in short] , has been enacted with a view to acting as a deterrent to such crimes. The objective of the POCSO Act, as gathered from the preamble is expressed as ... And whereas sexual exploitation and abuse of children are heinous crimes and need to be addressed, ...’, which is a highly laudable objective.
The POCSO Act is not in derogation of any other law: The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.
In the case of Independent Thought, the Hon'ble Supreme Court has observed that securing the best interest of the child is an obligation cast upon the Government of India having acceded to the Convention on the Rights of the Child. It is further observed the preamble to the POCSO Act also recognizes that it is imperative that the law should operate "in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy, physical, emotional, intellectual and social development of the child”. It cannot be disputed that keeping in view the mounting crimes against children, regardless of the sex of the victim, Parliament enacted the Protection of Children from Sexual Offences Act, 2012. That Statement of Objects and Reasons of this Act reads as under :–
"STATEMENT OF OBJECTS AND REASONS” :–
1. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.
2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.
3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.
Section 43: Public Awareness About Act: The Central Government and every State Government, shall take all measures to ensure that :–
(a) the provisions of this Act are given wide publicity through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act;
(b) the officers of the Central Government and the State Governments and other concerned persons (including the Police Officers) are imparted periodic training on the matters relating to the implementation of the provisions of the Act.
It is in this perspective that the Courts, which have to deal with such crimes, need to be sensitive and ensure that once the crime is proved, no leniency has to be shown and the punishment has necessarily to be deterrent and exemplary. The decision in Criminal Appeal No. 1153 of 2017 has taken care of this aspect and therefore only, allowed the appeal for enhancement of the sentence from seven years to ten years.
A recent amendment in the Protection of Children from Sexual Offences Act, 2012, enhances sentence even of death in certain situations. While the infliction of death sentence would not have to be considered in every case under the said Act, what is pertinent is that the judiciary at all levels needs to show sensitivity in all such matters. It would have been proper if the trial Court had imposed the sentence of 10 years. But that was not done, even though there is no room for any misplaced sympathy or leniency at all. In any case, the State did file an appeal for enhancement of the sentence, which was decided by a well considered judgment. It is essential that the message percolates to all the learned members of the judiciary to ensure that the maximum sentence needs to be awarded in case of such heinous crimes, so that the sex perverts are deterred from committing such crimes. No leeway deserves to be granted to those, who have the temerity to commit such gory crimes. If the judgment has such deterrent effect, it would be a blow in the right direction. Kudos to the High Court !
Author - Save Children from Sexual Predators, By J. T. Trivedi, Advocate - Article Published in GLH Journal Soponsored by Bar Council Gujarat - Regent is Authorised Publisher of E-Journal GLHEL THE-LAWS