Monday Musing
[ Karyir Riba ]
The one kind of post unarguably common in everyone’s social media feed has to be the ones that are asking for help to look for missing minors.
The majority of these missing minors are non-APSTs. This leaves us to speculate as to what were these minors doing in these APST households? Where were they brought from, and for what purpose? Why do they run away, or do they get kidnapped/trafficked?
A bitter truth of our tribal society remains that we cannot do without househelps. And in our quest to acquire this luxury, we tend to overlook and violate many laws. Keeping minors as househelp is a serious offence and falls under the Child Labour Act.
There could be many reasons for households to hire minors as househelps. Because it has become so difficult to get one, could be that they had to hire whoever came their way, even if they had to kill their conscience. Another reason could be because children come at a cheaper salary than adults, and, to speak without sugarcoating, are easier to manoeuvre.
Needless to say, children working as househelps are often subjected to ill-treatment by their employers, and, as seen in the number of cases that have surfaced, they have been subjected to a lot more than that. Such children have seen atrocities inflicted on them, both physically and mentally, and many times sexually. Such children are more prone to being sexually abused.
As an employer, you could be a kind person, but it still is illegal to keep minors as househelps. Even if you think you are helping the child and his/her family, it is still illegal. You are not with the child at all times to protect him/her, while they are exposed to various people that might come and go to your house. You do not know who could be a possible predator, but the predator very well knows the hierarchy of the members in a household. Of course all children are at a risk of being seen as prey, but such minors are even more vulnerable to sexual predators.
The moment you have decided to keep a minor as a househelp, you have put yourself at a risk of being incarcerated. There are various sections under the Indian Penal Code, as well as the Child Labour Act, that punishes offenders. Moreover, if any child reports or has been found to be sexually abused, there is the stricter POCSO Act, which you will have to deal with.
Sexual offences against women and children have become so common that we must all have come across the word ‘POCSO’ at some point. But what is the POCSO Act exactly, and what does it do?
To understand the Act better, let us have a look in detail at what the Act is all about and what its implications are, with advocate Bahe Mikrow.
Q: What is the POCSO Act?
Mikrow: The Protection of Children from Sexual Offences (POCSO) Act of 2012 is a crucial legal framework in India, aimed at safeguarding children from sexual abuse and exploitation.
Q: What is the need for this Act?
Mikrow: The need for this Act is very authentic as there was no such special law which dealt with the protection of children aged less than 18 from offences like sexual harassment, sexual assault and child pornography. It is a gender-neutral law, which means that it protects both female and male victims.
The statute not only convicts individuals who commit sexual assault but also those who neglect to report the crime. There is no time limit for reporting abuse. It is evidentiary to maintain confidentiality of the victim’s identity under the POCSO Act. The Act was further reviewed and amended in 2019 to introduce more stringent punishment, including the death penalty, for committing sexual crimes on children, with a view to deter the perpetrators and prevent such crimes against children, and the government of India has also notified the POCSO Rules, 2020.
Rule 9 of the POCSO Rules provides that the special court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the needs of the child for relief or rehabilitation at any stage after registration of the first information report (FIR). Such interim compensation paid to the child shall be adjusted against the final compensation, if any.
Q: If convicted, what is the punishment as per the Act?
Mikrow: This is an Act to protect the children (both male and female) from offences of sexual assault, sexual harassment and pornography, and establishes special courts for trail of such offences. As per the Act a ‘child’ means any person below the age of 18 years.
Kind of sexual offences against children and punishment thereof:
Punishment for penetrative sexual assault: Not less than 20 years, but may extend to imprisonment for life and shall also be liable to fine and, if the child is below 16 years, then with imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment of life (means imprisonment for remainder of natural life of that person) and shall also be liable to fine.
Punishment for aggravated penetrative sexual assault: Shall be punished with rigorous imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life (means imprisonment for remainder of natural life of that person) and shall also be liable to fine or with death.
Sexual assault: What is sexual assault? Whoever, with sexual intent, touches the vagina/penis/anus or breast of the child or makes the child touch the vagina/penis/anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Punishment for sexual assault: Shall be punished with imprisonment of either description for a term which shall not be less than three years but may extend to five years and shall also be liable to fine.
Punishment for aggravated sexual assault: Shall be punished with imprisonment not less than five years but which may extend to seven years, and shall also be liable to fine.
Using child for pornographic purposes: Whoever uses a child in any form of media like print media, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material shall be punished with imprisonment for a term which shall not be less than five years and also fine and in the event of second or subsequent conviction shall not be less than seven years.
Punishment for storage of pornographic material involving child: Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority and with intention to share or transmit child pornography shall not be less than Rs 5,000 and for the subsequent offence Rs 10,000. Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner shall be punished which may extend to three years or with fine or with both and any person who stores possesses pornographic material in any form involving a child for commercial purpose shall be punished with not less than three years, which may extend to five years and for the subsequent offence not less than five years.
Abetment and attempt to commit an offence: A person abets an offence who instigates, engages, intentionally aids shall be punished with imprisonment of any description provided for the offence.
Q: What makes a person get booked under the Act?
Mikrow: If the person commits any of the aforementioned offence(s) against children (male or female) of age below 18 years.
Q: What happens to a person implicated under the Act?
Mickrow: When a person is booked under the POCSO Act, he/she may file bail application before the designated special court for his/her release, and, after hearing the public special public prosecutor, the special court may or may not grant bail, as it differs from case to case.
If a person is released on bail, then it is his/her duty to attend the full trail of the case and prove his innocence. Further, if the allegation against the person arrested is proved false – in that case the court may penalise the informant/complainant for giving false complaint or information under the POCSO Act, which may extend to one year and also fine.
But if the person is convicted in any of the aforementioned offence(s), he/she has to face punishment prescribed against such section(s), or else she/he may appeal before the high court against the judgment of the special court, if any.
Q: What are the precautions one can take to steer clear of the offence under the POCSO Act? Any advice for the general public?
Mikrow: As the POCSO Act is very stringent, one has to understand the gravity of the punishment under this Act, and thereby avoid himself/herself by not committing any of the acts/offences which are detailed above.
