Criminalization of a non criminal - A reflection on POCSO Act, 2012

Dr Sapam Dilipkr *

The behavior of human being is regulated by two sets of norms - moral and legal.Legal norms are formulated by states and the same is enforced by the agencies of state whose primary function is maintenance of order in the society. States maintains order in society through the administration of justice.

The act of administration of criminal justice is carried out by the legal administrators who investigate, prosecute and punish offenders, who have been found guilty, in accordance with apparatus of the state - positive law that is not permanent unlike natural law.

The Protection of Child from Sexual Offences Act (POSCO), 2012 aims at addressing sexual offences against children through adequate penalties as an effective deterrence. The Act fulfills India’s international obligation under the Convention on the Rights of 1989 to prevent engagement of child in any sexual activity, the exploitative use of children in prostitution and pornographic performance.

The act of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, using of child for pornographic purposes, inter alia, are made punishable under POSCO Act, 2012. The law is so stringent that any person including media personnel shall be punishable if he or she fails to report commission of offences under the Act to the Special Juvenile Police Unit (SJPU) and local police.

The section seems to have evolved a new jurisprudence of criminalizing a non criminal in Indian judicial process, in the sense that a person who never commit wrongful act is brought under criminal jurisdiction of the court. The general notion of crime is an act or omission prohibited by law. Nonetheless, in order to constitute an act into a crime, actus reus must be accompanied by mens rea. It is ironical to criminalize a person whose act or omission is not accompanied with guilty mind.

The National Crime Records Bureau Report, 2016 shows that more than one lakh POSCO related cases are still pending in various courts of India. The increasing trend of POSCO related cases has also been observed in Manipur in the last couple of years. Government has designated all the Sessions Courts of the state as special POSCO court for dealing with such cases and disposing of such cases speedily. Recently, Special POSCO Court, Imphal West has convicted two adult offenders under POSCO Act.

However, the challenges of legal administrators in the effective implementation of the POSCO Act lies in handling cases of male children involved in elopement case. Plain interpretation of the Act attracts such child under the POSCO Act on the ground that child shall not be presumed to have legal capacity give consent.

In other words, consent given by a person who has not attained the age of 18 years is not valid in the eye of law. For instance, even if a girl who is yet to complete 18 years of age eloped voluntarily with a boy, she shall be a victim under POSCO Act. The boy shall be treated as perpetrator for the only reason that he is a male and has to face criminal legal proceeding assuming that he has committed an offence.

Dozens of such cases have been pending in the various Juvenile Justice Boards, which are ill equipped with for speedy disposition of cases, in Manipur. Such children do not really understand the provisions of POSCO Act which criminalises a boy for merely eloping a girl.

There are also cases were the provisions of law have been misused by the parents or guardians of the girl when the prospective child in laws family’s is poor. Law provides a space to create class in the society. The boy who has no “mens rea” at the time of performing the act is made liable to face criminal proceeding and subsequent punishment, which is against the criminal jurisprudence. No reasonable prudent man would be in favour of infliction of punishment to such child.

Child marriage was unknown in Manipur history. There was not a single case of such marriage in the entire pages of Manipur history. Nonetheless, early marriage, though not encouraged, was accepted as valid form of marriage in Manipur.

Sociologically speaking, marriage had been valid as long as the spouses attended the age of puberty. Having such tradition is one of the reasons to conceive that attainment of puberty naturally reach marriageable age of spouses. Parents and guardian do also have such perception because of having such custom.

It seems that such deep rooted legal and cultural practices were not fully taken into account and discussed at the time of the drafting of POSCO Act as prerequisite for social research prior to legislation anticipated by sociological school of jurisprudence.

On the other hand, child has no knowledge of stringent laws such as POSCO Act and Prohibition of Child Marriage Act, 2006 that prohibits elopement before attaining marriageable legal age. In such situation, many young boys are victim of newly enacted child welfare legislations by virtue of the legal maxim that ignorantia juris non excusat.

It is ridiculous to brought child within the jurisdiction of criminal law without providing a single space to learn and understand the elementary knowledge of laws which are inseparable to their childhood.

Positive laws are temporal and exist as long as society demands. If law is not able to mitigate social evil, it has to be changed in accordance with the need of the society. It is worth to mention here the criminal legal principle propounded by William Blackstone that “it is better that ten guilty persons escape than that one innocent suffers”.

It is ironical to prosecute a child because of ignorance of law and to criminalise child just for performing and act which is not accompanied by guilty mind. Hence, The POSCO Act needs to be amended immediately in consonance with best interest principle. Legal administrators and other stakeholders should take up measures to educate children about the provisions of law that are directly or indirectly related with them.