News Update

Amendment to POCSO Rule, 2020 while replacing earlier 2012 rules

March 14, 2020

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void

The present article dwells upon provisions of amendment of POCSO Rules, 2020, which shows zero tolerance to child porn and made provision for compensation within 30 days. The POCSO rules became effective from March 9.

Background

After the amendments to the POSCO Act in August, 2019 the Supreme Court in September directed the Centre to follow the compensation structure specified by the National Legal Services Authority. In November, Supreme Court registrar Surinder S Rathi’s report on POCSO cases found that only 1% of minor sexual assault survivors get compensation and that 96% are not provided support by the persons to assist them during legal processes. Officials began drafting the rules in October.[1]The provision comes on the back of recent cases of child sexual abuse in child care institutions,in Muzaffarpur in Bihar and Deoria in UP.[2]

Key features:

The Ministry Of Women And Child Development of central government on 9^th March 2020 notified Protection of Children from Sexual Offences Rules, 2020 replacing the earlier 2012 Rules.[3]. The amendment to rules provide definition of the “District Child Protection Unit” “expert” “special educator” “Person familiar with the manner of communication of the child” “support person”[4]

The rule 3 of the POCSO Rules, 2020 provide for awareness generation and capacity building:

The central government or state government shall prepare age-appropriate educational material and curriculum for the children, which will include various aspects of personal safety and measures to protect physical and virtual identit, prevention and protection of sexual offence and report mechanism with inculcation of gender sensitivity, gender equality etc.
It further states that dissemination of suitable information by respective government. The responsibly is placed on the central government and every state government to take measures to spread awareness about possible risks and vulnerability etc. The responsibility is placed on the institution housing children or coming in regular contact with children to ensure that periodic training is organised for educating them on child safety and protection. The Central Government and every State Government shall provide periodic trainings for those who are coming in contact with children to sensitize them about child safety and protection and educate them regarding their responsibility under the Act.

Rule 4 made provision for Procedure regarding care and protection of child.––

Where any Special Juvenile Police Unit (“SJPU”) or the local police receives any information under sub-section (1) of section19 of the Act from any person including the child, the SJPU or local police receiving the report of such information shall forthwith disclose to the person making the report, his/her designation, the address and telephone number, the name, designation and contact details of the officer supervising the officer who received the information.
If the child helpline- 1098 received any information regarding the commission of the offence, then such information should be immediately reported to SJPU or Local police. Where an SJPU or the local police, as the case may be, receives information in respect of an offence that has been committed or attempted or is likely to be committed, the authority concerned shall, where applicable, ––
Proceed to record and register a First Information Report as per section 154 of CrPC and furnish a copy thereof free of cost to the person making such report as per Section 154(2) of CrPC.
In case if a child needs any medical care as described in section 19(5) of the Act or under rule, then arrangement must be made to the child to access such care, in accordance with the rule 6
take the child to the hospital for the medical examination as per section 27 of the Act;
ensure that the samples collected for forensic tests are sent to the forensic laboratory immediately;
inform the child and child’s parent or guardian or other person in whom the child has trust and confidence of the availability of support services including counselling, and assist them in contacting the persons who are responsible for providing these services and relief;
inform the child and child’s parent or guardian or other person in whom the child has trust and confidence as to the right of the child to legal advice and counsel and the right to be represented by a lawyer, in accordance with section 40 of the Act.
Where SJPU or the local police receives information under section19 (1) of the Act and has apprehension of the commission of the offence then such SJPU or the local police shall produce the child before the concerned child welfare committee within 24 hours from receipt of such report, with reason in writing as to whether the child is need of care and protection under section 19(5) of the Act with request of assessment.
Upon receipt of a report under sub-rule 3, the concerned CWC must proceed, in accordance with section 31(1) of the Juvenile Justice Act, 2015, to determine whether the child needs to be taken out of the custody of child’s family or shared household and placed in a children’s home or shelter home.
In determination under sub-rule 4, the CWC shall take into account any preference or opinion expressed by the child on the matter, with regard to the consideration listed in the rule.[5] Information of determination shall be made to affected child or child’s parents etc. The CWC, on receiving a report under section 19 (6) of the Act or on the basis of its assessment made under sub-rule (5) and with the consent of the child and child’s parent may provide a support person to render assistance to the child in all possible manner throughout the process of investigation and trial, and shall immediately inform the SJPU or Local Police about providing a support person to the child. Sub-rule 9 directed to maintain confidentiality of the information by the support person. Sub-rule 10 provide the SJPU or the local police shall, within 24 hours of making such assignment, inform the Special Court in writing, in case of support person is provided to the child. Sub-rule 11 made provision for service of support person.
Rule 5 made provision for Interpreters, translators, special educators, experts and support persons. Rule 6 provides for Medical aid and care, under which provision has been made to arrange to take such child to the nearest hospital or medical care facility center for emergency medical care, by an officer appointed under the rule. Provided that where an offence has been committed under sections 3, 5, 7 or 9 of the Act, the victim shall be referred to emergency medical care, which should be rendered to protect the privacy of the child, and in the presence of the parent or guardian or any other person in whom the child has trust and confidence. Rule 7 provides for Legal aid and assistance. Rule 8 made provision for Special relief.
Rule 9 provides for Compensation to victims. It provides such interim compensation paid to the child shall be adjusted against the final compensation, if any, after registration of FIR. The power is given to special court to award compensation at various stages. Where the Special Court, under sub-section (8) of section 33 of the Act read with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure, 1973 (2 of 1974) makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim. The compensation should be paid from by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure, 1973 or any other law for the time being in force, or, where such fund or scheme does not exist, by the State Government, which is to be paid within 30 days of receipt of such order.
Rule 10 provide for “Procedure for imposition of fine and payment” and rule 11 for “reporting of pornographic material involving a child”. Rule 12 provide for “monitoring of implementation of the Act”. The duty to implement the rules has been conferred on The National Commission for the Protection of Child Rights (hereafter referred to as “NCPCR”) or the State Commission for the Protection of Child Rights (hereafter referred to as “SCPCR”). Rule 13 states that The Protection of Children from Sexual Offences Rules, 2012 are hereby repealed, except as respects things done or omitted to be done before such repeal. The POCSO Rule, 2020 ends with FORM –A, which provide for “Entitlement of children who have suffered sexual abuse to receive information and services.”