Chronic delays in Pocso cases are eroding the future of India’s children

The Protection of Children from Sexual Offences (Pocso) Act, 2012, has been on India’s statute books for a decade. One of the primary purposes of the Act was to provide speedy justice to child victims of sexual offences in a child-friendly manner. The law provides that a Pocso trial should be completed within one year from the special court taking cognisance of the offence. It also states that the evidence of the victim should be recorded within 30 days of such cognisance. However, there is a considerable gap between what the law prescribes and ground reality.

A recent study analysing judicial data across 10 years (2012-21) and 400,000 cases in 28 states and Union Territories conducted by this author (and others) shows that the proportion of Pocso cases that takes more than three years to be disposed of is increasing year-on-year, and Delhi has the highest average case length among the states studied (three years and six months). It also found that in a typical Pocso trial, over six months are spent at the evidence stage alone.

Delays in Pocso cases adversely impact both the accused (since getting bail in such cases can be extremely difficult) and the child victims (who are re-traumatised by a lengthy trial). Furthermore, child victims are prevented from moving past the traumatic incident(s) of sexual violence since they have to recount the details at length while giving evidence before the courts.

Delays might also affect the outcome of a case and lead to higher acquittals since witnesses may forget details required to prove the prosecution’s case beyond a reasonable doubt, the standard of proof in criminal cases. Our study shows that, on average, acquittals in Pocso cases are three times more than convictions. Though having a large proportion of convictions should not be the aim of any law, extremely high acquittals can signal that the law may not be working effectively.

So why are acquittals so high in Pocso cases? There is no straitjacket answer. Though lapses in investigation and prosecution are one piece of this puzzle, three other factors are at play that relate to how the law, and the ecosystem it operates in, are designed. The first relates to the fact that the Pocso Act defines a child as someone below 18 and sets 18 as the age of consent. By raising the age of consent from 16 to 18, the law unintentionally criminalises consensual romantic relationships between minors. There is a higher probability of acquittal due to the victims turning hostile.

The second factor relates to mandatory minimum sentences that give little discretion to judges at the time of sentencing. In cases where the judges believe that the mandatory minimum sentence prescribed by the law is unduly harsh or not in the interest of justice for the child victim, they may divert the cases from such provisions by acquitting the accused. The third factor relates to the complex design of the Pocso Act’s ecosystem. For example, the law is as much about putting in place a childfriendly justice-delivery system as it is about establishing fast-track courts. As a result, many actors need to interact with each other to ensure that the system functions effectively. Therefore, in addition to understanding their roles and responsibilities within the system, they need to understand the roles performed by other actors. Resultantly, greater coordination becomes vital, so proper training of all stakeholders is crucial. Unfortunately, training key actors within the Pocso ecosystem (for instance, the police, Pocso judges, special public prosecutors, and members of child welfare committees and juvenile justice boards) happens in silos.

A two-fold approach is needed to address these issues. One, there is a need for the legislature to rethink the age of consent and mandatory minimum sentences as they seem to be hindering the implementation of the Pocso Act in its true spirit. Two, we need to conduct periodic integrated capacity-building programmes where actors are brought together to improve synergies within the system.

Third, any law that protects children should secure their best interests. That is the least that India’s children deserve.