Expanding the scope of POCSO
Protection of Children from Sexual Offences Act (POCSO)
- Over the last nine years, India has sought to “protect children from offences of sexual assault, sexual harassment and pornography” through the Protection of Children from Sexual Offences Act (POCSO).
- But POCSO has not been without controversy or deficiency.
- Recently, the Supreme Court had to injunct an interpretation of ‘skintoskin contact’ given by the Bombay High Court.
- Another fundamental defect of POCSO is its inability to deal with historical cases.
- With growing international jurisprudence around these issues, and in line with the UN Convention on the Rights of the Child, India must revise its legal and procedural methods to deal with historical child sexual abuse.
Historical child sexual abuse
- Historical abuse is not just confined to institutions but also includes intrafamilial abuse where it is difficult for the child to report the offence or offender at the earliest point in time.
- At first glance, this may seem to run counter to the established principle of criminal law: that every act of crime must be reported at the earliest and any delay in filing the complaint dilutes the efficacy of the prosecution’s case.
- Provisions in the Criminal Procedure Code (CrPC) prohibit judicial magistrates from taking cognizance of cases beyond a specific time period.
- Cases involving child sexual abuse not amounting to rape as defined under Section 376 of the Indian Penal Code (IPC), and prior to the enactment of POCSO in 2012, would presumably be classified under the lesser, and somewhat frivolous, offence of outraging the modesty of a woman (Section 354 of the IPC).
- As such, any reporting of an offence, under Section 354 of the IPC, more than three years after the date of incident would be barred by the CrPC.
- Such a scenario renders historical reporting of child sexual offences which took place before 2012 legally implausible. This presents an insurmountable legal barrier against the registration of historical child sexual offences which took place before 2012.
- While the limitation provisions were incorporated into the CrPC to avert delayed prosecution, the circumstances around child sexual abuse cannot and must not be viewed in the same manner as other criminal offences.
- Another theory, proposed by Roland C. Summit, Professor of Psychiatry, is the accommodation syndrome — where the child keeps the abuse as a secret because of the fear that no one will believe the abuse, which leads to accommodative behavior.
- As such, with growing research and empirical evidence pointing to behavior justifying delayed reporting, there is a need to amend the law to balance the rights of the victims and the accused.
- One of the major drawbacks of delayed reporting is the lack of evidence to advance prosecution. There would be less than 5% chance for gathering direct physical and medical evidence in such cases.
- India, in particular, suffers from a lack of procedural guidance as to how to prosecute historical cases of child sexual abuse. In contrast, the U.K. has issued detailed Guidelines on Prosecuting Cases of Child Sexual Abuse under the Sexual Offences Act of 2003 to assist the police in such cases.
Need to review the law
- In 2018, an online petition based on the plea of a child sexual abuse survivor gathered tremendous support.
- Consequently, the Union Ministry of Law and Justice, at the request of the then Ministery for Women and Child Development, clarified that no time limit shall apply for POCSO cases.
- Though this was a welcome clarification and would help strengthen the POCSO jurisprudence, it still fails to address the plight of children who were victims of sexual abuse before 2012.
- There is an urgent need to reform and revise our laws to account for various developments such as historical reporting of child sexual abuse.
- At the very least, the Union government must frame guidelines to direct effective and purposeful prosecution in cases which are not covered by the POCSO.
GS PAPER – III
How to improve corporate governance
- Over a time, Corporate governance gained importance and after every major scam, either in the stock market or companies with fraudulent intent/management.
- A paradigm shift on reporting requirements happened after SEBI accepted and implemented the Narayana Murthy Committee recommendations in 2004.
- There was a sea change in corporate governance requirements with respect to board, audit committee, shareholders disclosures and CEO/CFO certification on internal controls, and the reporting standards were significantly elevated.
- The Satyam Software scandal rocked the corporate world in 2009 and this prompted more recommendations for tightening corporate governance norms for listed companies.
- The Companies Act, 2013 elucidated the provisions on board processes, board meetings, independent directors, adherence to accounting standards, audit committee meetings, related party transactions and disclosures in financial statements.
- SEBI introduced the SEBI (Listing Obligations and Disclosure Requirements), 2015 (LODR) and thereafter has been continuously introducing new regulations by way of amendments.
- Added to these, the Institute of Company Secretaries of India issued secretarial standards on board and general meetings in July 2015.
- The latest regulation from SEBI is to re-christen business responsibility reporting as business responsibility and sustainability reporting with added responsibilities, reporting requirements and costs.
Beyond its mandate
- Of course, there is a heavy price to pay for corporate misconduct; nevertheless, regulations alone will not prevent scams from taking place.
- SEBI, expected to play a balanced role using its wide powers, appears to have gone beyond its mandate.
- There is no final authority to propound new laws than the parliamentarians, who in their wisdom passed the Companies Act, 2013 and various amendments subsequently.
- It will be obvious from a comparison of company law and LODR how SEBI, has increased the compliance burden of listed companies, and with every scam or opportunity this seems to be increasing.
- The continuous introduction of new regulations has exponentially increased compliance costs for listed companies and forced managements to spend a lot of time on them, leaving little time for business affairs that have become more challenging in these Covid times.
- Interpreting these new regulations are sometimes difficult due to lack of clarity.
- For instance, a company must immediately report when faced with a cyber/ransomware attack, has several implications. It may take several days or months for a company to assess any damage caused by such attacks and implement corrective actions.
- Corporate governance should be assessed based on a company’s track record over a period in areas such as overall compliance with the law with no major violations, being a honest taxpayer, indulging in ethical business transactions, fair treatment and non-discriminatory behaviour towards employees, fairness in dealing with customers and suppliers, societal and environmental consciousness
- To make life easier for companies known for good corporate governance and with no black marks over the years, SEBI can categorise and grade Corporate Companies. This will incentivize companies at the bottom of the ladder to move to the next grade to minimise compliance obligations and save costs.
- Similarly, rewarding companies that excel in corporate governance seldom have any impact on companies that have no qualms about violating norms.
- To evaluate excellence in corporate governance, SEBI can have a set of parameters. For example, by assessing transparency in board and shareholder processes, whether a company has directors from companies with strong corporate governance practices, the level of disclosures to shareholders and stock exchanges, obtaining feedback from independent directors, foreign institutional investors, minority and small shareholders, conducting independent surveys through neutral agencies, etc., can help SEBI form an opinion.
Understand the pain points
- Corporate governance cannot be guaranteed merely by introducing more regulations.
- SEBI has to work with industry on an ongoing basis to understand the pain points and mend the regulations in a manner that they are made practical and show the path towards good governance.
- SEBI can also educate companies through short-term courses free of cost to company or promoters, or directors, or executives, which could also go a long way in inculcating the principles of corporate governance.
- Obtaining feedback from industry captains/industry bodies at each and every step will ensure smooth transition when new regulations are proposed to be introduced.
- The Ministry of Corporate Affairs has been sensitive to industry views and the same can definitely be expected of SEBI too.