Manipur Alliance for Child Rights: POCSO Act vis-a-vis Police and Doctors

Sunday, July 13, 2014

POCSO Act vis-a-vis Police and Doctors

http://ifp.co.in/page/items/22120/pocso-act-vis-a-vis-police-and-doctors

By Keisam Pradipkumar

The POCSO Act, 2012 (Protection of Children from Sexual Offences Act, 2012), which came into effect from 14th November, 2012, may stand, perhaps the most significant gift ever given to the children of the country during UPA regime. Sadly enough, the Act remained still in oblivion and unreached to many child victims of sexual offences. Till now some key stake holders, particularly police, doctors, CWCs are unable to execute their specific roles and responsibilities proactively as envisaged in the Act, in so doing care and protection assured in the Act, as undeniable rights of the child victims are ultimately deprived.

Unmistakable duties of police during the first 24 hours

Most specifically, the paramount role and duties of police need to be appreciated and streamlined, since police shall record and register the sexual offences (Penetrative or non Penetrative ) committed against the children under Protection of Children from Sexual Offences (POCSO) Act 2012, any negligence or lapses on the part of police will crop up with serious implications. If the police fail to register a case under the Act timely, then the case will remain almost unreported and it will slowly but surely evaporate from public domain resulting in leaving the culprit scot-free while the survivor child is not provided with any kind of care and protection measures or justice. Could the police deny from record or register a complaint about sexual assault cases under the Act? is a relevant question .

Under the POCSO Act, the police as a bounded duty, need to record the complaint and assign an entry number to the information, read it over to the complainant/informant, enter the complaint in a book kept by the Police Unit {Section 19((2)}. So it is evident that Police cannot refuse to record or register of any such complaint. Because failure to record information relating to the commission of an offence or an apprehension that an offence is likely to be committed is punishable under the Act, with imprisonment which may extend upto 6 months or with fine or with both (Section 21).

As emergency duties of police which need to discharge within 24 hours of the report being registered i.e. registering an FIR, local police or Special Juvenile Police Unit (SJPU) shall, without unnecessary delay but within a period of 24 hours, report all the sexual assault cases to the concerned Child Welfare Committee and Special Court or where no Special Court has not been designated, to the Court of Sessions, including the need of the child for care and protection ad steps taken in this regards (Section 6).

It is the duty of the SJPU and Police to ensure that a victim child of sexual assault is taken to the nearest hospital (Government or Private which is the closer) or medical facility within 24 hours of the report being registered {Section 19 (5)}. The police should be aware the fact that the time frame for medical examination of a child is within 24 hours from the case is reported to the police. Therefore, the police should, either on one or another pretext, never try to delay in taking the child for a medical examination within 24 hours at any cost.

Should the child victim be produced before Child Welfare Committee (CWC) within 24 hours of report being registered is another matter which is frequently asked that confused both CWC and police. As per the Section 6 of the Act, it is clear that police has a mandatory duty to report all the sexual assault cases to CWC within 24 hours, but production of the child is not stated. However, under Section 5 of the Act, if the SJPU/Police is convinced that the child is without any parental support or living with the abuser or potential abuser, or is in an institution, or homeless, the child victim must be produced within 24 hour before CWC. The SJPU/Police has to record the reason in writing as to why the child needs to be shifted and make immediate arrangement for care and protection. This may include admitting the child to hospital or shelter home within 24 hours of the report.

Duties of Hospitals or Doctors during the first 24 hours

A major problem being faced by victim party in the government hospitals in Manipur in regards to medical care and medical examination of the child sexual assault victims is that doctors usually refuse to give medical care and to conduct medical examination saying FIR is required prior to medical care and medical examination. Hospitals and Doctors should know, it is now a crystal clear that Rule 5 (3) of the POCSO Rules categorically bars doctors or hospitals from demanding legal documents ( FIR etc.) before rendering medical care, and Section 27 of POCSO Act stated that medical examinations must be carried out even if an FIR or Complaint has not been registered. In short, under the Act, any doctor or hospital now cannot insist on legal formalities to the victim’s party such as FIR or formal complaint to police about the sexual offence prior to the medical examination or emergency medical care of child victim.

Who can carry out the medical examination of child victim of sexual offence? And whether only the government hospitals can render emergency care - are imperative to understand. The medical examination is to be conducted by a Registered Medical practitioner (RMP) of a government hospital. In case a registered medical practitioner is not available at a government hospital only then doctors of a private hospital can also carry out the medical examination. Unavailability of government doctors for conducting medical examination is frequently reported in the state, generally when the child victim is brought late at night. Here the option for private hospitals can also be considered. It is to be noted here that as per Section 357 C of Code of Criminal Procedure, the private hospitals have a duty to provide first aid or medical treatment to female rape victims or acid attacks in free of cost. Since delay in medical examination may lose various evidences, an early medical examination within 24 hours must be ensured and for that matter, medical examination facility in government hospitals must be available round the clock on 24x7 service model. As Manipur is engulfed with HIV/AIDS epidemic and chances of infecting HIV virus to the child victim from the offender is fairly high, emergency medical care including administering of Post Exposure Prophylaxis is quite essential.

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THE CHILD RIGHTS MANIFESTO

Today, unseen, ignored, almost half of all Indian children under
the age of five are underweight, millions die each year of easily preventable
diseases and 8 million children do not go to school. In the 21st century, in
one of the world's fastest growing economies, this is unacceptable.

CRY - Child Rights and You works to ensure lasting change in the
lives of underprivileged children and you can help - by making your vote
count. Get our leaders to do more for children. Create a vote bank big enough
for them to hear that we, the people. demand child rights - the rights to
education, safety, healthcare, and participation.

Pledge your support and wear the yellow ChildMark proudly on
your finger.

THE CHILD RIGHTS
MANIFESTO
16th General
Elections 2014
CRY - Child Rights and You calls on all political parties to
become campaigner of rights of all children in India.

India, with about 430 million children, has the world’s largest
child population with every sixth child in the world today referring to India
as ‘home’. Although children constitute over a third of India’s population,
they are accorded a low priority in national policy and governance decisions.
CRY urges political parties and governments in power to take heed and ‘Put children first’ and include the following commitment
suggestions that can impact over a third of this nation’s population, when
designing their own election agenda.
• Harmonize the age
definition for all child-related legislations in line with National Policy for
Children 2013 where child is any person below the age of eighteen years.
• Ensure Right to
Education is fully exercised as fundamental right and Amend and expand the
scope of Right to Free and Compulsory Education (RTE) Act, 2009 such that: All Children between 6-14 years
get enrolled, regularly attend Elementary
school and avail quality education. Also, all children from 0-6 years and 14-18 years should come under the purview of the Act.
• Strengthen
implementation of Integrated Child Development Scheme (ICDS) such that all six services viz
Supplementary nutrition, Health Check-ups, Immunization, Nutrition & Health
Education, Pre-school non-formal education and referral services are
effectively functioning. Also ensure that there is an adequate investment
carried out in decentralized planning, universal coverage and trained
personnel.
• Reduce child mortality
and morbidity and ensure that no child remains malnourished through carrying out sustained efforts
towards complete immunization, regular health check-ups and growth monitoring,
proper nutritional support and health counselling of all children under 18
years.

• Declare access to
quality primary healthcare a Fundamental Right in the Constitution of India and strengthen Primary Health Care
systems and child health amongst the urban poor.
• Ensure Food security at
household level for all marginalized groups of people with proper implementation of the National
Food Security Act, 2013 and consider amendments (i) increasing the
protein/fat intake for pregnant mothers and children to 20-25 gms (according to
Supreme court order) instead of current provision of 18-20 gms (ii) including services such as immunization, health check-ups etc
which have been part of the ICDS as part of the Act (iii) making provision of supplementary
nutrition for children in the14-18 age group.
• Amend the Child Labour
(Prohibition and Regulation) Act, 2012: to abolish all forms of child labour by removing the distinction
between hazardous and non-hazardous categories of work for all children up to
18 years of age.
• Invest adequately in
ensuring protection for children by: (i) implementing policies and programme that protect children from
abuse, violence and exploitation; (ii) investing in
appropriate referral services for the recovery, rehabilitation and
reintegration of victims of abuse, violence and exploitation; investing in
creating a cadre of trained professional (iii) creating robust
monitoring of implementation of child protection mechanisms, schemes and
policies (iv) creating a proper database for child
trafficking, street children, missing children and ensuring a fully functional
newly developed child tracking system – ‘Track child’.
• Ensure Gender Parity,
Social Equity, and the rights of Children with disabilities with providing equal opportunities for all
social groups – SC, ST, Minority group and urban deprived groups. Become more responsive
to needs of girl children and children with disabilities.
• Allocate sufficient
Budget for Children (BfC) allocations by
increasing the allocation from 4.64% to at least 10% of total Union Budget. Also introduce a child budget component in the budget of all
allied Ministries and ensure effective National, State and District-level
management and utilization of outlays/ budgets.

The best interest of the child needs to be put at the centre of
all policy, legislation and practice affecting their young lives. India’s one
third population deserves demonstration of commitment as a nation. It calls for
action to express zero tolerance towards violation of children’s rights so that
every child attains happy, healthy and creative childhood.

MACR- Manipur Alliance for Child Rights- Charter of demand in Assembly elcetion, 2012

1. A strong political commitment to find out a political solution in place of repressive militarisation policy, to end the
long dawn armed conflict, that has been bringing out xtraordinary denial of the right to survival, development, and
protection of all the children in Manipur, including the children living with HIV/AIDS, by repealing the AFSPA which gives impunity extra judicial powers to the army.

2. A holistic state policy for ensuring safe and secured environment, where each and every individual could enjoy the equal opportunity for economic, social and cultural development.

3. A mass employment policy for youths, providing employment opportunity within the state, not merely in state security forces but in welfare and other allied sectors.

4. Setting up of State Commission for Protection of Child Rights with the full strength of the members, free from any political interference, where independence of the commission members while providing justice to the aggrieved children is upheld.

5. A comprehensive State Children’s Policy, under which children are provided with all the entitled rights of survival,
development, protection and participation without any discrimination.

6. A commitment to announce the education institutions as completely free zone, free from any political interference, corruption, military occupation, economic hindrance, while
ensuring meaningful free and compulsory education to children.

7. A commitment for providing adequate budget for schools’ infrastructural development, with special provisions for accessing to barrier free for children with disability, creating an enabling environment, so- that teachers could attend the schools without any hindrance, adequate support and monitoring mechanism for complete implementation of Mid Day Meal scheme in Government Schools and Aided Private Schools in the state.

8. A commitment for adequate budget support for nfrastructural improvement of health institutions at Panchayat, Block and District level, accessible provisions
for institutional delivery in the PHCs with proper pre and ante natal care facilities.

9. A commitment to make all ICDS centres, accessible and functional, ensuring additional nutritional support to the Children Living with HIV/AIDS by linking with the existing
ICDS centres.

10. Commitment for timely disbursement of fund to the
Government sponsored children homes, proper implementation of Integrated Child Protection Scheme (ICPS). Opening of Girls Shelter homes and Girls Children Homes
in the state on priority basis.

11. To set up Integrated Trauma Counselling cum Life skill Centres in all districts, for victims of child trafficking, rape,
conflict inflicted children, and other Child in Need of Care and
Protection and Juvenile in Conflict with
Law.

12. A commitment to ensure regular supply of safe
drinking water and uninterrupted power supply to every village and household, by acknowledging that without regular water and electricity supply, realisation of basic rights including right to life, right to education, right to health and development are not possible.

CRY- CHILD RIGHTS and YOU appeals to the people of Manipur on the event of Assembly election

1. Political and social stability in the state where people can be engaged in peaceful social and cultural life. Each and every individual, especially children could feel secure and protected. There must be ample opportunity for children and the youth to enjoy a happy and healthy life.
2. Children should be completely immunised at the community level. Government health services must reach every community so that each and every child can access basic Government health services.
3. Children below 6 years must be enrolled in ICDS centres and must get a midday meal along with additional food nutrient support. ICDS centres must be opened everyday for the children.
4. HIV positive children must get additional nutritional support, regular health check ups and ART treatment. Families of HIV positive children must get additional economic support from the state.
5. All children must get free and compulsory education at the community level. Government schools must be easily accessible and should have properly trained and qualified teachers.
6. Children must not be trafficked; it is the responsibility of the state to be alert on the issue of child trafficking, and ensure the protection of children at the community level.
7. All efforts must be made to rescue and rehabilitate trafficked children into society and through Government sponsored homes/institutions.
8. Children who are engaged as child labourers or as domestic workers must be rescued by the state and rehabilitated through proper legal actions by the state authority.

CRY- Child Rights & You Charter of demand on the occassion of 10th ManipurAssemble election

1. All political parties should commit to ensuring a safe and secured social environment, where each and every individual, especially children can enjoy a peaceful and healthy life; all individuals must get equal opportunity for economic, social and cultural development.
2. All political parties should commit to setting up a State Commission for Child Rights to protect the rights of children in the state. The Commission should be kept free from any political interference.
3. All political parties should commit to drawing up a clear-cut policy for children at the state level, where children will be provided with the rights to survival, development, protection and participation.
4. All political parties should commit to announce all educational institutions as zones free from political unrest, and ensure free and compulsory education to all the children.
5. All political parties should commit to allocate adequate budgetary provisions for building basic infrastructure for schools, with special provisions for disabled children.
6. All political parties should commit to make provisions for adequate budget support to develop infrastructure of health institutions at Panchayat, Block and District level. They must ensure that all children in the state can avail of free Government health services.
7. Long-term conflict has resulted in the unprecedented denial of the right to health, survival and development for all children in Manipur, including HIV positive children. The government should push for a permanent end to the armed conflict as it is one of the major reasons behind the poor access to healthcare.