CHILD RIGHTS IN THE CRIMINAL JUSTICE SYSTEM: NEED FOR LAW REFORM
10. Conflicting Provisions between Mandatory Reporting under POCSO Act
(Sec. 19) and Non-disclosure of Identity under Medical Termination of
Pregnancy Act (MTP) (Sec. 5A(1))
Another issue of concern were the conflicting provisions between Sec. 19 of the POCSO Act
and Sec. 5 A(1) of the MTP Act. Under Section 19 of the POCSO Act, reporting of child sexual
abuse to law enforcement is mandatory for anyone, who has an apprehension of such an
act being committed or has any knowledge of such a case.57 This includes NGOs, educators,
health professionals, parents, neighbours, and legal professionals who might be aware of
such cases. As per the law, consent of a minor is immaterial and the police is bound to register
an FIR against the “accused”.
POCSO Act also provides for mandatory reporting of sexual offences. This casts a legal duty
upon a person who has knowledge that a child has been sexually abused to report the offence;
if he fails to do so, he may be punished with six months’ imprisonment and/or a fine. The
objective of the provision relating to mandatory reporting was to ensure reporting of child
sexual abuse cases and not brush them under the carpet under the guise of “tarnishing
reputation” and “parents’ consent”. This provision is also an acknowledgement of the
prevalence and severity of child sexual abuse, and a means to prevent continuing violence.
On the other hand, Rule 3B (b) of the Medical Termination of Pregnancy (MTP) Rules allows
minors to seek abortion of pregnancy of the term 20-24 weeks. Section 5A (1) of the MTP
Act states that no registered medical practitioner (RMP) shall reveal the name and other
particulars of a woman whose pregnancy has been terminated under this Act – except to a
person authorised by any law.
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POCSO Act, Sec. 19. Reporting of offences: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person
(including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence
has been committed, he shall provide such information to — (a) the Special Juvenile Police Unit; or (b) the local police. (2) Every report
given under Sub-section (1) shall be — (a) ascribed an entry number and recorded in writing; (b) be read over to the informant; (c) shall be
entered in a book to be kept by the Police Unit. (3) Where the report under Sub-section (1) is given by a child, the same shall be recorded
under Sub-section (2) in a simple language so that the child understands contents being recorded. (4) In case contents are being recorded
in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications,
experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where
the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care
and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection
including admitting the child into shelter home or to the nearest hospital within twenty four hours of the report, as may be prescribed. (6)
The Special Juvenile Police Unit or local police shall, without unnecessary delay, but within a period of twenty-four hours, report the matter
to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including
need of the child for care and protection and steps taken in this regard. (7) No person shall incur any liability for giving information in good
faith about an offence under POCSO Act as required in above Sec 9 (1)
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