Chapter 1: Introduction

Chapter 01
Introduction

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 Chapter 1: Introduction

Chapter 01
Introduction

“There can be no keener revelation of a society’s soul than the way in which it
treats its children.”
-Nelson Mandela
1.1 INTRODUCTION
A Child is the manifestation of divinity. Its candidness and smile are its greatest and charmed
virtues which can hypnotize even a person having a heart of stone. Law and society
understand its frangible and delicate temperament but probably perhaps hesitation to act,
became so much empowered that the child remained neglected. The child has been defined as
a young human being below the age of puberty or below the legal age of majority.

Throughout the history of Homo Sapiens, children have been inflicted to indignities,
cruelties, and horrors. Owing to innocence and immaturity, a child is vulnerable to many
kinds of injuries and violence including bullying, forced labour and maltreatment involving
physical, sexual, psychological or emotional, abandonment, starvation, beating, slavery,
sexual assault and done to death all over the world at different times. Children are the
creatures who are yet to see the world but are often trapped under the shackles of sexual
violence if not protected by the responsible guardians and law. Child sexual abuse has become
a serious social problem in societies universally. Child abuse seems to increase in situations of
rapid socio-cultural change, urban migration, family disorganization and the like. However,
no candid set of prognostic variables have been identified. The factors that predict child abuse
in one society will not be predictive in another. Sexual violence is a kind of violence that not
only causes momentary injury on the body of a child but also leaves a lifelong scar on child’s
psyche which may lead to psychological disorders and thereby the overall growth of a child.
Moreover, viciousness in the lives of children can take direct and indirect forms. We need to
guard the integrity of childhood now and into the future.

UNICEF uses sixteen separate categories of child maltreatment to describe the targets of
its work of child protection. Some of the most important of those including the spectrum of
effected children are as follows:

An estimated 223 million children-10% of the world's children have been sexually
assaulted; this includes 150 million girls and 73 million boys.

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 Chapter 1: Introduction

More than 115 million children work in hazardous jobs; more than 215 million children aged
5-17 work regularly.

More than 67 million children of elementary school age do not go to school; they are
disproportionately girls; the ratio worsens as students enter secondary school.

More than 18 million children do not have parents as they are dead; more than 16
million children lost one or both parents due to AIDS.

Only half of the children under 5 years of age in developing nations have their births
registered.

Two million children are victims of sex trafficking or pornography.

UNICEF uses the term 'child protection' to refer “to preventing and responding to
violence, exploitation and abuse against children, including commercial sexual exploitation,
trafficking, child labour and harmful traditional practices such as female genital
mutilation/cutting and child marriage.”1 “Violations of the child's right to protection take
place in every country and are massive, under-recognized and under reported barriers to child
survival and development, in addition to being human rights violations.”2

The present thesis is an attempt to study child sexual abuse which is existing in different
forms and how they have been addressed in different existing Indian legislation and
government policies, comparison with legislations of other countries and suggestions for
reforms.

1.2 RIGHTS OF CHILDREN

Every human being on this planet including a child has rights. Society has always understood
the fragile and delicate temperament of a child but perhaps reluctance to act had been so much
powerful that the child remained a neglected piece of the community. The rights of the
children were demanded long back but many countries are still struggling for the same. The
reason behind this is that the children themselves are unaware of the rights that they possess
and nobody fights for them.

1
Radford L., Promising Programmes to Prevent and Respond to Child Sexual Abuse and Exploitation. UNICEF
available
at:https://www.unicef.org/protection/files/Promising_programme_responses_SEA_(Radford_et_al).pdf (last
visited on May 21, 2020).
2
Unicef India for every child, available at:https://www.unicef.org/india/stories (last visited on May 21, 2020).

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 Chapter 1: Introduction

However, a century ago in 1919, Eglantyne Jebb founded ‘Save the Children’. She was
one of the world’s champions of human rights. She was a British social reformer and former
teacher. She joined Fight the Famine Council, a group working to get food and medical
supplies to the starving children in countries like Germany and Austria. She stood in Trafalgar
Square and handed out leaflets that showed emaciated children with a headline: “Our
blockade has caused this - millions of children are starving to death.” Passers-by turned away
from the disturbing flyer. But Eglantyne was determined not to let people ignore, what she
believed was a violation of these children’s human rights. She was arrested, was found guilty
and fined for her protest. But the Judge was so impressed with her commitment that he paid
her fine and the said money became the first donation to Save the Children. She first
emphasized about the rights of the child in the form of First International Declaration of the
rights of the child. The expanded version of the above was adopted by the United Nations in
1959. The Declaration later inspired the 1989 UN Convention on the Rights of Child,
landmark human rights treaty.3

Poland was the first country which proposed the Convention on the Rights of the Child.
The Head of the Committee Panel for the Convention was a Polish lawyer, Adam Lopatka
who helped the committee resolved the issues and differences with ease. 4

The International year of the child was celebrated in the year 1979. For the Convention,
a child means “human being below the age of eighteen years unless, under the law applicable
to the child, the majority is attained.”5

1.2.1 International Commitment Towards Child Protection

India is a signatory to several international instruments and declarations on the

rights of children to protection, security and dignity. It acceded to the United Nations
Convention on the Rights of the Child (UNCRC) in 1992, reaffirming its earlier acceptance of
the 1959 UN Declaration on the Rights of the Child, and is fully committed to the
implementation of all provisions of the UNCRC. In 2005, the Government of India accepted
the two Optional Protocols to the UNCRC, addressing the involvement of children in armed

3
Our Founder: Eglantyne Jebb The Woman Who Started Save the Children, Save the Children, available
at:https://www.citethisforme.com/harvard-referencing (last visited on June 7, 2020).
4
UN SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON VIOLENCE AGAINST CHILDREN,
available at: https://violenceagainstchildren.un.org/news/poland-and-convention-rights-child-celebrating-vision-
janus-korczac-put-child-dignity-first (last visited on June 7, 2020).
5
Child Soldiers Final Exam, available at:https://quizlet.com/137693861/child-soldiers-final-exam-flash-cards/
(last visited on May 21, 2020).

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 Chapter 1: Introduction

conflict and the sale of children, child and measures to protect children from these dangerous
forms of violence and prostitution and child pornography.6
Three important International Instruments for the protection of Child Rights to which India is
a signatory are:

1.2.1.1 Convention On The Rights Of The Child (CRC):

CRC was adopted by the UN General Assembly in 1989. It was adopted

and opened for signature, ratification and accession by United Nations General Assembly
resolution 44/25 of November 20, 1989. The Convention is widely accepted. UN instrument
is ratified by most of the developed as well as developing countries, including India. This
Convention forms the pillar of children human rights law. The main intention of the
Convention is to protect all children in the world and establish similar international legal
obligations for State parties. The intention of the Convention is regarded as a revolutionary
movement for the protection of the sovereignty of the rights of the child. The Convention
calls upon State parties to improve family conditions and emphasizes the concept of non-
discrimination based on race, religion etc. The purpose of the Convention is to unequivocally
protect the primary and basic elements of the rights of the child. The Convention consists of
54 Articles and there are four core principles in the framework of this significant international
law-making treaty id est:

1) The best interest of the child as opposed to those of parents,

2) enjoying the right of the child with a non-discrimination method,

3) having access to basic rights which include right to life, and

4) survival development as well as respecting the right to participate in

the proceedings or hearings which may positively affect their rights in
any other domestic procedures.

The purpose of these four core principles is to ensure the basic requirements of civil,
political, economic, social, and cultural rights and vice versa. Although the Convention has
been signed and ratified by the Indian delegations.

The Convention was ratified by every State except the United States of America. There
are three Optional Protocols7 to the CRC id est “(i) The Optional Protocol to the CRC on the

6
available at:https://www.loc.gov/law/help/child-rights/international-law.php/ (last visited on June 7, 2020).

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 Chapter 1: Introduction

involvement of children in armed conflict (OPAC); (ii) The Optional Protocol to the CRC on
the sale of children, child prostitution and child pornography (OPSC); (iii) Communication
Procedure to CRC (OPCP)”8

The data collected by UN CRC from a range of low & middle-income countries show
that around 120 million girls under 20 years of age (about 1 in 10) have been subjected to
forced sexual intercourse or other forced sexual acts. About 1/3rd of women aged 20-24 years
in the developing world are getting married in their childhood. Approx. 30 million girls are at
risk of FGM/C. Approximately 2 million children continue to live in residential care instead
of living with families.

1.2.1.2 Convention On The Elimination Of All Forms Of Discrimination

Against Women (CEDAW):

CEDAW is also applicable to girls under 18 years of age. Article 16.2 of

the Convention lays special emphasis on the prevention of child marriages and states that
“betrothal and marriage of a child shall have no legal effect and that legislative action shall be
taken by States to specify a minimum age for marriage.”

1.2.1.3 SAARC Convention On Prevention And Combating Trafficking In

Women And Children For Prostitution:

It emphasizes that the evil of trafficking in women and children for

prostitution is incompatible with the dignity and honor of human beings and is a violation of
basic human rights of women and children.

7
Very often, human rights treaties are followed by "Optional Protocols" which may either provide for
procedures with regard to the treaty or address a substantive area related to the treaty. Optional Protocols to
human rights treaties are treaties in their own right, and are open to signature, accession or ratification by
countries who are party to the main treaty. The optional protocol includes an inquiry procedure, as well as a
complaints procedure. An inquiry procedure enables the Committee to conduct inquiries into serious and
systematic abuses of women's human rights in countries that become States parties to the Optional Protocol.
What is an Optional Protocol?, available at:https://www.un.org/womenwatch/daw/cedaw/protocol/whatis.htm
(last visited on June 7, 2020).
8
HaQ: Centre for Child Rights, Lost Childhood Caught in armed conflict in Jharkhand, available at:
https://www.slideshare.net/HAQCRCIndia/lost-childhood-caught-in-armed-violence-in-jharkhand (last visited
on May 21, 2020).

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 Chapter 1: Introduction

1.3 HISTORY OF THE RIGHTS OF CHILD

1919 Eglantyne Jebb founded Save the Children.

Campaigned for the first International “Declaration of the Rights of
the Child.” The Declaration of Geneva recognised that humanity
1923-1924
owes to the child the best it has to give and listed five principles
directing towards the development of children.
UNICEF was formed. It uses 16 separate categories of child
maltreatment to describe the targets of its work of child protection
including sexual assault, children indulged in hazardous jobs,
December 11, 1946
children not going to schools, children having any of the parents,
children not having their births registered, children victims of sex
trafficking and pornography.
The American Declaration of the Rights and Duties of Man or the
Bogota Declaration was adopted by the nations of the Americans at
the 9th International Conference of America States in Bogota,
April 30, 1948
Columbia. At the same time, the Charter of the organisation of
America States was adopted, creating the organization of America
States (OAS).
Universal Declaration of the Human Rights was drafted by the
representatives with different legal and cultural backgrounds from
all religions of the world, the declaration was proclaimed by the
December 10, 1948
UNGA in Paris on December 10, 1948 (General Assembly
Resolution 217 A) as a common standard of achievements for all
peoples and all nations.
The resolution was adopted by the UNGA 1386 (XIV) as the
1959
Declaration of the Rights of the Child.
1966 International Convention on Economic, Social & Cultural Rights.
1968 International Convention on Civil & Political Rights.
1973 Minimum Age Convention.
“International Covenant on economic, social and cultural rights was
December 16, 1966 adopted and opened for signature, ratification and accession by the
- January 3, 1976 United Nations General Assembly” 2200 A (XXI) of December 16,
1966 entry into force January 3, 1976, under Article 27.
International Year of the Child; Convention on the elimination of all
1979
forms of discrimination against women.
1986 Declaration of Right to Development.

UN Convention on the Rights of the Child (CRC) containing 54

Articles & 4 Fundamental Principles ie.
‣Survival, Development & Protection
1989
‣Devotion to the best interests of the Child
‣Equality & Non-Discrimination
‣Respect for the views of the Child

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 Chapter 1: Introduction

Child Rights International Network (CRIN) was established. It is a

1991-1995 private organization based in London which reviews United Nations
actions and nations' compliance with the UN CRC.
Creation of the Committee on the Rights of the Child, a body of 18
February 27, 1991
Independent experts that monitor implementation of the Convention.
Creation of the office of the rapporteur on the rights of the child of
1998
the inter-American Commission on Human Rights.
The African Charter on the Rights & Welfare of the Child
1999
(ACRWC) was created.

2000 UN Convention against Transnational Organized Crime.

Optional Protocol on the sale of children, child prostitution and

February 12, 2002
child pornography was adopted and came into force.
“Convention on Prevention and Combating Trafficking in Women
2002 and Children for Prostitution by South Asian Association for
Regional Cooperation (SAARC)”
General Comment 13 – Published by Committee on the rights of the
2011
child.

Optional Protocol to the Convention on the Rights of the Child on a

April 14, 2014
communication came into force.

Despite these declarations worldwide, child has been subjected to sexual abuse. Child
sexual abuse has become a serious social problem in societies universally.

1.4 CONCEPTUALISATION OF CHILD SEXUAL OFFENCE AND ITS TYPES

American Psychological Association defines sexual abuse as “unwanted sexual activity by
perpetrators using force, making threats or taking advantage of victims not able to give
consent. Most victims and perpetrators know each other. Immediate reactions to sexual abuse
include shock, fear or disbelief. Long-term symptoms include anxiety, fear or post-traumatic
stress disorder. While efforts to treat sex offenders remain unpromising, psychological
interventions for survivors - especially group therapy - appears effective.”9

The WHO10 defines child sexual abuse as “the involvement of a child in sexual activity
that he or she does not fully comprehend is unable to give informed consent to, or for which
the child is not developmentally prepared and cannot give consent, or that violate the laws or
social taboos of society.” “Child sexual abuse is evidenced by this activity between a child

9
Alan E. Kazdin, Encyclopedia of Psychology, 2000 (APA, 2000).
10
The World Health Organization is a specialized agency of the United Nations that is concerned with
international public health. It was established on 22 July 1946 headquartered in Geneva, Switzerland.

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 Chapter 1: Introduction

and an adult or another child who by age or development is in a relationship of responsibility,

trust or power, the activity being intended to gratify or satisfy the needs of the other person.
This may include but is not limited to the inducement or coercion of a child to engage in any
unlawful sexual activity; the exploitative use of a child in prostitution or other unlawful
sexual practices; the exploitative use of children in pornographic performance and
materials.”11

1.5 DYNAMICS OF CHILD SEXUAL ABUSE

The sexual abuse of children is a unique phenomenon; the dynamics are often very different
from that of adult sexual abuse and therefore, an abuse of this nature cannot be handled in the
same way. Features that characterize child sexual abuse include:

● Physical force/violence is very rarely used; rather the perpetrator tries to manipulate
the child’s trust and hide the abuse.

● The perpetrator is typically a known and trusted caregiver.

● Child sexual abuse often occurs over many weeks or even years.

● The sexual abuse of children frequently occurs as repeated episodes that become
more invasive with time. Perpetrators usually engage the child in a gradual process
of sexualizing the relationship over time (i.e. grooming).

● Incest/intrafamilial abuse accounts for about one-third of all child sexual abuse

cases.”

Pedophiles are individuals who prefer sexual contact with children to adults. They are
usually skilled at planning and executing strategies to involve themselves with children. There
is evidence to suggest that pedophiles may share their information about children (e.g. child
pornography). This can occur at an international level, particular through the use of the
internet.12

1.6 FORMS OF CHILD SEXUAL ABUSE:

Child Sexual Abuse has many forms which includes:

11
Child sexual abuse, WHO Report 2009, available at: http://www.who.int/violence_injury_
prevention/resources/ publications/en/guidelines_chap7.pdf (last visited on June 8, 2020).
12
Ibid.

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 Chapter 1: Introduction

1.6.1 Physical Abuse

“Physical abuse is to force physical injury upon a child. This may include
burning, hitting, punching, shaking, kicking, beating or otherwise harming a child. The parent
or caretaker may not have intended to hurt the child. It may, however, be the result of over
discipline or physical punishment that is inappropriate to the child’s age.”13

1.6.2 Sexual Abuse

“Sexual abuse is inappropriate sexual behaviour with a child. It includes fondling
a child's genitals, making the child fondle the adult's genitals, intercourse, incest, rape,
sodomy, exhibitionism and sexual exploitation. To be considered child abuse, these acts have
to be committed by a person responsible for the care of a child (for example a babysitter, a
parent, or a daycare provider) or related to the child. If a stranger commits these acts, it would
be considered sexual assault and handled solely by the police and criminal courts.” 14

1.6.3 Emotional Abuse

“It is also known as verbal abuse, mental abuse, and psychological maltreatment. It
includes acts or the failures to act by parents or caretakers that have caused or could cause
serious behavioral, cognitive, emotional, or mental trauma. This can include
parents/caretakers using extreme and/or bizarre forms of punishment, such as confinement in
a closet or dark room or being tied to a chair for long periods of time or threatening or
terrorizing a child. Less severe acts, but no less damaging, are belittling or rejecting treatment,
using derogatory terms to describe the child, habitual tendency to blame the child or make the
child scapegoat.”15

1.6.4 Neglect

“It is the failure to provide for the child's basic needs. Neglect can be physical,
educational, or emotional. Physical neglect can include not providing adequate food or

13
Essay on Child Abuse and Neglect, available at: https://www.bartleby.com/essay/Child-Abuse-and-Neglect-
PKJ33DSZTC (last visited on June 8, 2020).
14
Kathy Karageorge and Rosemary Kendall, “The Role of Professional Child Care Providers in Preventing and
Responding to Child Abuse and Neglect”, available at: https://www.childwelfare.gov /pubPDFs/childcare.pdf
(last visited on June 8, 2020).
15
Adam M. Tomison and Joe Tucci, “Emotional abuse: The hidden form of maltreatment”, available at:
https://aifs.gov.au/cfca/publications/emotional-abuse-hidden-form-maltreatment accessed on (last visited on June
8, 2020).

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 Chapter 1: Introduction

clothing, appropriate medical care, supervision, or proper weather protection (heat or cold). It
may include abandonment.”16

1.6.5 Educational Neglect

“It includes failure to provide appropriate schooling or special educational needs,

allowing excessive truancies. Psychological neglect includes the lack of any emotional
support and love, never attending to the child, substance abuse including allowing the child to
participate in drug and alcohol use.”17

1.7 INDIAN PERSPECTIVE QUA CHILD SEXUAL ABUSE:

1.7.1 Indian Laws Regarding Rights of Child

The framers of the Constitution of India were well aware of the rights of a child
and misuse of a child in the hands of the adults. This awareness is reflected in the
constitutional provisions. Following the doctrine of protective discrimination, Article 15 pays
special attention to children and allows the Central as well as State Governments to safeguard
the rights of children through special laws and policies. “The right to equality, protection of
life and personal liberty and the right against exploitation are enshrined in Articles 14, 15,
15(3), 19(1)(a), 21, 21(A), 23, 24, 39(e) & 39(f).”

Article 14 stipulates that the State is under the obligation “not to deny equality before
the law or the equal protection of the laws to any person in the country.” Article 15 envisages
that “no discrimination will be there against any citizen only on the ground of religion, race,
caste, sex, and place of birth or any of them.” Further, Article 15 (3) clarifies that “it will not
prevent the state to formulate any special provision for women and children.” Article 19(1)(a)
grants freedom of speech and expression to all citizens of India. Article 21 of the Constitution
speaks about “protection of life and the personal liberty but it is subjected to the procedure
envisaged by law.” Article 21A introduced by the eighty-sixth Amendment provides for “free
and compulsory education to all children who are between the age of 6 to 14 years.” Further,
Article 23 “prohibits the trafficking in human beings and forced labour” and violation of the
same has been made punishable under the law. Article 24 “prohibits the employment of
children who are below the age of 14 years in any factory or mine or in any other hazardous

16
Diane De Panfilis, “Child Neglect: A Guide for Prevention, Assessment, and Intervention”, available at:
https://www.childwelfare.gov/pubPDFs/neglect.pdf accessed on (last visited on June 8, 2020).
17
Child Abuse in India: The Battered Child, available at: http://lawexplores.com/child-abuse-in- india-the-
battered-child/ (last visited on June 8, 2020).

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 Chapter 1: Introduction

employment.” Article 39 directs the State “to make the policy to secure that health of
workers, men and women, and the children of tender age are not abused and they are not
forced to enter any avocation which is not suitable to their age or strength and the
opportunities and facilities are given to the children to develop in a healthy manner.”

1.7.2 Fundamentals of Child Oriented Policies and Laws

The National Commission for Protection of Child Rights (NCPCR)18 has evolved
the basic principles to be taken care of in the formulation of policies, adjudication of justice
for children and making laws for children. Five essential principles are decentralization,
flexibility, institution-building processes, convergence and listening to children and their
voices should inform and guide the formulation of policies and delivering of services. This
would enable ownership by the gram panchayats and the community of the programme to
protect children and where they would be involved in addressing the needs of each and every
child.19 All actions are to be institutionalized and taken up in a predictable manner and not in
an ad hoc fashion. Considering that entitlements to health, nutrition, education and so on are
dependent upon one another, it is necessary that the concerned departments do not function in
isolation but converge their plans and services at least at the level of block and district.20

The legislations are to adhere to the principles of equity and social justice to cover all
children up to 18 years of age. Special provisions for action for the disadvantaged children are
to be included in all legislations.

1.7.3 National Policies and Legislations Regarding Child Rights

The Fundamental Rights and Directive Principles of the Indian Constitution

provide the framework for child rights. Several laws and national policies have been framed
to implement the commitment to child rights.

National policies: The major policies and legislations to ensure child rights and
improvement in their status include:

18
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007under the
Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament (December 2005). NCPCR
is a statutory body under the CPCR Act, 2005 under the administrative control of the Ministry of Women &
Child Development, Government of India. The Commission's Mandate is to ensure that all Laws, Policies,
Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined
in the Constitution of India and also the UN Convention on the Rights of the Child.
19
National Commission For Protection of Child Rights, available at: www.ncpcr.gov.in/view_ file.php?fid=407
(last visited on June 8, 2020).
20
Ibid.

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 Chapter 1: Introduction

(i) National Policy for Children, 1974

(ii) National Policy on Education, 1986
(iii) National Policy on Child Labour, 1987
(iv) National Nutrition Policy, 1993
(v) Report of the Committee on Prostitution, Child Prostitutes and Children of
Prostitutes and Plan of Action to Combat Trafficking and Commercial
Sexual Exploitation of Women and Children, 1998
(vi) National Health Policy, 2002
(vii) National Charter for Children, 2004
(viii) National Plan of Action for Children, 2005

National Charter for Children, 200421 is “the intent to secure for every child the right to
a healthy and happy childhood, to address the root causes that negate the healthy growth and
development of children, and to awaken the conscience of the community in the wider social
context to protect children from all forms of abuse, while strengthening the family, society
and the nation.” This Charter has the following sections on child protection:

“(i) Survival, life and liberty;

(ii) Protection from economic exploitation and all forms of abuse;

(iii) Protection of the girl child;

(iv) Care, protection, the welfare of children of marginalized and disadvantaged

communities;

(v) Ensuring child-friendly procedures.”

National Plan of Action for Children (NPAC), 2005 was formulated by the then
Department of Women and Child Development (now MWCD) in 2005. The Plan is being
monitored by the Prime Minister's Office. “The Action Plan aims at ensuring all rights to
children up to the age of 18 years. It affirms the Government's commitment towards ensuring
all measures for the survival, growth, development and protection of all children. It also aims
at creating an enabling environment to ensure the protection of child rights. States are being
encouraged to formulate State Plans of Action for Children in line with NPAC. The National
Plan has identified several key priority areas that include children's right to survival,
development, protection and participation besides monitoring and review of policies and

21
Available at: https://www.nls.ac.in/.../National%20charter%20for%20children%,
https://docplayer.net/22942041-Child-rights-a-handbook-for-journalists.html (last visited on June 8, 2020).

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 Chapter 1: Introduction

programmes. The NPAC also stresses the need for budgetary allocations to achieve child
protection goals.”

Some of the Important National legislations for protection of child rights in India are:

(i) Guardian and Wards Act, 1890

(ii) Factories Act, 1954
(iii) Hindu Adoption and Maintenance Act, 1956
(iv) Probation of Offenders Act, 1958
(v) Bombay Prevention of Begging Act, 1959
(vi) Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960
(vii) Bonded Labour System (Abolition)Act, 1976
(viii) Immoral Traffic Prevention Act, 1986
(ix) Child Labour (Prohibition and Regulation) Act,1986
(x) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1987
(xi) Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994
(xii) Persons with Disabilities (Equal Protection of Rights and Full Participation) Act,
2000
(xiii) Juvenile Justice (Care and Protection of Children) Act, 2000
(xiv) Juvenile Justice (Care and Protection of Children) Act, 2015
(xv) Commission for Protection of the Rights of the Child Act, 2005
(xvi) Prohibition of Child Marriage Act, 2006
(xvii) POCSO Act, 2012

1.7.4 Provisions Under IPC Providing Immunity From Prosecution And Protecting
Interest Of Children

Immunity from prosecution is given to children under Sections 82 and 83 of IPC.

As per Section 82 IPC, anything done by a child who is under the age of 7 years is not an
offence. According to Section 83 IPC, anything done by a child between the age of 7 and 12
years is not an offence if he is not so mature to judge the nature and consequences of his
conduct on that occasion. Further, to safeguard the people who come forward to help the
children in danger are protected under Section 89 IPC which provides that whatever is done in
good faith for the sake of a child under 12 years of age or for a person of unsound mind, or by

14
 Chapter 1: Introduction

consent which can be either express or implied of the guardian is not an offence even if it may
cause any harm to that person. The provisions to protect the interest of children provided
under IPC are Sections 317, 361, 363, 363A, 366A, 369, 372 and 373 IPC.

Section 317 of IPC makes the offence punishable if either father or mother of the child
who is below the age of 12 years and is under care of such parent is exposed or left in any
place with the intention to abandon him wholly.

Section 361 of IPC is a penal clause which punishes the person who takes or entices
any minor male under sixteen years of age or any minor female under eighteen years of age,
or any person of unsound mind, from the lawful guardian of that minor or person of unsound
mind, without consent of the guardian.

Section 363 of IPC makes the offence punishable for the person who kidnaps any
person from India or from lawful guardianship. Section 363A of IPC makes the offence of
kidnapping any minor for the purpose of begging or naming him to employ or use him for the
purpose of begging. Further, Section 363A of IPC makes the offence punishable for the
persons “who induce any minor girl under the age of eighteen years to go from any place or to
do any act with intention or knowledge that such girl may be forced or seduced to illicit
intercourse with another person.” Section 369 of IPC makes the offence punishable for
kidnaping or abducting any child under the age of ten years having dishonest intention to take
moveable property from the said child. Section 372 of IPC makes the offence of selling,
letting to hire, or otherwise disposing of any person under the age of eighteen years with
intention or knowledge that such person shall be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral purpose as
punishable offence. Further, “Section 373 of IPC makes the offence of buying, hiring or
obtaining possession of any person who is under the age of eighteen years with intention or
knowledge that such person can be employed or used for the purpose of prostitution or illicit
intercourse with any person or for any unlawful and immoral purpose as punishable offence.”

Despite strong Constitutional and other legal frameworks towards strengthening child
rights, India lacked any provision against child sexual abuse. The above discussed generic
provisions were ill-equipped to address all the instances of sexual exploitation against
children. These provisions even failed to criminalise the instances of sexual assault and
molestation of boys.

15
 Chapter 1: Introduction

In the year 1971, 42nd Law Commission Report on Indian Penal Code took cognizance
of the fact that there was lack of any provision which would address the offence of indecent
assault on children. It was also observed that under this scenario, the Courts have to apply
restrictive provisions like Section 354 of IPC on the offence of child sexual abuse which is
non-penetrative in nature and provision like Section 376 of IPC on the penetrative sexual
assault upon the child. However, the said report did not recommend the inclusion of offence
of sexual assault on a boy. In the year 1997, 156th Law Commission Report on Indian Penal
Code recognized the International law obligations under CRC to protect children from sexual
exploitation and abuse. But observed that the existing sexual offences of ‘rape’, ‘assault
against women with intent to outrage their modesty’ and ‘unnatural offences’ were sufficient
to address the issue against the children but with minor enhancement in the punishment. It
also suggested that provisions related to the offence of hurt and use of criminal force should
be applied to address the offences of sexual abuse against boys.

On 9th August, 1999, the Supreme Court22 passed an order requesting the Law
Commission to reconsider its opinion. Thereafter, in the year 2000, in 172nd report, the Law
Commission recommended major amendments in the Indian Penal Code and some of the key
recommendations are:

1. An amendment to Section 375 IPC to include all forms of forced sexual assault
under the offence and widen its scope to make the provision gender-neutral.
2. Amendments to increase the penalty in cases where near relations and persons in
positions of trust and authority commit the offence of sexual assault.
3. The insertion of the offence of unlawful sexual contact which penalized touching
any part of the body of an adolescent with sexual intent and inciting with sexual
intent, adolescent persons to touch any part of the body of any person.
4. The report also suggested changes to evidence and procedural laws to make the
court proceedings more appropriate for sexual assault victims and children.”23

In parallel efforts to strengthen the framework of child rights in the year 2000, the
Special Expert Committee under the Chairmanship of J.V.R. Krishan Iyer and facilitated by
the UNICEF through its office in India presented a draft of Children’s Code Bill 2000 which
aimed to incorporate the spirit of CRC into the Indian legislative framework.

22
Sakshi vs. Union of India (1999) 6 SCC 591.
23
Law Commission of India, Review of Rape Laws (Law Com No 172,2000).

16
 Chapter 1: Introduction

In the year 2005, Department of Women and Child Development, in consultation with
Civil Society organizations, prepared the draft of offences against Children (Protection) Bill,
2005 which addressed even the sexual offences against the children. At last in January 2010,
an opinion cropped up that instead of general legislation, the Bill should focus on the issue of
sexual abuse and exploitation of children. It was also discussed that on parallel lines, the
amendments should be brought in Indian Penal Code and the Indian Evidence Act.
Consequentially, in September 2010, a draft of POCSO Bill, 2010 was prepared which after
several rounds of discussions, was presented in Rajya Sabha on 23rd March, 2011. Ultimately,
after series of deliberations at various levels, POCSO Act was passed in the Parliament on
22nd May 2012 which came into force on 14th November 2012, on Children’s Day. It was
amended in the year 2013, 2018 and 2019.

1.8 ANALYSIS OF POCSO ACT, 2012 (Including Amendments in the year 2019)
In India, however, the right of the child for protection against offences of sexual assault,
sexual harassment and pornography were firstly recognized by way of implementation of the
Protection of Children from Sexual Offences Act, 2012 which came into force on 14th
November 2012 as the Government of India assented (11th December 1992) to the Convention
on the rights of the child adopted by the General Assembly of the United Nations which has
prescribed a set of standards to be followed by all the State Parties in securing the best interest
of the child. “It was implemented after realization by the Government of India that it was
necessary for the proper development of the child that her/his right to privacy and
confidentiality be protected and respected by every person by all means and through all stages
of a judicial process involving a child.” Some of the penal provisions of the Act have been
explained in a tabular form as follows:

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
1. Gender Neutral Act as Child - Section 2(d):
means “any person below the Definition of
age of eighteen years.” Child

17
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
2. Penetrative Sexual Assault: “A Earlier:- Minimum: Sections 3 & 4
person commits such act if he Imprisonment for 7 years +
penetrates his penis to any extent fine
into the vagina, mouth, urethra or
anus of a child, or makes a child Maximum: Life

do the same, or inserts any other Imprisonment + fine

object into the child’s body, or

manipulates any part of the body
After amendment:- Min.:
of the child to cause penetration or
Imprisonment for 10 years +
applies his mouth to a child’s body
fine
parts or makes a child do so to any
person.” Max.: Life Imprisonment +
fine
After Amendment: A person
committing such act on a child Min.: Imprisonment for 20
below 16 years of age years + fine

Max.: Life Imprisonment

which means for the
remainder of natural life+
fine

3. Aggravated penetrative sexual Earlier:- Min.: Rigorous

assault: “These include cases imprisonment for 10 years +
when a police officer/member of fine
the armed forces/public
servant/member of management of
Max.: Rigorous Life
staff of a jail, remand home,
imprisonment + fine
protection home, observation
home or other place of custody or
care and protection/member of
management or staff of a hospital
either government or private/an
educational institution of religious
institution commits penetrative

18
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
sexual assault on a child” within
the limits of police station/ area to
which the person is deployed or
the premises of any station house/
area under his command or in the
course of his duties/being inmate
of such jail, remand home,
protection home, observation
home or other place of custody or
care and protection/in hospital/in
educational/religious institution or
gang penetrative sexual assault. It
also includes cases where the
offender commits such offence
using deadly weapons, fire, heated
substance or corrosive substance
or causes grievous hurt or bodily
harm and injury or injury to the
sexual organs of the child or
physically or mentally
incapacitates the child or makes
the female child pregnant or
inflicts HIV or any other life
threatening disease or infection
temporarily or permanently
impairing the child physically or
mentally incapacitated or attempts
to cause death of the child or
commits such offence upon
mentally or physically disabled
child or more than once or
repeatedly or upon a child below
12 years.

19
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
It also includes a relative of the
child may be by blood or adoption
or marriage or guardianship or
foster care or domestic
relationship with the parent of the
child or a person who has been
previously convicted of any
offence under this Act or for any
sexual offence punishable under
any other law. Penetrative sexual
assault also becomes aggravated if
it is committed by a person being
owner or member of “management
or staff of any institution
providing services to the child or
by a person in a position of trust or
authority of a child or by a person
knowing that the child is pregnant
or by a person in the course of
communal or sectarian violence or
who after committing such offence
makes the child to strip or parade
naked in public.”
After Amendment : After amendment:- Min.: Sections 5 & 6
Rigorous imprisonment for
The penetrative sexual assault also
20 years + fine
becomes aggravated when while
committing such an offence, death Max.: Rigorous
of a child is caused or it is imprisonment for life which
committed during natural calamity means for the remainder of
or in similar situations. natural life + fine/ Death

20
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
4. Sexual Assault: “It includes the Min.: Imprisonment for 3 Sections 7 & 8
acts where the person touches the years + fine
vagina, penis, anus or breast of the
Max.: Imprisonment for 5
child or makes the child touch the
years + fine
vagina, penis, anus or breast or
does any other act with sexual
intent which involves physical
contact without penetration.”
5. Aggravated Sexual Assault: Min.: Imprisonment for 5 Sections 9 & 10
“These include cases when a years + fine
police officer/member of the
Max.: Imprisonment for 7
armed
years + fine
forces/public/servant/member of
management of staff of a jail,
remand home, protection home,
observation home or other place of
custody or care and
protection/member of
management or staff of a hospital
either government or private/an
educational institution of religious
institution commits sexual assault
on a child within the limits of
police station/area to which the
person is deployed or the premises
of any station house/area under his
command or in the course of his
duties/being inmate of such jail,
remand home, protection home,
observation home or other place of
custody or care and protection/in
hospital/in educational/ religious
institution or gang sexual assault.

21
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
It also includes cases where the
offender commits such offence
using deadly weapons, fire, heated
substance or corrosive substance
or causes grievous hurt or bodily
harm and injury or injury to the
sexual organs of the child or
physically or mentally
incapacitates the child or inflicts
HIV or any other life threatening
disease or infection temporarily or
permanently impairing the child
physically or mentally
incapacitated or attempts to cause
death of the child or commits such
offence upon mentally or
physically disabled child or more
than once or repeatedly or upon a
child below 12 years. It also
includes a relative of the child
may be by blood or adoption or
marriage or guardianship or foster
care or domestic relationship with
the parent of the child or a person
who has been previously
convicted of any offence under
this Act or for any sexual offence
punishable under any other law.
Sexual assault also becomes
aggravated if it is committed by a
person being owner or member of
management or staff of any
institution providing services to

22
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
the child or by a person in a
position of trust or authority of a
child or by a person knowing that
the child is pregnant or by a
person in the course of communal
or sectarian violence or who after
committing such offence makes
the child to strip or parade naked
in public.”

After Amendment: It also

includes a person who commits
such offence during natural
calamity or in similar situations or
persuades, induces, entices or
coerces a child to get administered
any drug or hormone or any
chemical substance with the intent
that such child attains early sexual
maturity.
6. Sexual harassment: It includes Min.: Imprisonment for 1 Sections 11 & 12
the acts when a person with sexual year + fine
intent utters any word or makes
any sound or shows any object or Max.: Imprisonment for 3
contacts a child through digital years + fine
means or threatens to use a real or
depiction through the electronic
film as an involvement of the child
in a sexual act.

23
 Chapter 1: Introduction

Sr. CONTENTS PUNISHMENTS SECTIONS

No.
7. “Use of a child for pornographic Max.: Imprisonment for 5 Sections 13 & 14
purposes: It includes use of a years + fine for first
child in any form of media for the offence.
purposes of sexual gratification Max.: Imprisonment for 7
including representation of the years + fine for second or
sexual organs of a child, usage of subsequent conviction
a child engaged in real or After Amendment :Min.:
simulated sexual acts or the Imprisonment for 5 years +
indecent or obscene representation fine for first offence
of a child.” Min. : Imprisonment for 7
years + fine for second or
subsequent conviction

8. Use of child for pornographic Min.: Imprisonment for 10 Sections 13 & 14

purposes resulting in years + fine
penetrative sexual assault Max.: Imprisonment for
life + fine
9. Use of child for pornographic Imprisonment for life + Sections 13 & 14
purposes resulting in fine
10. aggravated penetrative
Use of a child sexual Min.: Imprisonment for 6 Sections 13 & 14
for pornographic
purposes resulting in sexual years + fine
assault Max.: Imprisonment for 8
years + fine
11. Use of child for pornographic Min.: Imprisonment for 8 Sections 13 & 14
purposes resulting in years + fine
aggravated sexual assault Max.: Imprisonment for 10
years + fine

Reporting of Offences:
Section 19(1) of the Act talks about “any person including the child who has
apprehension that an offence is likely to be committed or has knowledge that such an offence
has been committed who shall provide information to the Special Juvenile Police Unit/the
local police”; Section 19(2) says “every report shall be ascribed an entry number and recorded

24
 Chapter 1: Introduction

in writing, read to the informant and entered in a book to be kept by the Police Unit”; Section
19(3) stipulates that “where the report is given by child, it shall be recorded in a simple
language so that child understands”; As per Section 19(4) “if the contents of the case are not
understood by the child then a translator/interpreter shall be provided to the child”; Section
19(5) states “if the child against whom an offence has been committed is in need of care and
protection then he/she shall within 24 hours of the report be admitted into shelter home”;
Section 19(6) says that “Special Juvenile Police Unit/local police within 24 hours shall report
the matter to CWC and the Special Court”; Section 19(7) obliges Special Juvenile Police
Unit/local police to report the matter to CWC and the Special Court within 24 hours.

Section 21 of the Act states that “it is mandatory for 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, shall provide such information to the
Special Juvenile Police Unit or the local police. The punishment for the same shall be
Imprisonment for 6 months/ fine/ both and for any person being in charge of any company or
an institution, it shall be imprisonment for 1 year and fine.”

Sections 20-21 of the Act say that “any person of the media, on coming across any
material or object which is sexually exploitative of the child through the use of any medium,
shall provide such information to the Special Juvenile Police Unit, or the local police. The
punishment for the same shall be imprisonment for 6 months/fine/both.”

False Information :

Section 22 of the Act makes the provision for penalizing the false complaint or
information with exception of a child.

Procedure for Media :

Section 23 of the Act stipulates that “no person shall make any report or present
comments on any child from any form of media without having complete and authentic
information; no reports in any media shall disclose the identity of the child, and failure to do
so has been made punishable with minimum Imprisonment for 6 months and maximum
Imprisonment for 1 year/fine/both.”

Procedure for Recording Statement of the Child :

Sections 24-27 guide how the statement has to be recorded in a child friendly manner by
investigating officer and magistrate and how medical examination of a child victim has to be
conducted.

25
 Chapter 1: Introduction

Special Courts and Special Public Prosecutors :

Sections 28-31 of the Act provides the speedy trial and that “in each district, a Court of
Session is designated as a Special Court.” According to Sections 29 and 30 of the Act, “the
Special Court shall presume that the person being tried has committed or abetted or attempted
to commit and for the said purpose, such offender had culpable mental state unless the
contrary is proved.”

Section 32 of the Act states that a Special Public Prosecutor has to be appointed by the
State for the trial under this Act.

Procedure before Special Courts:

Section 33 of the Act talks about “the Procedure & Powers of Special Court; ensure that
child is not called repeatedly to testify to court; no aggressive questioning on character
assassination of the child; ensure that the identity of the child is not disclosed; direct payment
of compensation for any physical/ mental trauma caused.” Section 34 of the Act guides about
the procedure to be adopted for determination of age of the perpetrator and the victim.

Section 35 of the Act limits the time period for recording evidence of a child witness as
30 days and limits the time for completion of trial within one year from the date of
cognizance.

Section 36 of the Act states that “at the time of testifying, the child should not see an
accused to depose fearlessly.” For child friendly trial, Section 37 of the Act stipulates that
“the trial should be conducted in-camera and in the presence of the parents or any other
person in whom the child has trust and confidence.”

Even as per mandate of Section 38 of the Act, the Court may take the help of a
translator/ interpreter if the child has a mental/physical disability.

Section 39 of the Act contains the provision for the State Government to frame
guidelines for use of NGOs, professionals and experts or persons who have knowledge of
psychology, social work, physical health, mental health and child development to assist the
child in pre-trial and trial stage.

Section 40 of the Act identifies the right of the child to take assistance of legal
practitioner of the choice of the family or the guardian of the child and if the family or the
guardian or the child is unable to afford a legal counsel, the Legal Services Authority is under
the obligation to provide a lawyer to them.

26
 Chapter 1: Introduction

Section 41 of the Act comes to the rescue of the medical practitioner by incorporating
that the provisions of the Sections 3 to 13 of the Act shall not apply in case of medical
examination or medical treatment of a child when such examination or treatment is
undertaken with the consent of the parent or guardian of the child.

Section 42 of the Act talks of alternative punishment by stating that “where an act or
omission constitutes an offence punishable under this Act and also under Sections 166-A,
354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376-AB, 376-B, 376-C, 376-D,
376-DA, 376-DB, 376-E, 509 of IPC or Section 67-B of Information Technology Act, 2000”
then the offender who is found guilty of such offence shall be liable to punishment only under
this Act or under the Indian Penal Code whichever provides for punishment greater in degree.

Section 42A of the Act provides overriding effect to this Act by stating that “the
provisions of this Act shall be in addition to and not in derogation of the provisions of any
other law for the time being in force and if there is any inconsistency, the provisions of this
Act would prevail to the extent of inconsistency.”

Further, Section 43 of the Act makes it obligatory upon the Central Government and
every State Government to take all measures to ensure that there is wide publicity through
media which shall include TV, radio, and the print media and that too at regular intervals of
the provisions of this Act to make aware the general public, children and their parents and
guardians. It has also been made obligatory upon the Central Government and the State
Governments to impart periodic training for implementation of the provisions of the Act to
their officers as well as other concerned persons.

Section 44 of the Act has empowered The National Commission for Protection of Child
Rights constituted under Section 3, the State Commission for Protection of Child Rights
constituted under Section 17 of the Commissions for the Protection of Child Rights’ Act,
2005 to monitor the implementation of the provisions of the Act and they have been
empowered with the same powers as are vested in them under the Commission for Protection
of Child Rights Act, 2005. Their activities under this Section have to be included in annual
report referred to in Section 16 of the Commissions for Protection for Child Rights Act.

Section 45 of the Act imposes a duty upon the Central Government to make rules by
notification in the official gazette so that the purposes of this Act are carried out with regard
to “manner of deleting or destroying of reporting of pornographic material involving a child;
the manner of reporting pornographic material involving a child; the qualifications and

27
 Chapter 1: Introduction

experience of and the fees payable to a translator or an interpreter, a special educator or any
person familiar with the manner of communication of child or an expert in that field; care and
protection and emergency medical treatment of the child; the payment of compensation and
the manner of periodic monitoring of the provisions of the Act.”

Lastly, Section 46 of the Act states that “if any difficulty arises in giving effect to the
provisions of this Act, the Central Government may make such provisions not inconsistent
with the provisions of this Act for removal of the difficulty by order published in the official
gazette only upto the period of two years from the commencement of this Act.”

The scheme of the POCSO Act, 2012 can be better understood with the help of flow
chart:

Child Sexual
Abuse

Recording of statement by
Reporting the incident to local SJPU/Police in simple language
police / SJPU within 24 hours& report to
CWC & Special Court
Section 19
Section 19(3)(6)& Rule 4(3)

Produce To present
before CWC the final To inform
Take the To produce
To ensure: to determine To complete report Special
child to a before
samples child’s stay Form B and before Court of
Shelter Magistrate
collected within 3 days submit to Special appointment
Home/Hospit for
and sent along with the CWC Court who of support
al Recording
immediate report that a shall person by
of the
ly to child is in Rule 4(14) complete CWC within
Section Statement
forensic need of care trial within 24 hours
19(5)& Rule lab one year of
and protection Rule4(10)
4(3)(b)(c) Section 25
Rule 4(5&6) cognizance

Note: As per the circumstances of the case.

Restoration to Children Homes

family/guardian Rule 4(4) or Counselling Support
or Fit Person Shelter Homes under Section Person
Rule 4 Section 19(5) & 40 Rule 4(7)
Rule 4(4)

Child to be provided Take measures to prevent

help of Prosecution by
victim coming face to face Victim
interpreter/translator/ Special Public
with accused Compensation
special educator Prosecutor
Section 33(7) & Rule 7
Section 19(4) & Rule Section 32
Section 36
3(7)

Figure 1.1: Processes under The POCSO Act, 2012

28
 Chapter 1: Introduction

1.9 THE POCSO RULES 2020

Earlier, there were ‘The POCSO Rules 2012’ which were repealed in the year 2020 by ‘The
POCSO Rules 2020’ (Peruse Annexure A)

The POCSO Rules 2020 have set a procedure for all the concerned stakeholders. The
Central Government and State Governments are under obligation to prepare the educational
material which should be age related and curriculum for children. It should be prepared to
intimate the school going children on different aspects of personal safety which shall include:

“(i) Measures to protect their physical, and virtual identity; and to safeguard their
emotional and mental wellbeing;

(ii) Prevention and protection from sexual offences;

(iii) Reporting mechanisms, including Child helpline – 1098 services;

(iv) Inculcating gender sensitivity, gender equality and gender equity for effective
prevention of offences under the Act.”24

“Even the Governments have to disseminate the material and information at all public
places like panchayat bhavans, community centres, schools, colleges, railway stations, bus
terminals etc. and even through internet and social media.”25
“All the Institutions which are housing the children or in regular contact with children
are casted upon a duty to get the police verification done and background checked on periodic
basis of the entire staff, may be regular or contractual who is coming in contact with the child.
Even periodic training is to be organized by such Institutions for sensitizing the staff on the
safety and protection of children.”26 “The Governments are also under the obligation to
provide such trainings on regular basis.”27

Further, “if the Special Juvenile Police Unit (in short referred to as “SJPU”) or the local
police had been intimated about any commission or apprehension of commission of an
offence, the report has to be registered immediately.”28 “Even if any such report is received by
child helpline – 1098, it is also under obligation to immediately report about the same to SJPU
or the local police.”29 Further, “apart from registration of FIR, the SJPU or the local police

24
Rule 3(1) of POCSO Rules 2020.
25
Rule 3(2) of POCSO Rules 2020.
26
Rule 3(4) of POCSO Rules 2020.
27
Rule 3(6) of POCSO Rules 2020.
28
Rule 4(3)(a) of POCSO Rules 2020.
29
Rule 4(2) of POCSO Rules 2020.

29
 Chapter 1: Introduction

shall provide emergency medical care, if the child so requires.”30 “It shall also ensure that all
the samples which have been collected for forensic tests are immediately sent to the forensic
laboratory”31. “Information has to be given to the child and his parents or guardian or any
other person in whom the child has trust and confidence with respect to the right to legal
advice and support services available and facilitating in contacting such persons.”32

“If on information, it is disclosed that either the offence has been committed or
attempted or there is apprehension of commission of such an offence by a person who is
living in the same or shared household with the child or Child Care Institution and the child is
without parental support or the child is without any home and parental support, it is the duty
of the SJPU or the local police to produce such child before the concerned CWC and that too
within 24 hours of receipt of such report. Such production shall be with the reasons in writing
if the child is in need of care and protection and with the request for a detailed assessment by
the CWC.”33

After such request, the duty of CWC commences. “CWC within three days has to
determine if the child needs to be taken out of the custody of the child’s family or shared
house-hold and has to be placed in a children’s home or a shelter home. This can be done by
CWC at its own or with the assistance of a local social worker.”34

It has also been prescribed that in determining so, apart from the best interests of child,
the CWC has to take into account eight factors which are as follows:

“(i) the capacity of the parents, or of either parent, or of any other person in whom the
child has trust and confidence, to provide for the immediate care and protection
needs of the child, including medical needs and counseling;

(ii) the need for the child to remain in the care of parent’s, family and extended family
and to maintain a connection with them;

(iii) the child’s age and level of maturity, gender, and social and economic
background;

(iv) disability of the child, if any;

(v) any chronic illness from which a child may suffer;

30
Rule 4(3)(b) of POCSO Rules 2020.
31
Rule 4(3)(d) of POCSO Rules 2020.
32
Rule 4(3)(e) & (f) of POCSO Rules 2020.
33
Rule 4(4) of POCSO Rules 2020.
34
Rule 4(5) of POCSO Rules 2020.

30
 Chapter 1: Introduction

(vi) any history of family violence involving the child or a family member of the
child; and,

(vii) any other relevant factors that may have a bearing on the best interests of the
child.”35

Even the CWC may provide a support person with the consent of the child and child’s
parent or guardian or other person in whom the child has trust and confidence. “On providing
of the support person, immediate information has to be sent to SJPU or the local police.”36
“Even the information has to be sent to the Special Court by the SJPU or the local police
within 24 hours.”37

“Such support person is under the duty to maintain the confidentiality of the entire
information which pertains to the child. He shall inform the child about the role of the support
person.”38 “CWC has to seek monthly reports from the support person and that too till
completion of trial. Such report has to be furnished qua condition and care of child which
shall include the family situation; physical, emotional and mental wellbeing of the child;
progress in his recovery from trauma etc.”39

Further, “a duty has been imposed upon SJPU or the local police to inform the child and
his/her parent or guardian or person in whom the child has trust and confidence about the
developments in the case and proceedings of the Court.”40 “It shall further inform the child
and his/her parent or guardian or person in whom the child has trust and confidence about the
entitlements and services available to them as per provisions of the Act, it has also to
complete the Preliminary Assessment Report for submission to the CWC.” 41

Rule 5 of POCSO Rules 2020 mentions about “the maintenance of the record of names
and addresses and other details of interpreters, translators, experts, special educators and
support persons, their qualifications and experience, payment of fees for their services, their
duties and rules of confidentiality.”

Even the POCSO Rules 2020 mention about the protocol to be followed by the Medical
Practitioners on emergency production of the child victim of sexual abuse. Rule 6 deals with
the same. It categorically mentions that “the emergency medical care should be provided

35
Rule 4(6) of POCSO Rules 2020.
36
Rule 4(8) of POCSO Rules 2020.
37
Rule 4(10) of POCSO Rules 2020.
38
Rule 4(9) of POCSO Rules 2020.
39
Rule 4(12) of POCSO Rules 2020.
40
Rule 4(13) of POCSO Rules 2020.
41
Rule 4(14) of POCSO Rules 2020.

31
 Chapter 1: Introduction

without demand of any document and by protecting the privacy of a child and in the presence
of the parent or guardian or any person in whom the child has trust and confidence.”42

The registered Medical Practitioners have to look into the following aspects:

“(a) treatment for cuts, bruises, and other injuries including genital injuries, if any;

(b) treatment for exposure to sexually transmitted diseases (STDs) including

prophylaxis for identified STDs;

(c) treatment for exposure to Human Immunodeficiency Virus (HIV), including

prophylaxis for HIV after necessary consultation with infectious disease experts;

(d) possible pregnancy and emergency contraceptives should be discussed with the
pubertal child and her parent or any other person in whom the child has trust and
confidence; and,

(e) wherever necessary, a referral or consultation for mental or psychological health

needs, or other counseling, or drug de-addiction services and programmes should
be made.”

“There is specific rule regarding providing of legal aid and assistance to a child victim
and CWC is under a duty to make such recommendation to District Legal Services
Authority.”43

CWC can even recommend immediate payment of amount in case of special relief like
food, clothes, transport etc. is required to be provided to the child victim to any of the
following:

“(i) the DLSA under Section 357A; or;

(ii) the DCPU out of such funds placed at their disposal by state or;

(iii) funds maintained under Section 105 of the Juvenile Justice (Care and Protection
of Children) Act,2015 (2of 2016).”44

“CWC shall also ensure that any amount of fine imposed by the Special Court to be paid
to the victim, is in fact paid to the child and shall facilitate for opening a bank account,
arranging for identity proofs etc. which could be with the assistance of DCPU and support
person.”45

42
Rule 6(2) & (3) of POCSO Rules 2020.
43
Rule 7 of POCSO Rules 2020.
44
Rule 8 of POCSO Rules 2020.
45
Rule 10 of POCSO Rules 2020.

32
 Chapter 1: Introduction

The procedure has also been prescribed for the Special Court for grant of interim/final
compensation. “The Special Court either or its own or on an application pass an order for
interim compensation so as to meet the needs of the child or rehabilitate him/her at any stage
after registration of the FIR. However, payment of interim compensation will be adjusted
against the final compensation, if any paid.”46

“The Special Courts as per Rules on its own or on an application, can recommend the
compensation not only where the accused is convicted but even where the accused is
acquitted or discharged or the accused is not raised or identified but the child has suffered loss
or injury in consequence of the offence.”47

The Special Court has not only recommended the award of compensation under Section
357A Cr.P.C. but to quantify the same by keeping in view the following factors in mind:

“(i) type of abuse, gravity of the offence and the severity of the mental or physical
harm or injury suffered by the child;

(ii) the expenditure incurred or likely to be incurred on child’s medical treatment for
physical or mental health or on both;

(iii) loss of educational opportunity as a consequence of the offence, including absence

from school due to mental trauma, bodily injury, medical treatment, investigation
and trial of the offence, or any other reason;

(iv) loss of employment as a result of the offence, including absence from place of
employment due to mental trauma, bodily injury, medical treatment, investigation
and trial of the offence, or any other reason;

(v) the relationship of the child to the offender, if any;

(vi) whether the abuse was a single isolated incidence or whether the abuse took place
over a period of time;

(vii) whether the child became pregnant as a result of the offence;

(viii) whether the child contracted a sexually transmitted disease (STD) as a result of
the offence;

(ix) whether the child contracted human immunodeficiency virus (HIV) as a result of
the offence;

46
Rule 9(1) of POCSO Rules 2020.
47
Rule 9(2) of POCSO Rules 2020.

33
 Chapter 1: Introduction

(x) any disability suffered by the child as a result of the offence;

(xi) financial condition of the child against whom the offence has been committed so
as to determine such child’s need for rehabilitation;

(xii) any other factor that the Special Court may consider to be relevant.” 48

“The State Government is further obliged to make the payment of compensation from
Victims Compensation Fund or other scheme within a period of 30 days of receipt of such
order.”49 “However, child is not refrained from applying to seek relief under any other rules or
scheme of the Central Government or State Government.”50

“Even the reporting of receipt, storing, possession, distribution, circulation,

transmission, facilitation, propagation or display or apprehension of distribution, facilitation
or transmission of pornographic material to the SJPU or the local police of Cyber Crime is
mandatory. On such reporting, the concerned authority is duty bound to take necessary
action.”51

“If the person who reported is intermediary”52, “he is duty bound to hand over the said
material including the details of both the devices i.e. device in which pornographic content
was noticed and the device from which it is suspected that the content was received including
the platform on which the said content was displayed”53 apart from the source of origin of
such material. “Thereupon, the concerned authority is under the obligation to take necessary
action.”54

“Moreover, the Central and every State Government have been casted a duty to spread
awareness from time to time about the procedures of making such reports.”55

The National Commission for the Protection of Child Rights or the State Commission
for the Protection of Child Rights has also been imposed duty to perform the functions for
implementation of the Act which are as follows:

48
Rule 9(3) of POCSO Rules 2020.
49
Rule 9(4)&(5) of POCSO Rules 2020.
50
Rule 9(6) of POCSO Rules 2020.
51
Rule 11(1) of the POCSO Rules 2020.
52
2. Definitions - (1) In this Act, unless the context otherwise requires - (w) “intermediary”, with respect to any
particular electronic records, means any person who on behalf of another person receives, stores or transmits that
record or provides any service with respect to that record and includes telecom service providers, network
service providers, internet service providers, web-hosting service providers, search engines, online payment
sites, online-auction sites, online-market places and cyber cafes.
53
Rule 11(3) of the POCSO Rules 2020.
54
Rule 11(2) of the POCSO Rules 2020.
55
Rule 11(4) of the POCSO Rules 2020.

34
 Chapter 1: Introduction

“(a) monitor the designation of Special Courts by State Governments;

(b) monitor the appointment of the Special Public Prosecutors by the State
Governments;

(c) monitor the formulation of the guidelines described in section 39 of the Act by the
State Governments, for the use of non-governmental organisations, professionals
and experts or persons having knowledge of psychology, social work, physical
health, mental health and child development to be associated with the pre-trial and
trial stage to assist the child, and to monitor the application of these guidelines;

(d) monitor the designing and implementation of modules for training police
personnel and other concerned persons, including officers of the Centre and State
Governments, for the effective discharge of their functions under the Act;

(e) monitor and support the Central Government and State Governments for the
dissemination of information relating to the provisions of the Act through media
including the television, radio and print media at regular intervals, so as to make
the general public, children as well as their parents and guardians aware of the
provisions of the Act.

(f) call for a report on any specific case of child sexual abuse falling within the
jurisdiction of a CWC.

(g) collect information and data on its own or from the relevant agencies regarding
reported cases of sexual abuse and their disposal under the processes provided
under the Act, including information on the following:-

(i) number and details of offences reported under the Act;

(ii) whether the procedures prescribed under the Act and rules were followed,
including those regarding timeframes;

(iii) details of arrangements for care and protection of victims of offences under
this Act, including arrangements for emergency medical care and medical
examination; and,

(iv) details regarding assessment of the need for care and protection of a child by
the concerned CWC in any specific case;

35
 Chapter 1: Introduction

(v) use the information so collected to assess the implementation of the

provisions of the Act. The report on monitoring of the Act shall be included
in a separate chapter in the annual report of the NCPCR or the SCPCR.”56

“Even the concerned authorities who are mandated upon to collect data shall share such
data with the Central Government, the State Government, National Commission for the
Protection of the Child Rights and State Commission for the Protection of Child Rights.” 57

The next question crops up whether after adoption of such exhaustive procedure, the
Act achieved its object in curbing sexual offences against the children and protecting the
children from such offences? For this, we have to peruse the data published by National
Crime Records Bureau, Ministry of Home Affairs.
1.10 THE DATA COLLECTED AND PUBLISHED BY NATIONAL CRIME
RECORDS BUREAU, MINISTRY OF HOME AFFAIRS
Data collected for the various years would go a long way to show if the sexual offences
against the children have been curbed in the manner it was to be achieved with the
enforcement of the Act. In the year 2009, total cases reported of the crime against children
were 24,201 whereas it increased to the figure of 26,694 in the year 2010, to 33,098 in the
year 2011, to 38,172 in the year 2012 id est before the enforcement of the Protection of
Children from Sexual Offences Act, 2012. The figure in the year 2013 was astonishing as it
raised to 58,224. Then in the year 2014, it enhanced to 89,423 and in the year 2015 to 94,172.
Further, relevant portions of Tables 4A.1, 4A.2(i), 4A.(ii)of the reports of Crime in India for
the years 2016 and 2017 published by National Crime Records Bureau, Ministry of Home
Affairs reveal as follows:
TABLE 4A.1
Crime Against Children (IPC + SLL)- 2014-2016

2014 2015 2016

Total cases all over India 89423 94172 106958

56
Rule 12(1) of the POCSO Rules 2020.
57
Rule 12(2) of the POCSO Rules 2020.

36
 Chapter 1: Introduction

TABLE 4A.2(i)

Kidnapping &
Abduction of Procuration of
Unnatural
girls to compel minor girls Total IPC
Offenses
her marriage, (Section 366-A Crimes against
(Section 377
etc (Sec. 366 IPC) Children*
IPC)
IPC)

I V R I V R I V R I V R
Total cases
16636 16695 3.7 2465 2488 0.6 1247 1254 0.3 59381 61551 13.3
all over India
IPC Crimes Against Children - 201658
TABLE 4A.2(ii)

SLL Crimes Against Children – 2016

Sexual Assault of
Child Rape (S. 4 &
Children (S. 8 & 10
POCSO (Total) 6 of POCSO Act)/
of POCSO Act)/ S.
S. 376 IPC
354 IPC

I V R I V R I V R
Total cases all
36022 36321 8.1 19765 19920 4.4 12226 12329 2.7
over India

Use of Child for

Under Other
Sexual Harassment (S. 12 of Pornography/ Storing
Sections of POCSO
POCSO Act)/ S. 509 of IPC Child Pornography
Act
Material (S. 14 &15)

I V R I V R I V R
Total cases all
934 941 0.2 47 48 0.0 3050 3083 0.7
over India

TABLE 4A.1

2015 2016 2017

Total cases all over 94172 106958 129032
India

58
I = Cases Reported; V=No. of Victims in registered cases; R = Crime Rate.
Note : * Excludes cases under Sections 354, 376 & 509 IPC, as same are covered under POCSO Act in SLL
Crimes.

37
 Chapter 1: Introduction

Crime Against Children (IPC + SLL)- 2015-2017

TABLE 4A.2(i)

Murder (S.302 Murder with Abetment of

IPC) Rape/ POCSO Other Murder Suicide of Child
(S. 305 IPC)

I V R I V R I V R I V R
Total cases all
1393 1550 0.3 139 151 0.0 1254 1399 0.3 241 247 0.1
over India

IPC Crimes Against Children (Crime Head-wise & State/UT-wise)- 2017

Attempt to Infanticide (S. Exposure and

Foeticide (S. 315
Commit Murder 315 IPC) Abandonment (S.
& 316 IPC)
(S. 307 IPC 317 IPC)
I V R I V R I V R I V R
Total cases all
271 323 0.1 73 73 0.0 115 115 0.0 899 934 0.2
over India

Kidnapping and Abduction of Minor Girls Procuration of Minor Girls

to compel her for marriage (S. 366 IPC) (S. 366 A IPC)

I V R I V R
Total cases all
12124 12565 2.7 3382 3528 0.8
over India

TABLE 4A.2(ii)

S. 4 & 6 of
S. 4 & 6 of
POCSO Act or S. 4 & 6 of POCSO
POCSO Act POCSO Act or
POCSO Act (S. 4 Act or POCSO Act
(Total) POCSO Act (S. 4
& 6)r/w S. 376 (S. 4 & 6)r/w S. 376
& 6)r/w S. 376
IPC (Total) IPC (Boys)
IPC (Girls)

I V R I V R I V R I V R
Total cases all
32608 33210 7.3 17557 17780 3.9 17382 17597 3.9 175 183 0.0
over India

38
 Chapter 1: Introduction

SLL Crimes Against Children (Crime Head-wise & State/UT-wise)- 2017

S. 8 & 10 of POCSO S. 8 & 10 of POCSO

S. 8 & 10 of POCSO Act
Act or POCSO Act Act or POCSO Act
or POCSO Act (S. 8 &
(S. 8 & 10)r/w S. 354 (S. 8 & 10)r/w S. 354
10)r/w S. 354 IPC (Total)
IPC (Girls) IPC (Boys)

I V R I V R I V R
Total cases all
12016 12343 2.7 11899 12224 2.7 117 119 0.0
over India
S. 12 of POCSO Act S. 12 of POCSO Act
S. 12 of POCSO Act or
or POCSO Act (S. or POCSO Act (S.
POCSO Act (S. 12)r/w S.
12)r/w S. 509 IPC 12)r/w S. 509 IPC
509 IPC (Total)
(Girls) (Boys)
I V R I V R I V R
Total cases all
1329 1359 0.3 1293 1322 0.3 36 37 0.0
over India

S. 14 & 15 of POCSO S. 14 & 15 of POCSO S. 14 & 15 of POCSO

Act (Total) Act (Girls) Act (Boys)

I V R I V R I V R
Total
cases all 374 382 0.1 331 339 0.1 43 43 0.0
over India

POCSO Act r/w S. 377 IPC POCSO Act r/w S. POCSO Act r/w S.
(Total) 377 IPC(Girls) 377 IPC (Boys)

I V R I V R I V R

Total cases all

655 664 0.1 147 152 0.0 508 512 0.1
over India

S. 17 to 22 of POCSO S. 17 to 22 of POCSO S. 17 to 22 of POCSO

Act Act (Girls) Act (Boys)

I V R I V R I V R
Total cases all over
677 682 0.2 616 620 0.1 61 62 0.0
India

39
 Chapter 1: Introduction

1.11 CRITICAL ANALYSIS

By way of amendment in the POCSO Act in the year 2019, Section 4(2) was inserted
providing for the classification which in my view is unreasonable and is in violation of Article
14 of the Constitution. Article 14 prohibits class legislation but permits reasonable
classification of persons or things. The acid test was laid down by the Supreme Court in the
case of Anwar Ali Sarkar case59 which provides that two conditions must be fulfilled in
order to pass the test of permissible classification i.e. (a) that the classifications must be
founded on an intelligible differentia which distinguishes those that are grouped together from
other left out of group; (b) that the differentia must have a rational relation to the objects
sought to be achieved by the Act. The differentia which is the basis of classification and
object of the Act are distinct and what is necessary is that there must be nexus between them.
By way of Amendment Act, 2019, the punishment for committing penetrative assault has
been enhanced from 7 years to 10 years and Section 4(2) and (3) has been inserted. Section
4(2) envisages that “whoever commits penetrative sexual assault on a child below age of 16
years shall be punished with imprisonment for a term which shall not be less than 20 years
which may extend to imprisonment for remainder natural life of that person and shall also be
liable to fine.” However, the definition of ‘child’ under the Act is the same as earlier i.e. any
person below age of 18 years.

The classification under Section 4 (2) gives way to the thought process that raping a
child below 16 years is a graver offence whereas raping a child of 16-17 years who may have
same maturity as some children belonging to other class is not considered to be a graver
offence. Thus, the classification introduced is not reasonable classification as it has been made
within the same group i.e. children. The differentia in this classification is vague as there is an
uncertainty in determining the age of maturity factor. For instance, 17 years child may have
same maturity as 15 years old and in some cases, it may be vice versa. In my view, the said
differentiation could have been better if done for the aggravated penetrative sexual assault.

Section 4(1) of the Act provides for punishment of imprisonment of term which shall
not be less than 10 years which may extend to imprisonment for life for the offender of the
penetrative sexual assault. It further states that he shall also be liable for fine. Section 4(2)
provides, “the offender of penetrative sexual assault on a child below age of 16 years shall be
punished with imprisonment for a term which shall not be less than 20 years which may

59
State of West Bengal vs. Anwar Ali Sarkar Sahib 1952 AIR 75.

40
 Chapter 1: Introduction

extend to imprisonment for remainder natural life of that person and shall also be liable to
fine.”

New sub section (3) to Section 4 has been added stating that the fine imposed under sub
section (1) shall be just and reasonable and be paid to the victim to meet the medical expenses
and rehabilitation of such victim. But it does not speak about fine imposed by Section 4(2).
Whether it can be termed that the fine imposed under Section 4(2) should not necessarily be
reasonable and should not be used for rehabilitation of the victim?

Sections 11 and 12 of POCSO Act, 2012 state as “a person is said to commit sexual
harassment upon a child when such person with sexual intent ……..” Further, it has been
explained in section 11 that any question which involves “sexual intent” shall be a question of
fact. The question involving intention is very difficult to prove before the Court. So, a
question crops up whether an offender performing the Act mentioned in Section 11 without
sexual intent will not amount to sexual harassment? Even the term “sexual intent” is not used
under Section 354A IPC which describes the offence of sexual harassment.

Further, Section 18 of the Act provides the maximum penalty as ‘one half of life
imprisonment’ in a case where a person attempts to commit any offence punishable under the
Act or causes such an offence to be committed and in such attempt, does any act towards the
commission of the offence. The term ‘one-half of life imprisonment has been defined in the
case laws. In the case law of Chandrakant Vithal Pawar vs. State of Maharashtra60, this
term has been clarified as follows in paragraphs no. 31 and 32:

“31. As noted above, minimum sentence of imprisonment for the offence of rape under
Section 376(2)(a) is rigorous imprisonment for 10 years. Therefore, the minimum sentence
which may be awarded for attempt to commit rape would be rigorous imprisonment for five
years. However, the maximum sentence for the offence of rape under Section 376(2)(a) of the
Penal Code, 1860 is life imprisonment. Therefore, the maximum sentence for attempt to
commit rape could be half of life imprisonment.

32. Section 57 of the Penal Code, 1860 provides that in calculating fractions of terms of
punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty
years. In view of this, for the offence of attempt to commit rape punishable under Section
376(2)(a) read with Section 511 maximum sentence would be rigorous imprisonment for 10
years.”

60
2011 SCC Online Bom1731.

41
 Chapter 1: Introduction

It has been followed by the High Court of Bombay in Suresh@ Pintya Kashinath
Kamble vs. The State of Maharashtra.61 There is disarray regarding the life imprisonment
prescribed under the POCSO Act and introduced by the amendment in the year 2019. Earlier,
the punishment for committing penetrative sexual assault was 7 years which could extend to
imprisonment of life and also fine. However, by way of Amendment Act 2019, the minimum
term of punishment was enhanced from 7 to 10 years for penetrative sexual assault. Even the
term of life imprisonment has been used under Section 6(1) of the Act as punishment for
aggravated penetrative sexual assault. However, now after amendment in the year 2019, the
imprisonment for life under Sections 4(2) & 6(1) of the Act shall mean imprisonment for the
remainder of natural life of that person. Section 18 of the Act prescribes punishment for
attempt to commit any offence which may extend to one-half of the imprisonment for life or
one-half of the longest term of imprisonment. Now question crops up how one-half of life
imprisonment for remainder of natural life of that person can be construed?

Section 27(2) of POCSO Act, 2012 envisages that “in case of female child victim, the
medical examination should be done by a female doctor” whereas “Section 166A of Cr.P.C.
mandates the Government Medical Officer on duty to examine the rape victim without fail.”
These conflicting legal provisions raise the question what to do when female doctor is not
available for medical examination of a girl child victim?

The Amendment Act has also introduced the death penalty as a punishment. The
sentence of death becomes troublesome when perpetrator is a family member of victim. There
are 94% of reported cases that have been registered upon the persons known to the victim.62
From a realistic view, there is less chance of reporting the rape cases committed by any
member of the family or known person i.e. incest rape if there is a chance that the punishment
would take the life of perpetrator.

Steep hike in number of cases of elopement of adolescents has been observed. Whatever
may be the reason for that, the problem lies when in such cases, both the parties are equally
liable but only the boy may be under the age of 18 years falling under the definition of ‘child’
is booked as an accused. The Act is otherwise gender neutral but the girl may be elder than
the boy but below the age of 18 years is termed as victim by default and the boy as
perpetrator. If this is a scenario, how the Act can be termed as gender neutral?

61
Appeal no. 272/2022 D.O. 23.9.2022.
62
National Crime Record Bureau (NCRB) in India, in 2016.

42
 Chapter 1: Introduction

Section 34 of the Amended Act provides that when any offence is committed by a child,
such child shall be dealt with under the JJ Act, 2015 and any question regarding the age of
such child would be determined by the Special Court. However, no methodology to determine
the age of a child victim has been provided. Only there are case laws stating that the
procedure to determine the age of a child victim cannot be deciphered from the procedure of
determination of age of the child in conflict with law.

These are some flaws in the Act itself. The object of the Act is to protect the children
from sexual offences but due to some lacunas, sometimes, the accused/perpetrator takes the
benefit.

1.12 AIMS AND OBJECTIVES OF THE THESIS

Thus, from a perusal of above figure of crime rate against children, it culls out that the Act
has not been able to achieve its aim and we still lack implementation and hence, this paper
aims at analyzing critically the Protection of Children from Sexual Offences Act, 2012 and
the loopholes of the same with the hope of making a change in the lives of these angels who
have already faced trauma at such a tender age by making the procedure of dispensation of
Justice simplicitor, by adopting other innovative ideas in pursuing the cases. The graph of
sexual offences against the immature and vulnerable class of our society i.e. Children of our
country has shown an increase in such like offences. To cap it all, the cases which have been
reported lead to acquittal of the accused owing to the following reasons:

1) Cases of sexual offences against children are not being reported which could be
sometimes because the perpetrator is strong physically or financially or in power;
sometimes the perpetrator is related to the victim, is a person of trust id est incest
abuse and thus, if the victim comes forward and discloses the act, either the
version of the victim is not believed or the victim is prevailed upon in the name of
honour of the family. The status of the child is again the same if the accused of
incest abuse manages his acquittal by prevailing upon the witnesses, may be by
way of emotional blackmail or again financial blackmail being in a better position
and sometimes, maybe the sole bread earner of the family.

2) In most of the cases which are reported, the victims or the persons upon whom
victims are dependent, resile or do not support the case. It is again due to many
reasons which could be due to pressure of society or family or pressure tactics of
the perpetrator, complexities of the procedure, financial restraints and culture of
compromise. Although the law has developed on the aspect that the conviction

43
 Chapter 1: Introduction

can be there on the sole statement of the child victim as he/she cannot be termed
as an accomplice but still the testimony of the child witness being a vulnerable
witness is expected to have been corroborated by ipsi dixit of some other witness.
However, owing to many reasons as discussed above, the witnesses do not support
the case and thus, resile from their previous statements recorded during the
investigation.

3) Though the Act has been tried to be made child friendly, the method of recording
the testimony of the child prescribed under the law has not achieved the objective
with which it came into force. Our law is making the victims more mature than
their age and snatching their innocence and childhood. She/he has to undergo the
pain of narration of the episode again and again which is torturous and undergoing
the pain/trauma of fateful incident repeatedly. Unfortunately, the barriers to
justice faced by the child victims have remained as steadfast as they were earlier.
The traditional treatment of children in the Courts and their evidence is
unsatisfactory.

4) The provisions of the Act do not override the customary law as the custom of
child marriage prevails in some areas of the country or some families and even
such marriages are not void ab initio by the statutory law.

5) The method of determination of the age of the child who has committed the
offence has to be dealt with under the provisions of the Juvenile Justice (Care &
Protection of Children) Act, 2015 but the procedure for assessment of age of child
victim is not prescribed under the Statute. However, there are precedents by way
of judicial pronouncements about the same.

6) Misuse of the provisions of the Act in consent cases id est the eventuality where
the victim is mature enough to comprehend the nature of the consequences of the
act performed by the victim.

7) The medical of the child victim and the accused are not being conducted as
prescribed under the rules and some rules are required to be amended. The need
for special training to be imparted to the doctors for medical examination of the
child victim and the accused of sexual offences.

8) The investigation in the sexual offences is not being conducted as required and the
major lacunas are left to give the handle in the hands of the accused to use the

44
 Chapter 1: Introduction

same for his acquittal during trial. There is need for special training to be imparted
to the Investigating Officers who are competent to investigate such like offences.

9) No special training is being given to the Presiding Officers or the officials of the
Court staff who are attached to the Special Court dealing in cases of sexual
offences.

10) Special Public Prosecutors are to be notified by the State Government for every
Special Court for conducting cases only under the provisions of this Act and the
said person must be having the practice of not less than seven years as an
advocate.63 However, the said provision is not being given effect in its letter and
spirit.
The present research endeavours to congregate works on child rights, rather minor
victims and the dilemmas in the criminal justice delivery system. The sexual abuse of the
child despite being significant is not open to public conversations. The view of the majority
population is that child sexual abuse only happens among the poor and the ethnic minorities.
It is still a taboo in India. One of the reasons lies in a conservative family and community
structure which does not allow to talk about sex education and sexuality at all. It was also
noticed that parents do hesitate to speak to children about sexuality as well as about physical
and emotional changes which take place during their adolescence. As a consequence, the child
does not repose confidence in anybody and does not come out with the pain the child is
suffering. This silence encourages the perpetrator to continue the abuse and usually kids do
not discern that they are transpiring to be the victims of abuse. As per the research on
"Women's Experiences of Incest Awareness concerning child sexual abuse", it did not occur
until the late 20th century. Child sexual abuse was first broadly uncovered in open in the
beginning of 1970s where feminists drove an anti-rape campaign and adopted children as
being the victims of sexual abuse as one precedent of an authoritarian patriarchal culture.
Famous figures and other non-feminists soon joined the hardihood fronting sexual abuse with
children during the 1970s & 1980s. Politicians contributed by creating governmental policies
to protect children from sexual offences. Various mediums started covering many reports of
childhood sexual abuse. Most people who told their childhood traumas were now adults and
were elaborating crimes that were committed in the past. The narrated personal stories made
sexual abuse a concern for the public encouraging them to get involved in creating policies to
protect the children. There was a study on Women's Experiences of Incest and Childhood

63
The Protection of Children from Sexual Offences, s. 32.

45
 Chapter 1: Introduction

Sexual Abuse which was conducted by RAHI.64 It was stunning that some of the respondents
did not realize that they had been abused during their childhood till the questionnaire was
administered to them.

This being the dynamics and dimension of the problem, the present thesis is focused to
make a socio-legal analysis of the Protection of Children from Sexual Offences Act, 2012,
child abuse which is existing in different forms and how they have been dealt in existing
legislation and governmental policies and what is the scope of its effective implementation.

This being the dynamics and dimension of the problem, the present thesis aims to
achieve the following objectives:

1. To study and analyse the works on child rights furthermore minor victims and the
contiguous dilemmas in the criminal justice delivery system;

2. To study child abuse existing in different forms and how they have been dealt in
existing legislation and governmental policies and what is the scope of its effective
implementation;

3. To critically analysse the Law relating to the protection of children from Sexual
Offences including POCSO Act 2012;

4. To examine the decided cases and guidelines of the Courts for protection of
interest of the child victim;

5. To make a socio-legal analysis of the Protection of Children from Sexual Offences

Act, 2012,
1.13 HYPOTHESIS
1. Sensitized Investigating Officer/speedy and improved tools of investigation help the
legal system in effective implementation of provisions for protection of the children
from sexual offences.

2. The child friendly trial procedures including recording of evidence of child vicim in pre
trial stage help the child to recover fast and prevent psychological disorders and in
ensuring conviction of the accused.

3. Support system by State/Society help the child victim in early rehabilitation and re-
integration in the society.

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“RAHI Foundation, established in 1996, is a pioneering organization focused on women survivors of Incest
and Child Sexual Abuse (CSA).”

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4. Role of other functionaries such as medical professionals, sexual workers et Cetera is

crucial to provide child friendly environment.
1.14 RESEARCH QUESTIONS
Research enquiry of this study proves into some key aspects of the Proection of Children from
Sexual Offences Act, 2012.

1. Whether the law relating to reporting and investigation into child sexual offences
preserve the child victim’s interests ?

1.1. Whether the law is sufficient to inspire confidence in a child to come forth and
report the sexual abuse suffered by a child victim ?

1.2. Whether the investigation procedure has been made more scientific and friendly
for the child victim ?

1.3. Whether the Investigating Officers are playing their roles in an effective manner
and spirit that are assigned to them ?

2. Whether the trial procedure is oriented towards protection of interest of child victim ?

2.1. Whether the law and procedure relating to recording of evidence of victim are
child friendly and victim oriented ?

2.2. Whether the support system by the State is an efficient mechanism to overcome
the trauma experienced by the child victim and to rehabilitate the child victim ?

2.3. Whether the law and procedure protect the rights and interest of accused way too
far to the disadvantage of the victim ?

2.4. Whether the perpetrator/accused gets the benefit of his dominant position vis a vis
child victim during the trial ?

3. Whether the role of other stakeholders such as doctors, social workers, counsellors
is oriented towards the protection of interest of child victim ?

4. Whether the enforcement of the Protection of Children from Sexual Offences Act,
2012, has been successful in achieving the purpose, for which it was enacted?
1.15 RESEARCH METHODOLOGY
The research is doctrinal and empirical divided into two aspects/phases. In the phase,
exploratory and doctrinal research has been carried out. The primary sources of information
like statutory text, decided cases, case studies, case files. Various Commission reports,
international conventions and other such material have been relied upon to study the

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implementation and enforcement of the POCSO Act, 2012. The secondary sources like
research article, commentaries and opinions have also been studied and quoted as supporting
and corroborating material. The experience of the scholar gained while holding the current
position of Additional District & Sessions Judge and the former head of the Special Court of
the POCSO Act has been of great help in identification of the problems and offering
constructive suggestions. In the second phase of the study, the researcher has collected
primary data through empirical survey on the “issues and challenges in implementation of the
POCSO Act.” The data has been collected from the Judicial Officers, Police Officers and
Public Prosecutors. The respondents include the stakeholders from the States of Punjab and
Haryana upon whom a structured questionnaire was circulated through Google forms. Then
the data has been analysed through accepted data analysis methods to draw valid conclusions.

1.16 SIGNIFICANCE OF THE STUDY

The present research is an attempt to serve the society by suggesting the means to
scientifically investigate the case, to help the child in overcoming the trauma and to expedite
the trial and better procedure for conducting the trial in the cases under the POCSO Act, 2012.
The researcher has made an attempt to make suggestions for incorporation of a better system.
1.17 LIMITATIONS OF THE STUDY
The following are the limitations of the study:

 As the data is self-reported, it cannot be objectively verified.

 As the data is collected through Google form i.e. online platform, the stakeholders being
not so tech-savvy, could not participate at the maximum.

 Many respondents showed their unwillingness to share the information as the area of
research is sensitive.
1.18 CHAPTERIZATION
CHAPTER 01: Introduction

It deals with history of rights of a child, conceptualization of child sexual offence and its
types. Apart from global, Indian perspective qua child sexual abuse has been dealt in laying
more stress on provisions of the POCSO Act, 2012 and its critical analysis. This chapter also
reflects at aims and objectives of the thesis, hypothesis, research questions, research
methodology adopted, significance of the study and its limitations and scope of further work.

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CHAPTER 02: Reporting and Investigation into Sexual Offences against Children

This chapter has been authored to critically analyse the investigation being conducted under
the POCSO Act, 2012. The gaps which are usually left by the Investigation Officers have
been discussed. Survey was conducted upon the Investigating Officers with the aim to
sensitize them on the gaps left by them and about the provisions under the Act

CHAPTER 03: Trial of persons, accused of sexual offences against children

This chapter discusses about the manner in which the trials are being conducted under the
Act, the loopholes left by the Special Courts which could lead to secondary traumatization of
the child victim. Under this chapter, survey was conducted upon Special Public Prosecutors to
sensitize them about the provision of the Act with the aim that they could assist the Special
Courts in achieving the object of the Act.

CHAPTER 04: Support and rehabilitation of Child Victims

In this chapter, the provisions relating to compensation under Cr.P.C. and the POCSO Act
have been discussed. Even survey was conducted upon the Presiding Officers of the Special
Courts and Principal Magistrates of Juvenile Justice Boards who deal with the cases under the
Act to sensitize them about the latest law on the subject with the aim to provoke the relevant
provisions of the Act in appropriate cases to achieve the object of the Act.

CHAPTER 05: Role of other stakeholders in the cases of Child Sexual Abuse

In this chapter, roles of all other stakeholders apart from Investigating Officers, Special Public
Prosecutors and Special Courts have been discussed and the manner in which they can
provide assistance to the child victims and help them in rehabilitation and reintegration into
the society.

CHAPTER 06: Conclusion and Suggestions.

This chapter deals with conclusion of the entire thesis, suggestions to all the stakeholders,
how they can make their active contributions and recommendations to the Government, what
changes are required and what more can be done for achievement of the goal of the Act.

1.19 SCOPE FOR FURTHER STUDY

 The research can be carried out with a panoramic view of laws on the child sexual abuse
around the world.

 A study can be done with regard to the fact which strata of the society is involved in the
reported cases?

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 The research can be conducted regarding study of psychology of the perpetrators at the
time of commission of offence.

 A detailed study can be conducted on psychology of the child victims after the
commission of offence and the methods adopted for their rehabilitation and
reintegration into the society.

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