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Protection of Children from Sexual Offences Act

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Child sexual abuse laws in India have been enacted as part of the child protection policies of India. The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill (POCSO), 2011' regarding child sexual abuse on 22 May 2012, making it an Act.[1][2][3][4] A guideline was passed by the Ministry of Women and Child Development, India. The rules formulated by the government in accordance with the law had also been notified on the November 2012 and the law had become ready for implementation.[5] There have been many calls for more stringent laws.[6][7]

India has one of the largest population of children in the world. Census data from 2011 shows that India has a population of 472 million children below the age of eighteen.[8][9] Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Indian constitution,[10][11] and also mandated given India's status as signatory to the UN Convention on the Rights of the Child.

Laws before POCSO

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Goa Children's Act, 2003,[12] was the only specific piece of child abuse legislation before the 2012 Act. Child sexual abuse was prosecuted under the following sections of Indian Penal Code:

  • I.P.C. (1860) 375- Rape
  • I.P.C. (1860) 354- Outraging the modesty of a woman
  • I.P.C. (1860) 377- Unnatural offences

However, the IPC could not effectively protect the child due to various loopholes like:[citation needed]

  • IPC 375 does not protect male victims or anyone from sexual acts of penetration other than "traditional" peno-vaginal intercourse.[13]
  • IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a compoundable offence. Further, it does not protect the "modesty" of a male child.[14]
  • IPC 377 does not define the term "unnatural offences". It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalize sexual abuse of children.[15]

The Protection of Children from Sexual Offences Act, 2012

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Offences under the Act on 14 November 2012

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The Protection of Children from Sexual Offences Act (POCSO), 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.[1]

The POCSO Act specifies a variety of offences under which an accused can be punished. It recognizes forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too. Offences under the act include:

  • Penetrative Sexual Assault: Insertion of penis/object/another body part in child's vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
  • Sexual Assault: When a person touches the child with sexual intent, or makes the child touch them or someone else
  • Sexual Harassment: passing sexually cultured remark, sexual gesture/noise, repeatedly following, flashing, etc.
  • Child Pornography
  • Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault[16]

The act is gender-neutral, both for children and for the accused. With respect to pornography, the act also criminalizes watching or collection of pornographic content involving children. The Act makes abetment (encouragement) of child sexual abuse an offence. In 2019, the POCSO Act was amended and made more stringent, the amendment raised minimum punishment for penetrative assault from 7 to 10 years and 20 years if the victim was below 16 years in age, with a maximum punishment of life imprisonment with a provision for the death penalty for aggravated penetrative assault.[17][18][19]

Child-friendly process

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It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The child friendly process aims to minimize trauma felt by the victim, eliminate the possibility of revictimization and to protect against intimidation.[20]

A Victim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age.[21]

Child Welfare Committee

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A sexually abused child is considered as "child in need of care and protection" under Juvenile Justice (Care and Protection of Children) Act, 2015.[22] Police officer should therefore inform the Child Welfare Committee about every case under the Act within 24 hours.[23] CWC can appoint a support person for the child who will be responsible for psycho-social well-being of the child. This support person will also liaise with the police, and keep the child and child's family informed about progress in the case. Reporting can be done through the toll free number 1098.[24]

Contention around implementation of POCSO

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Definition of child

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The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability.

A recent case in SC had been filed where a woman, whose biological age was 38 years but her mental age was 6 years, was raped. The victim's advocate argued that "failure to consider the mental age will be an attack on the very purpose of act." SC held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick, rather than referring to a person having mental retardation. The court said while awarding maximum compensation to a rape victim who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well. The victim suffered from cerebral palsy.[25][26]

Contradiction with the Medical Termination of Pregnancy Act, 1971

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The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.

Mandatory reporting

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According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.[27] Many child rights and women rights organizations have criticized this provision.[28] According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.

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Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim is often unrepresented.[29]

Criminalization of consensual relationships

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The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual act will also be punished under this law, this coupled with the need for mandatory reporting has led to the criminalization of consensual relationships between adolescents.[30] This is especially a concern where an adolescent is in a relationship with someone from a different caste, or religion. Parents have filed cases under this Act to 'punish' relationships they do not approve of.[31] In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalize consenting relationships at the request of the parents of the girl.[32]

In contrast to the 2011 act, an earlier draft of the bill in 2001 did not punish consensual sex if at least one of the partners were above the age of 16, as did section 375 of the Indian Penal Code. The change from this to the age of 18 in the final act was criticized at the time as it was feared that this would allow and encourage unjustified complaints aimed at penalizing consensual relationships.[33]

Landmark Judgments under POCSO Act, 2012

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Supreme Court of India

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  • Sakshi v. Union of India[34][35]
  • Independent Thought v. Union of India[36]
  • Attorney General for India v. Satish and another (2021)[37]
  • Alakh Alok Srivastava v. Union of India and Others (2018)[38]

Cases in news

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Organisations working with victims of child sexual abuse

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See also

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References

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  1. ^ a b Protection of Children Against Sexual Offences Bill (POCSO), 2011Archived October 5, 2023, at the Wayback Machine
  2. ^ "Child Sexual abuse and law". ChildLineIndia. Dr.Asha Bajpai. Archived from the original on 8 April 2019. Retrieved 17 July 2019.
  3. ^ "Parliament passes bill to protect children from sexual abuse". NDTV. 22 May 2012. Archived from the original on 1 October 2014. Retrieved 23 May 2012.
  4. ^ The Protection of Children from Sexual Offences Act, 2012 Archived 9 October 2020 at the Wayback Machine Kerala Medico-legal Society website
  5. ^ "Law for Protecting Children from Sexual Offences". Archived from the original on 3 January 2014. Retrieved 3 January 2014.
  6. ^ Taneja, Richa (13 November 2010). "Activists bemoan lack of laws to deal with child sexual abuse". DNA India. Archived from the original on 16 May 2012. Retrieved 14 May 2012.
  7. ^ "Need stricter laws to deal with child abuse cases: Court". The Indian Express. 12 April 2011. Retrieved 14 May 2012.
  8. ^ "Census of India Website : Office of the Registrar General & Census Commissioner, India". www.censusindia.gov.in. Archived from the original on 22 May 2016. Retrieved 28 September 2018.
  9. ^ Punj, Shweta (3 November 2017). "Human trafficking for sex: Thousands of girls live in slavery while society remains silent". India Today. Archived from the original on 15 December 2018. Retrieved 13 December 2018.
  10. ^ "Article 21, Protection Of Life and Personal Liberty". Constitution Of India, CLPR. Archived from the original on 13 August 2022. Retrieved 29 July 2022.
  11. ^ "Article 21 in The Constitution Of India 1949". indiankanoon.org. Archived from the original on 27 September 2018. Retrieved 28 September 2018.
  12. ^ "Childline India Foundation : Documents – Cause ViewPoint – Child Sexual Abuse – The Law and the Lacuna". Childlineindia.org.in. 19 January 2010. Archived from the original on 15 May 2012. Retrieved 14 May 2012.
  13. ^ IPC 375 Archived June 13, 2021, at the Wayback Machine
  14. ^ IPC 354Archived December 12, 2023, at the Wayback Machine
  15. ^ IPC 377 Archived November 7, 2023, at the Wayback Machine
  16. ^ Ajeet, Kumar. "What is the POCSO Act? | Key Provisions, Challenges". Retrieved 16 August 2023.
  17. ^ "Explained: How the POCSO Act has been amended". The Indian Express. 10 August 2019. Retrieved 12 August 2023.
  18. ^ "Child abuse: More death penalty, longer jail terms". The Indian Express. 29 December 2018. Retrieved 12 August 2023.
  19. ^ "Government approves changes in POCSO Act, includes death penalty for sexual offences against children". The Economic Times. 10 July 2019. ISSN 0013-0389. Retrieved 12 August 2023.
  20. ^ Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 (PDF). Ministry of Women and Child development. September 2013. pp. 64, 65.
  21. ^ "Press Information Bureau". Archived from the original on 9 April 2022. Retrieved 9 April 2022.
  22. ^ http://cara.nic.in/PDF/JJ%20act%202015.pdf Archived 2 April 2019 at the Wayback Machine, Section 2(14)
  23. ^ Section 19
  24. ^ http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=284&lid=722 Archived 4 March 2019 at the Wayback Machine Rule 4(7)
  25. ^ Mahapatra, Dhananjay (3 March 2017). "POCSO: Is a 40-year-old woman with mental age of six entitled to compensation under POCSO?". The Times of India. Archived from the original on 9 March 2017. Retrieved 6 June 2019.
  26. ^ "Does 'age' encompass mental age?". The Hindu. 10 March 2017. Archived from the original on 6 July 2022. Retrieved 6 June 2019.
  27. ^ Section 20
  28. ^ JILSblog. "Mandatory Reporting Under POCSO: Are We Ready?". www.legallyindia.com. Archived from the original on 23 March 2019. Retrieved 20 August 2019.
  29. ^ Priyangee (18 May 2018). "India's justice system hardly cares about what the victim wants, and this must change". Law| Human rights| Education. Archived from the original on 27 August 2018. Retrieved 20 August 2019.
  30. ^ Jain, Mahima. "The law that criminalises sex between young people in India". Scroll.in. Archived from the original on 2 March 2022. Retrieved 2 March 2022.
  31. ^ "Love and Sex in the Time of the POCSO Act, 2012 • In Plainspeak". In Plainspeak. 1 June 2014. Archived from the original on 28 June 2019. Retrieved 20 August 2019.
  32. ^ S, Rukmini (22 December 2015). "Why the FIR doesn't tell you the whole story". The Hindu. ISSN 0971-751X. Archived from the original on 26 January 2022. Retrieved 2 March 2022.
  33. ^ "Good act, bad provision". The Hindu. 26 May 2012. Archived from the original on 5 May 2021. Retrieved 9 September 2014.
  34. ^ "Sakshi v. Union of India". Lexpeeps. 6 December 2020. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
  35. ^ barelawindia (3 July 2021). "Sakshi vs Union of India". BareLaw.in. Archived from the original on 20 August 2022. Retrieved 29 July 2022.
  36. ^ "Independent Thought vs. Union of India and Anr". privacylibrary.ccgnlud.org. Archived from the original on 4 July 2022. Retrieved 29 July 2022.
  37. ^ "Skin To Skin Touch Not Essential For Offence Of Sexual Assault Under POCSO Act – Supreme Court - Trials & Appeals & Compensation - India". www.mondaq.com. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
  38. ^ "Alakh Alok Srivastava v Union of India and Others on 31 January 2018 - Judgement - LawyerServices". www.lawyerservices.in. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
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