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1st Maharishi Markandeshwar

University National Paper


Presentation Competition
Topic:- Law in a Changing World: A CRITICAL ANALYSIS OF POSCO ACT, 2012.

Submitted by:-

Sehaj Sofat & Jasveen Singh

Pursuing B.A. LLB

College Of Legal Studies,(UPES)

jasveens78@gmail.com
ABSTRACT

Law in a Changing World: A CRITICAL ANALYSIS OF POSCO ACT, 2012

A child is an invaluable asset of any society and plays a major part in the growth of the nation. They are most

innocent in their childhood but there exist some demons into the society that could be near and dear ones that

ruin their life by sexually exploiting them, in such a situation, the parents, media and educational institution

must take initiative to teach children about their rights and make awareness amongst them. In spite of having

various kinds of Acts and laws which protect the rights of the children, still the rate of crime against the

children are increasing at a constant rate every year.

Exploiting a child sexually is a most terrible act one can do, which results in a child leading a depressed life in

future and sometimes lead to suicide.

This research paper provides what are the different measures that can be taken to avoid this type of heinous

crime and how The POCSO Act, 2012 protected children from various offences. At last it will talk about the

role of NGOs in protecting the rights of children and drawbacks of the Act.
Introduction:-

India is second populous country in the world and according to the latest census; it is revealed that it’s a home

of 17% of the world population. Nearly nineteen percent of the world’s children live in India, which constitutes

42 percent (more than one-third) of India’s total population and around 50 percent of these children are in need

of protection. Child Sexual Abuse (CSA) has been a hidden problem in India, largely ignored in public

discourse and by the criminal justice system. Child sexual abuse has become an epidemic which is spreading all

over the society either higher class or, lower class and attacking the younger ones. Pain and tissue injury can

heal with the passage of time, but psychological and medical consequences still leave scars on individual life.1

It reflects itself in different forms, including physical and psychological aggression, rape and sexual abuse, and

takes place at home, at neighbourhoods, at school, at work and in legal and child protection institutions. Abuse

tends to be transmitted from one generation to the next, and the individuals most often responsible are parents

or other adult members of the household.

Until recently, CSA was not acknowledged as a criminal offence; rape was the main, if not the only, specific

sexual offences against children recognised by law in India. In the absence of specific legislation, a range of

offensive behaviours such as child sexual assault (not amounting to rape), harassment, and exploitation for

pornography were never legally sanctioned. Therefore, to deal with such sexual offences against children, the

Government has brought in a special law “The Protection of Children from Sexual Offences Act, 2012”. The

Act has come into force with effect from 14thNovember, 2012 along with the Rules framed there under. This

Paper highlights the distinguishing features of POCSO and light upon how, this act gives protection to children

against a range of offences. In this reflexive piece, we begin by briefly discussing the prevalence of CSA in

India and the legal response to it. At last, the paper will highlight the drawbacks of the Act.

Child Sexual Abuse in India:

CSA remains a taboo, but it’s a very real problem in India and the situation is aided by the absence of effective

legislation and the silence that surrounds the offence. Majority of people feel this is a largely western problem

and does not happen in India. The definition of child sexual abuse varies from country to country. Abusive acts

1
Ainsworth, F. (2002). Mandatory reporting of child abuse and neglect: does it really make a difference? Child and Family Social
Work, 7, 57–63.
against children fall under the purview of law in almost all developed nations. In India, it exists in many forms,

but the laws are still ambiguous and most children suffer in silence. In India, which places a high premium on

chastity of women and yet has the largest number of child sex workers in the world, there is no single, specific

definition of child abuse.2 Disbelief, denial and cover-up to preserve family reputation has made child sexual

abuse an invisible crime in India. In fact, in India it is as old as the joint family system and patriarchy.

Statistics:

According to WHO, one in every four girls and one in every seven boys in the world are sexually abused. 3

Virani (2000) states, the WHO found that at any given time, one of ten Indian children is the victim of sexual

abuse. But Lois J. Engel Recht, a researcher quotes studies showing that over 50 per cent of children in India

are sexually abused, a rate that is higher than in any other country.

Extent of the Problem:

Reliable estimates are hard to come since this is a furtive form of abuse, often causing victims to suffer in dark

and claustrophobic silence. To find out the extent of child abuse in India, The first ever National Study on Child

Abuse was conducted by the Ministry of Women and Child Development, covering 12447 children, 2324

young adults and 2449 stakeholders across 13 states. In 2007 it published the report as "Study on Child Abuse:

India 20074." The survey, covered different forms of child abuse i.e. physical, sexual and emotional as well as

female child neglect, in five evidence groups, namely, children in a family environment, children in school,

children at work, children on the street and children in institutions.

7This study brought out some shocking facts, and its main findings in relation with sexual abuse are:

“Sexual abuse was reported by 53.22% children. Among them 52.94% were boys and 47.06% girls 21.90% of

child respondents faced severe forms of sexual abuse, 5.69% had been sexually assaulted and 50.76% reported

other forms of sexual abuse”.

• AP, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both sexes, as well as the

highest incidence of sexual assaults.

2
“Study on child Abuse in India 2007” (PDF), published by the Govt. of India (Ministry of Women & Child Development)
3
4 “Study on Child Abuse India 2007 (PDF) Published by Govt. of India (Ministry of women & child development)”.
4
Ibid
• The highest incidence of sexual assault was reported in children on street, at work and in institutional care.

• 50% abusers were known to the child or in a position of trust and responsibility.

• Most Children did not report the matter to anyone.

• More than 53% children report facing one or more forms of sexual abuse and boys were equally at risk as

girls.

• Almost 22% faced severe sexual abuse, 6% sexually assaulted.

• 50% of sexual offenders were known to the victim or were in positions of trust (family member, close relative,

friend or neighbour).

• 5-12 year’s group faced higher levels of abuse, largely unreported.

• Severest sexual abuse in age group of 11- 16 years, 73% of sexual abuse victims were in age groups of 11-

18years.

• The age wise distribution showed that though the abuse started at the age of 5 years, it gained momentum 10

years onward, peaking at 12 to 15 years and then starting to decline.

• Another study on child abuse in Kolkata, Elaan, an NGO, found that four out of 10 boys faced sexual

harassment in school. Generally the age of maximum abuse is between 9 to 12 years. The national study found

that the abuse gained momentum at the age of 10 and peaked between 12 to 15.

• This shows that the teenagers are most vulnerable.

Across the country, every second child was being subjected to other forms of sexual abuse and every fifth child

was facing severe forms of sexual abuse. The Study also acknowledges that child sex abuse takes place in

schools. One out of two children in schools has faced sexual abuse. And overall, more boys than girls face

various forms of sexual abuse ranging from inappropriate touch, exposure to pornography or violent sexual

assault. The abuser could be from the peer group or an older student. Incest is by far the most common but least

discussed form of sexual abuse that young girls suffer in India today.
In a study of a 1000 girls from 5 different states in India, 50% of the girl had been abused when under 12 years

of age, 35% between the ages of 12- 16 years of age. One million children are trafficked into prostitution, in

Asia every year.5

According to the federal police In India around 1.2 million children are believed to be involved in prostitution.

A CBI statement said that studies and surveys sponsored by the ministry of women and child development

estimated that about 40% of all India's prostitutes are children. According to Brown, (2000) there are an

estimated 2 million child prostitutes (under the age of fifteen) at work in India6. Over 15 million children are

working as bonded labour, in India. Twice as many girls than boys engaged in child labour. Child labourers and

young domestic workers are most often abused sexually by the employers or other adults. Increased risk of

HIV/AIDS from adult prostitutes, leads to an increased demand for younger child prostitutes, Sex tourism and

Child marriages.

Legal response to CSA:

Until 2012, the only sexual offences against children recognised by the law were covered by three sections of

the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse

without consent—section 376), outraging modesty of a woman (unspecified acts—section 354) and unnatural

acts defined as “carnal intercourse against the order of nature with any man, woman or animal” (anal sex,

homosexuality or bestiality—section 377). Consequently, other forms of non-penetrative sexual assaults,

harassment and exploitation were not explicitly recognised as crimes and therefore not recorded (assuming they

were reported). Increased activism around child protection issues in the media and public discourse might partly

account for the Government of India passing a special law called, ‘The Protection of Children from Sexual

Offences (POCSO) 2012’. This Act criminalises sexual assault, sexual harassment, and pornography involving

a child (less than 18 years of age) and mandates the setting up of Special Courts to expedite trials of these

offences.

5
Barth, J., Bermetz, L., Heim, E., Trelle, S., & Tonia, T. (2013). The current prevalence of child sexual abuse worldwide: a systematic
review and metaanalysis. International Journal of Public Health, 58, 469–483.

6
Raman, Surekha. (1995). "Violation of Innocence: Child Sexual Abuse and the Law." The Lawyers Collective; (10 &11),
OctoberNovember. p. 4-7
Since 2001, there has been a gradual but steady rise in recorded incidents of sexual abuse i.e. child rape.

Although there is no evidence to indicate that globally the prevalence of CSA has been going up over the years

(Barth et al. 2013), we might hypothesize that increased reporting in India over this period might be the result

of greater public awareness, education and a more sensitive criminal justice response to CSA. Following the

enactment of POCSO, the number of offences registered under rape itself went up 44 % nationally and 68 % in

the state of Maharashtra within a year, lending support to the hypothesis. Further, detailed figures from

Maharashtra provided by the second author indicate that total registered crime under POCSO was 2540

offences in 2013 and 3858 offences in 2014, amounting to a 51 % increase in 1 year.7

Distinctive features of POCSO:

POCSO 2012 does not use the term ‘rape’ more commonly used and also does not confine penetrative sex to

penile penetration. Instead, it broadens the offence termed ‘penetrative sexual assault’ (section 3) to include

oral sex, as well as, insertion of any object into anus, mouth or vagina, in addition to penile penetrative sex. In

State vs Pankaj Choudhary 2011, (pre-POCSO) the accused could only be prosecuted for ‘outraging the

modesty of a woman’ for digital penetration of the anus and vagina of a 5 year old child. The prosecution was

unsuccessful in proving rape as the High Court ruled that digital penetration was not recognised as an offence

under the India Penal Code (Delhi High Court 2011). The addition to the definition of penetrative assault has

increased the cover of protection for children.

POCSO also criminalises a range of behaviours as being sexual assaults, short of penetration (section 7).

Additionally, the offences of ‘aggravated’ penetrative and non-penetrative sexual assault is made more serious

and attract stronger penalties (sections 5, 9) when committed by a specified range of perpetrators, in a wide

array of situations or conditions, and/or has a severe impact on the victim. This includes sexual assault

committed by persons in authority or position of power with respect to a child, committed by persons in a

shared household with the child, in conditions such as: gang rape, causing grievous bodily harm, threatening

with firearm or corrosive substances, during communal or sectarian violence, assaulting a child under 12 years

of age, or one who is physically or mentally disabled, causing a child to become pregnant, or knowingly

7
Carson, D., Foster, J., & Tripathi, N. (2013). Child sexual abuse in india: current issues and research. Psychological Studies, 58(3),
318–325
assaulting a pregnant child, or infecting the child with HIV 8 , repeated assaults, or accompanied by public

degradation. The definition is very comprehensive and covers a range of possible scenarios.

POCSO is also forward thinking in many aspects, in that, the definition of sexual harassment includes

repeatedly or constantly following, watching or contacting a child either directly, electronically or through other

means [section 11(iv)]—thus, covering incidents of child harassment via sexting or sexual cyberbullying.

However, the interpretation of what might constitute ‘repeatedly’ or ‘constantly’ following or contacting a child

with sexual intent (with the law specifying sexual intent being a ‘question of fact’) is unspecified in POCSO

2012 and consequently is potentially contestable.9

The Act is quite distinctive in that it penalises abetment of or attempt to commit any of the offences listed in the

preceding sections (section 16). Another ‘extraordinary clause’ (section 29) in the Act is the presumption of

guilt of the accused, until proven innocent.

The provision of Special Courts (section 35) where trial proceedings may be conducted in a more sensitive

manner with the victim’s testimony given either ‘in camera’ (i.e. privately), via video-link, or behind curtains or

screens, is intended not only to reduce trauma but also protect the identity of the child. The Special Court plays

a pivotal role in how the law and the evidence may be interpreted.

Implementation of POCSO 2012 involves various criminal justice, state and third sector agencies and is very

resource intensive. Various problems arising from resource scarcity and lack of appropriate training which

affect how investigations, prosecution and medical examinations are conducted in cases of CSA in have been

identified by stakeholders in a state wide consultation.

Strong provisions, weak implication:-

Amid the public outcry raging on the streets over instances of rape of children across the nation, the victimised

and abused child suffers in silence. Traumatised, dejected and horrified family members of the unfortunate

victims find themselves helpless, confused and unable to cope in the aftermath of the heinous crime.

8
Kacker, L., Mohsin, N., & Dixit, A. (2007). Study on child abuse: India 2007. New Delhi: Ministry of Women and Child Development,
Government of India.
9
Human Rights Watch. (2013). Breaking the Silence: child sexual abuse in India.
Even though on May 22, 2012, Parliament passed the Protection of Children from Sexual Offences Act, 2012

(POCSO), which came into force on November 14, 2012, this special law to protect children from offences of

sexual assault, sexual harassment and pornography, remains an unimplemented law, unknown to most and

beyond the reach of those who need to apply it. Sadly, the result is that POCSO — a necessity in India where

40 per cent of the population is below the age of 18 and where over 53 per cent of children reportedly surveyed

in 2007 stated that they had experienced one or more forms of sexual abuse — is not complied with despite

being in the statute book. There are demands for stiff penalties, expeditious new laws and fast-track courts

although POCSO, as a wholesome law, already says it all.

Despite POCSO enjoining the Central and State governments to take measures for giving wide publicity

through the media — television, radio and print — and imparting periodic training to all stakeholders on the

matters relating to implementation of POCSO’s provisions, the Act is relatively unknown. Shockingly, in the

most recent rape case, the Delhi Police included the Act’s provisions in the FIR reportedly after two days of its

filing on April 15, 2013. In the infamous Apna Ghar Rohtak shelter home case of May 2012, where over 100

inmates were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still not been invoked

against the accused. 10The passing of the salutary law is more than significant for a variety of reasons. It defines

exclusively the crime of sexual offences against children and fulfils the mandatory obligations of India as a

signatory to the United Nations Convention on the Rights of The Child, acceded to on December 11, 1992. For

monitoring and implementation of the provisions of POCSO, the Act enjoins that the National Commission and

State Commissions for Protection of Child Rights constituted under the Commissions for Protection of Child

Rights Act, 2005, shall ensure the effective implementation of the provisions of POCSO. The Supreme Court

had, in a hard-hitting directive issued on February 7, 2013, ordered all States to ensure that the regulatory and

monitoring bodies are constituted and made functional. However, till date, such Commissions are either only

partially-functional or effectively non-functional.11

The Justice Verma Committee Report, in one of its conclusions on child sexual abuse, holds that “there is an

urgent need to audit the performance of all institutions of governance and law and order”.

10
http://www.thehindu.com/news/cities/Delhi/protection-of-children-from-sexual-offences-act-needs-
improvement/article4636394.ece.

11
National Crime Records Bureau. (2015). OGD Platform: Open Data Source Government of India. crime-committed-against-
children-under-different-crime-heads#web_ catalog_tabs_block_10. Accessed 16 June 2015
We need to consolidate our efforts and focus our energies on existing laws rather than looking to amend more

laws and making still further newer laws, alien to our culture, society, habits, lifestyles and harsh realities of the

common man. Insofar as child sex abuse is concerned, POCSO is a wholesome law. The government must

create the machinery to implement it and educate its officers besides all stakeholders on what it contains.

Conclusion:-

Child sexual abuse is a dark reality that routinely inflicts our daily lives but in a majority of cases it goes

unnoticed and unreported on account of the innocence of the victim, stigma attached to the act, callousness and

insensitivity of the investigating and the law enforcement agencies, etc. The state must not waste time exploring

alternatives when the answers exist in a law made by Parliament for these special offences against children, the

most vulnerable section of society. Also, parents, teachers and others in the community have a vital role to

protect children from sexual exploitation and abuse. Children are the country's greatest human resource and a

measure of the country's social progress lies in the wellbeing of its children: that they are healthy, educated,

safe, and happy and have access to life opportunities.