OFFERNCES AGIANST CHILDREN AND JUVENILES

A PROJECT REPORT
SUBMITTED TO ARMY INSTITUTE OF LAW
IN PARTIAL FULFILMENT OF THE REQUIREMENT
FOR THE DEGREE
OF
B.A. L.LB
FIFTH YEAR
2018-2019

INTRODUCTON TO POCSO ACT 2012

SUBMITTED BY: JUHI BHUTANI

ROLL NO. 1471
 Introduction

The Protection of Children from Sexual Offences Act, 2012 was passed by the Lok Sabha on
22nd may 2012. It was earlier passed by Rajya Sabha on 10th May 2012. It has been drafted to
strengthen the legal provisions for protection of children from sexual abuse and exploitation. For
the first time a special law has been passed to address the issue of sexual offences against
children. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children
from the offences of sexual assault, sexual harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation and speedy trial of offences
through designated Special Courts. The act casts duty on state to spread awareness to the general
public, of the provisions of this act through media i.e. television, radio and print at regular
intervals. The POCSO Act of 2012 looks into a support system for children through a friendly
atmosphere in the criminal justice system. The objective of the Act is to save the children from
being sexually abused and punish and create fear at the hearts of the offenders.

Why the legislation was needed?

Children who have been sexually abused are not only traumatised as a result of their experience,
but are also more vulnerable to further and repeated abuse and at risk of secondary victimisation
at the hands of the justice delivery process. A common example is the handling of cases of child
victims by unspecialized police, prosecutors and judges who are not trained in justice for children,
children’s rights or how to deal and communicate with victim children and their families.1 The
lack of clear guidelines and procedures on how to deal with child victims and their families in a
child – sensitive manner during the court process affects the quality of trial and evidence and trial
process; the child is subjected in such cases to repeated probing and questioning, made to relive
the traumatic incident again and again, and thereby suffer in the retelling. Another instance is that
of child victims not receiving proper medical support and counselling, causing physical and
mental distress to the child and his/her family and hampering the healing process for the child. In
addition to this, families and child victims are unable to benefit from legal aid as the appropriate
agencies are not involved at the right stage in the procedure. Child victims do not receive timely
advice and assistance so as to be free from a fear of family breakdowns and social isolation if the
offender is a relative and/or the breadwinner of the family. There is also no system of supervision

1
Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013
<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms>
for checking the welfare and well-being of child victims during and after the court process,
particularly when the abuser is the parent or guardian of the child.

Thus POCSO Act is a prompt and systematic multi-sectoral intervention that is conducive to the
justice delivery process and minimises the risks of health problems, enhance the recovery of the
child and prevent further trauma. In addition to it has ensured that the child is steered towards the
path of healing, recovery and rehabilitation.

The fundamental principles2 to be followed in the determination of a case involving a sexual

offence against a child have been laid down in various international instruments and in the
Preamble to the POCSO Act, 2012 itself.

These principles are –

a) Right to life and survival -Every child has the right to life and survival and to be shielded from
any form of hardship, abuse or neglect, including physical, psychological, mental and emotional
abuse and neglect; and to a chance for harmonious development and a standard of living adequate
for physical, mental, spiritual, moral and social growth. In the case of a child who has been
traumatized, every step should be taken to enable the child to enjoy healthy development.

b) The best interests of the child - Every child has the right to have his/her best interests given
primary consideration. This includes the right to protection and to a chance for harmonious
development. Protecting the child’s best interests means not only protecting the child from
secondary victimisation and hardship while involved in the justice process as victim or witness,
but also enhancing the child’s capacity to contribute to that process. Secondary victimisation
refers to the victimisation that occurs not as a direct result of the criminal act but through the
response of institutions and individuals to the victim.

c) The right to be treated with dignity and compassion - Child victims should be treated in a
caring and sensitive manner throughout the justice process, taking into account their personal
situation and immediate needs, age, gender, disability and level of maturity and fully respecting
their physical, mental and moral integrity. Interference in the child’s private life should be limited
to the minimum needed and information shared on a need to know basis. Efforts should also be
made to reduce the number of professionals interviewing the child. At the same time, however, it
is important that high standards of evidence collection are maintained in order to ensure fair and
equitable outcomes of the justice process. In order to avoid further hardship to the child,

2
Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry of
Women and Child Development, September 2013
<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf >
interviews, examination and other forms of investigation should be conducted by trained
professionals who proceed in a sensitive, respectful and thorough manner in a child-friendly
environment. All interactions should also take place in a language that the child uses and
understands. Medical examination should be ordered only where it is necessary for the
investigation of the case and is in the best interests of the child and it should be minimally
intrusive.

d) The right to be protected from discrimination - The justice process and support services
available to child victims and witnesses and their families should be sensitive to the child’s age,
wishes, understanding, gender, sexual orientation, ethnic, cultural, religious, linguistic and social
background, caste and socio-economic condition, as well as to the special needs of the child,
including health, abilities and capacities. Professionals should be trained and educated about such
differences. Age should not be a barrier to a child’s right to participate fully in the justice process.
Every child should be treated as a capable witness, according to his/her age and level of maturity.

e) The right to special preventive measures – Children may already face twice as much risk of
repeated victimisation as adults because they often are or are perceived by a potential offender as
being vulnerable, unsure of how to defend themselves or unable to properly assert themselves and
take a strong position against an adult. A preventive measure that could be used to protect
children is to demand references and a criminal background assessment before hiring personnel
likely to work with children, such as schoolteachers.

f) The right to be informed - There are two aspects of child victims‟ and witnesses‟ right to be
informed. The first aspect is the more general one and consists of informing child victims and
witnesses about the assistance they are entitled to, the way legal proceedings are organized and
the role they can play in those proceedings if they decide to do so. The second aspect is more
specific and relates to information on the particular case in which the child is involved: it implies
being informed about the progress of the case, about the scheduling of the proceedings, about
what is expected of the child, about the decisions rendered, about the status of the offender, and so
forth.

g)The right to safety - Where the safety of a child victim may be at risk, appropriate measures
should be taken to require the reporting of those safety risks to appropriate authorities and to
protect the child from such risk before, during and after the justice process. Professionals should
be trained in recognizing and preventing intimidation, threats and harm to child victims and
witnesses. Where child victims and witnesses may be the subject of intimidation, threats or harm,
appropriate conditions should be put in place to ensure the safety of the child. l) The right to
compensation– The child victim may be awarded compensation1 for his/her relief and
rehabilitation.3 This compensation may be awarded at an interim stage, during the pendency of
trial, as well as at the conclusion of the trial. Procedures for obtaining and enforcing reparation
should be readily accessible and child-sensitive. Victims may be repaid for material losses and
damages incurred, receive medical and/or psychosocial support and obtain reparation for ongoing
suffering.

The Section under IPC for Sexual Offences against children.

The IPC also has a list of offences against the children. According to Section 82 and section 83 a
child who commits a crime and is below seven years of age is not considered to have committed a
crime. A child who is between the ages of seven to twelve is deemed to have immature
understanding about his or her action and is incapable of committing a crime. Sexual offences are
against children are also covered under IPC. Section 372 discusses the selling of child below the
age of eighteen years for purpose of prostitution of illicit intercourse with any person to be illegal.
Section 376 discusses the offence of rape. Under this section special circumstances such as rape
by civil servant, gang rape , rape of child below twelve years all are covered.

Certain facts about child abuse in India

India is the second largest child population in the world, 42% of India’s total population is below
eighteen years. In a shocking revelation, a Government commissioned survey has found that more
than 53% of Indian children are subjected to sexual abuse / assault. Majority of these cases were
perpetrated by someone known to the child or in a position of trust and responsibility, Not
surprisingly, most children did not report the abuse to anyone.

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.

''Child abuse or maltreatment constitutes all forms of physical and/or emotional ill-treatment,
sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in
actual or potential harm to the child's health, survival, development or dignity in the context of a
relationship of responsibility, trust or power.” – WHO

It is a state of emotional, physical, economic and sexual maltreatment meted out to a person
below the age of eighteen and is a globally prevalent phenomenon. However, in India there has

3
FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights
<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+Latest.pdf?MOD=AJPERES
&lmod=-580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055>
been no understanding of the magnitude the problem. The growing complexities of life and the
dramatic changes brought about by socio-economic transitions in India have played a major role
in increasing the vulnerability of children to various forms of sexual abuse.4

Signing up to the United Nations Convention on the Rights of the Child, India promised to protect
its children from all forms of sexual exploitation and sexual abuse. Article 34 enjoins state
machinery to prevent the inducement or coercion of a child to engage in any unlawful sexual
activity.

Statement of Objects and Reasons-

 This act provides for protection of children from sexual harassment, sexual assault,
pornography and establishment of special courts for matters connected thereto.
 Article 15(3) of the constitution also empowers the state to make special provisions for
children. Moreover the Government of India has acceded to the Convention of Rights of
the Child on 11th December 1992 which prescribes a certain standard to be followed by all
state parties in securing best interests of the child.
 The act also proffers that for proper development of child that his right to privacy or
confidentiality be protected and respected by everyone involved in judicial process for the
child.
 The act furnishes for paramount interest of the child at every stage and his physical,
emotional , intellectual , social development of the child is ensured.
 The State parties to the Convention on Rights of the Child are required to take measures to
prevent-
 Inducement or coercion of child to engage in unlawful sexual activity.
 Exploitation of children in prostitution.
 Exploitative use pf children in pornographic performances.

Territorial Extent and Commencement - Section 1 of POCSO Act renders the jurisdiction on
whole of India except State of Jammu and Kashmir. The act came into force on 19th June 2012.

Definition Clause- Section 2 of the POCSO Act furnishes certain definitions –

 2(a) ‘aggravated penetrative sexual assault’ has same meaning as section 5.

 2(d) ‘child’ is a person below 18 years of age.
 2(f) ‘penetrative sexual assault’ has same meaning as given in section 3

4
http://www.tehelka.com/why-paedophilia-should-be-made-a-crime/ last visited on 21st August 2018
Chapter II of the Act deals with Sexual Offences against Children. The first part provides for
penetrative sexual assault and its punishment thereof.

What is penetrative sexual assault?

Section 3 says that a person has committed penetrative sexual assault if he

 Penetrates his penis into vagina, urethra, mouth, anus of the child and makes the child to
do so with him or any other person.
 Inserts any object or art of body not being the penis in vagina, urethra , anus of the child or
makes the child to do so with him or any other person.
 Manipulates any part of body of child so as to cause penetration into vagina, urethra, anus
or any part of the body of the child or makes the child to do so with him or any other
person.
 Applies his mouth to penis, vagina anus, urethra of the child or makes the child to do so
with him or any other person.
Section 4 renders a punishment for penetrative sexual assault as imprisonment for not less than
seven years which may extend to imprisonment for life with fine.
The second part of Chapter II provides for ‘aggravated penetrative sexual assault’ and its
punishment thereof.
What is aggravated penetrative sexual assault?
Section 5 provides 21 instances for the same. They are as follows-
 A police officer commits penetrative sexual assault on child within limits of his police
station or in course of his duties.
 A member of armed forces or security forces commit penetrative sexual assault on child
within limits pf area he is deployed or in course of his duties,
 A public servant commits penetrative sexual assault on child.
 A person on management or staff of protection homes, remand homes or other places for
custody of children commits penetrative sexual assault on child.
 A person on management or staff of the hospital whether government or private commits
penetrative sexual assault on child.
 A person on management or staff of educational institution or religious institution
commits penetrative sexual assault on child.
 More than one person with common intention commit gang penetrative sexual assault on
child.
 A person commits penetrative sexual assault on child by using deadly weapons, fire,
heated or, corrosive substances.
  A person commits penetrative sexual assault on child causing grievous hurt or bodily
harm or injury or injury to sexual organs of the child.
 A person who commits penetrative sexual assault on child, which-
 Physically incapacitates the child or causes the child to become mentally ill as
defined under
 In case of female child makes her pregnant by sexual assault.
 Infects child with HIV or other life threatening diseases or infections which may
either temporarily or permanently impair the child.
 A person who takes advantage of child’s mental or physical disability, commits
penetrative sexual assault on child
 A person who commits penetrative sexual assault on child more than once or repeatedly.
 A person who commits penetrative sexual assault on child below twelve years of age.
 A person who is a relative of child through blood or adoption or marriage or guardianship
or through foster care and living in same shared household with the child commits
penetrative sexual assault on child.
 A person who is in position of trust or authority of child commits sexual assault on hi.
 A person commits penetrative sexual assault on child knowing that the child is pregnant.
 A person who commits penetrative sexual assault on child and attempts to murder the
child.
 A person who commits penetrative sexual assault on child and makes the child to strip or
parade naked in public.
Section 5 renders punishment for aggravated penetrative sexual assault which is not less than 10
years of imprisonment which may extend to imprisonment for life and also fine.
ROLE OF JUDICIARY
In case Alakh Alok Srivastava versus Union of India and others5 - The bench was hearing the
PIL6 filed by advocate Alakh Alok Srivastava, drawing the attention of the court to the shocking
incident of rape of an eight-month-old girl by her 28-year-old cousin in Shakur Basti of North-
West Delhi. ASG Pinky Anand informed the bench that the Criminal Law (Amendment)
Ordinance of 2018 has been promulgated on April 21 with a view to amend the POCSO Act to
stipulate the capital punishment for rape of children below age of 12 years. And gave certain
direction to high courts for speedy disposal of cases.

5
WP 76 OF 2018
6
https://www.livelaw.in/child-rapes-sc-issues-directions-for-the-better-implementation-of-pocso-act/
Latest amendment- The Criminal Law Amendment Ordinance, 2018, amends Indian Penal Code,
Code of Criminal Procedure, Indian Evidence Act and Protection of Children from Sexual
Offences Act. Minimum Punishment for Rape made Ten Years .Minimum punishment of twenty
years to a person committing rape on a woman aged below 16. Minimum Punishment of 20 years
rigorous imprisonment and maximum Death penalty/Life Imprisonment for committing rape of
child below 12 years of age.Section 42 of the POCSO Act has been also amended to include
newly inserted IPC provisions section 376AB, section 376DA, and section 376DB.

Conclusion-

Six years after the Protection of Children from Sexual Offences (POCSO) Act, 2012, came into
effect, the noble intentions and the beneficial provisions of the Act are yet to touch the lives of
many affected children. Every few years a piece of progressive legislation takes shape, only to be
let down by those in charge of implementation. POCSO is not just another law defining offences
and prescribing punishments like the IPC. It is an enabling legislation that mandates child-friendly
procedures — in reporting offences, recording victims’ statements, trial proceedings in special
courts, and counselling. Unfortunately, the trauma of children seem not to move our lethargic
state governments, who often require a hard dose of public protests and negative press to do the
right thing. It appears that our State has lost its capacity to feel; in the daily grind of transacting
government business the goal of making the world a better place to live in has been forgotten;
nothing else can describe the POCSO failure.

In December, the Supreme Court took exception to the failure of many state governments to
implement POCSO provisions like setting up special courts in all districts, staffing state child
rights commissions to effectively monitor POCSO implementation, and framing rules to be
followed by police and other stakeholders in child abuse cases. In September, the women and
child development (WCD) ministry had framed model guidelines to help states implement
POCSO better. An exhaustive and forward-looking document, the model guidelines will help
stakeholders like police personnel, medical professionals, psychologists, counsellors, social
workers, lawyers and judges in interviewing child victims. According to the WCD ministry, only
Tamil Nadu, Meghalaya, Maharashtra, Uttar Pradesh and Chandigarh have confirmed formulation
of guidelines. Till date, only 18 states have set up special children’s courts.7

7
http://lawyersupdate.co.in/LU/1/1279.asp
The need for POCSO was felt after surveys showed a high number, 40 to 50 per cent of
respondents, complaining of sexual abuse as children. Crimes against children rose from 26,694
in 2010 to 38,172 in 2012. Even before the Verma committee, constituted after the December 16
gang-rape, suggested changes in the definition of rape, POCSO had taken the lead. Besides being
gender-neutral, the Act classified offences into penetrative sexual assault (seven years to life
imprisonment), aggravated penetrative sexual assault (ten years to life), sexual assault (three to
five years), aggravated sexual assault (five to seven years), and sexual harassment (three years
and fine).

In the first months of POSCO, policemen, blissfully unaware of the law, continued to register
offences under the IPC. While that situation has somewhat changed, confusion still persists about
charging offenders under the correct sexual assault category. Today, most functionaries assume
their responsibility is complete by charging the accused under POCSO. The deterrence value of
POCSO does not emanate from the harshness of its punishments. The favourable environment
created for children and families to report crimes and cope with the vagaries of the trial stage is
the heart, soul, and muscle of the POCSO Act.8

Future amendments of the law should address these key issues.

However, the above concerns notwithstanding, there is hope that if the new law results in more
prosecutions, then more victims will be encouraged to report their abuse, and potential attackers
will be deterred from abusing children. It is essential that the law is understood and respected by
police officers, government officials, and courts across the country. It will be the job of the
national and state commissions for the protection of child rights to oversee this, and so it is
essential that they be given sufficient resources and manpower. The government also needs to
draw up appropriate training programs.9

Thus I would like to conclude by a quote of NELSON MANDELA- ‘There can be no keener
revelation in a society’s soul than the way it treats its children.

8
http://www.dnaindia.com/analysis/editorial-dna-edit-the-c-in-pocso-1949876
9
http://www.hrw.org/ja/node/113337/section/9
 Bibliography

Articles Referred:

 Child Welfare: A critical analysis of some of the socio-legal legislations in India,

Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume
19, Issue 8, Ver. II (Aug. 2014), pp 54-60.
 The Protection of Children from Sexual Offences (POCSO), Neha Gupta, N.K.
Aggarwal & M.S. Bhatia, Delhi Psychiatry Journal, Vol. 16 No. 2 (October 2013).
 Model Guidelines under Section 39 of The Protection of Children from Sexual
Offences Act, 2012, Ministry of Women and Child Development, September 2013
<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf >
 Crimes of Passion, The Asian Age, March 8, 2013
<http://archive.asianage.com/columnists/crimes-passion-521>
 FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights
<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+La
test.pdf?MOD=AJPERES&lmod=-
580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055>
 POCSO: A Child Law in Oblivion, Lawyers Update, June 2013
< http://lawyersupdate.co.in/LU/1/1279.asp >
 Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013
<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-
2012/articleshow/19718160.cms>
Websites Referred:

 http://zeenews.india.com/tags/pocso-act.html
 http://kushmanda.com/the-protection-of-children-from-sexual-offences-pocso-act-
2012/
 http://www.hrw.org/ja/node/113337/section/9
 http://www.telegraphindia.com/1140122/jsp/opinion/story_17850822.jsp
 http://www.npscindia.com/downloads/1406783345.pdf
 http://pib.nic.in/newsite/erelease.aspx?relid=84409