Child sexual abuse laws in India

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, of which 225 million are girls[1]. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21[2] of the Indian constitution, and also mandated given India's status as signatory to the UN Convention on the Rights of the Child. Child sexual abuse laws in India have been enacted as part of the nation's child protection policies. The necessity for a legal remedy is evident given that 24 per cent of all children have suffered sexual abuse[3], and half of these were at the hands of persons in the position of trust .The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill, 2011' regarding child sexual abuse on 22 May 2012 into an Act.[4][5] The rules formulated by the government in accordance with the law have also been notified on the November 2012 and the law has become ready for implementation.[6] There have been many calls for more stringent laws.[7][8]

Law Before the 2012 legislation was passed

Goa Children's Act, 2003,[9] 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:

  • IPC 375 doesn't protect male victims or anyone from sexual acts of penetration other than "traditional" peno-vaginal intercourse.
  • 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.
  • In IPC 377, the term "unnatural offences" is not defined. It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalise sexual abuse of children.

The Protection of Children from Sexual Offenses (POCSO) Act

The Protection of Children from Sexual Offences (POCSO) Act, 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.

The new Act[10] provides for a variety of offences under which an accused can be punished.

It recognises forms of penetration other than penile-vaginal penetration[11] and criminalises acts of immodesty against children too. The act is gender-neutral. With respect to pornography, the Act criminalises even watching or collection of pornographic content involving children.[12] The Act makes abettment of child sexual abuse an offence.[13] It also provides for various procedural reforms,[14][15][16][17] making the tiring process of trial in India considerably easier for children. The Act has been criticised as its provisions seem to criminalise consensual sexual intercourse between two people below the age of 18. The 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years.[18]

Contention around implementation of POCSO

The Definition of Age

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

A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped. The victim's advocate argues that "failure to consider the mental age will be an attack on the very purpose of act." SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.[19]

Contradictions with the Medical Termination of Pregnancy Act, 1971

The POCSO 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 MTP 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. Given that in this country some 45%-47% of girls get married under 18 years of age, this presents a huge problem.

See also

References

  1. ↑ "Census of India Website : Office of the Registrar General & Census Commissioner, India". www.censusindia.gov.in. Retrieved 2018-09-28. line feed character in |title= at position 81 (help)
  2. ↑ "Article 21 in The Constitution Of India 1949". indiankanoon.org. Retrieved 2018-09-28.
  3. ↑ "Crime in India 2016" (PDF). National Crime Records Bureau.
  4. ↑ "Parliament passes bill to protect children from sexual abuse". NDTV. 22 May 2012.
  5. ↑ The Protection of Children from Sexual Offences Act, 2012 Kerala Medico-legal Society website
  6. ↑ Law for Protecting Children from Sexual Offences
  7. ↑ Taneja, Richa (13 November 2010). "Activists bemoan lack of laws to deal with child sexual abuse". DNA India. Retrieved 14 May 2012.
  8. ↑ "Need stricter laws to deal with child abuse cases: Court". The Indian Express. 12 April 2011. Retrieved 14 May 2012.
  9. ↑ "CHILDLINE India Foundation : Documents – Cause ViewPoint – CHILD SEXUAL ABUSE- The Law and the Lacuna". Childlineindia.org.in. 19 January 2010. Retrieved 14 May 2012.
  10. ↑ The Protection of Children from Sexual Offences Act, 2012 pdf
  11. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 2
  12. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 3
  13. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 4
  14. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 5
  15. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 6
  16. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 7
  17. ↑ The Protection of Children from Sexual Offences Act, 2012 Chapter 8
  18. ↑ "Good act, bad provision". The Hindu. 26 May 2012. Retrieved 9 September 2014.
  19. ↑ encompass-mental-age/article17436626.ece
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