Children as one important marginalized group who, in lieu of being carefully playing in the sun and going to school, quite often suffer from various types of maltreatment, exploitation mostly sexual. Thus they are marginalized not only in terms of their access to the basic human needs, but also in expressing freely their views and getting this properly accepted on the issues vital to them. Out of all these sufferings, the sexual exploitation and abuse are considered as the most heinous crime by the perpetrator as it bears huge impact on the mental and physical condition of the victims. Recognizing the importance of this crime and the vulnerability of the children, there are some criminal laws to protect them. But due to the increasing trend of this sexual offence a separate act named as Protection of Children from Sexual Offences (POCSO) Act, 20124 was formulated in order to protect the health and security of the children, who are integral in the process of development. The significance of this Act also lies in the fact that children are the most vulnerable to such crime as they do not understand the consequence and seriousness of the matter. The little innocent children can only feel the pain of the mishappening leaving a scar over the body and mind forever. In this backdrop, this study focuses on to examine the significance of the POCSO Act4 which has been introduced to fill in the shoes of existing laws particularly the Juvenile Justice Act, 20003. The study will also focus on the constitutional provision and the provisions of UN Convention behind this law. By citing a few case studies, the applicability of this Act will be examined alongwith its loopholes. The roles of doctors, police, courts and human rights activists are very important in the question of providing adequate protection and security of the children. Their roles need to be reviewed in this study in the present social context.
Sexual assault, sexual exploitation, sexual harassment, pornography, trafficking and acid attack are the most heinous crimes committed among all the crimes of the society. It destroys a nation by destroying both the present and the future generations. Generational equity in all respects is the basic tenet of achieving sustainability of a nation. Protection of children from sexual offences act (POCSO), 20124 is the most efficient, balanced instrument to fight these crimes for the children who are the victims of different forms of sexual abuse. The act works both as a boon providing instruments and curse with its flaws with backward nature. Although the act has many loopholes in the method of application, it has still been articulated with sincere efforts to wipe out the tears and scars of children sexually abused in different forms. The sexually abused children being marginalized are to depend on their elders and apart from sexual abuse they also suffer from the deprivation of various economic rights like food, clothing, shelter, etc and undue and illogical dominance of the elders damaging the best interests of the child.
AREA OF RESEARCH:
This paper seeks to review the application and significance of Indian Criminal Law to the cases of sexual offences involving children. The study has specifically highlighted IPC sections1 354,375, 376, 376 A and Articles 15(3), 39 (e), 39(f), 45 of the Constitution of India2, the Juvenile and Justice Act, 20003 and the POCSO Act, 20124. The area of economic aspects of these sexually abused cases has also been examined in the study.
SIGNIFICANCE OF THE STUDY:
Child sexual abuse is increasing at an alarming rate all over the world and particularly at our own country India who is among the top five countries of the world facing highest rate of sexual offences involving children. The criminal law in India seems inadequate in many respects to deal with such a sensitive issue. After the famous Sakshi v Union of India and Ors5 where the petitioner, Sakshi, an organization to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particularly those who are victims of any kind of sexual abuse and or harassment, violence, atrocity, etc, filed a writ petition under the Article 322 of the Indian constitution by way of public interest litigation on the nature of sexual intercourse or abuse under section 375, 376 and 376 A under IPC1, comprehensive review has been done by the Law commission who appealed for several amendments of law. Nonetheless, the Law was not sufficient to deal with sexual offences involving children.
AIMS AND OBJECTIVES OF THE STUDY:
The objective of the study is to examine the need and significance of POCSO Act, 20124 along with its loopholes. For this we need to examine whether the criminal law of our country is adequate to deal with the cases of sexual offences involving children even after an independent Act like POCSO Act, 20124. Secondly, this paper will focus on constitutional provision of this issue without which no study in this area will be complete. Thirdly, the study will review the roles of Police, Doctors, Courts and Administrative personnel in this regard. Fourthly, the study will analyze various criminal laws to tackle this issue along with judicial pronouncements before and after the POCSO Act, 20124. The economic aspects of the application of and fulfillment of the POCSO Act, 20124will also be briefly highlighted.
REVIEW OF THE STUDIES:
Moirangthem Sydney, Kumar C Naveen and Bada Math Suresh (2015)6 have expressed their worry and shock in describing the increasing figure of sex abuse of both boys and girls. They mentioned 52.94% boys and 47.06% girls are sexually abused in a year. Also the author has briefly and precisely enumerated the need for the POCSO Act, 2012 and its role to redress the case if child abuse alongwith other criminal acts they have pointed out few gaps in the POCSO Act, 20124. Belur Jyoti and Singh Bahadur Brijesh (2015) 7 have clearly described the role of POCSO Act, 20124 alongwith its problem for implementation in the Indian context regarding inflexibility of age of consent for sex under 18 years. According to the authors, the enactment of the POCSO Act, 20124 is a remarkable and welcome development as it has covered a range of criminal acts like child rape, harassment and exploitation for pornography. Behera P.B and Rao and Mulmule (2013)8 have given an alarming figure of child sexual abuse in 2011 with a rise of 24% over 2010. They have also very rightly pointed out the drawbacks of Indian Penal Code laws to address the child sexual abuse cases. According to them, the police, medical practitioner who deal with the victims on these types of cases are not at all well trained and psychologically child friendly.
POCSO ACT, 2012:
India is a second populous country in the world and latest census 2011 reveals that it is the home of 17% of world`s population. Nearly 19% of the world`s children live in India, which constitutes 42% (more than one- third) of India`s total population and around 50% of these children are in need of care and protection, marginalized. Despite having highest number of sexually abused children in the world, there is no special law in India, which is fully equipped to counter the menace of sexually abused cases. Protection of children against sexual offences Act, 2012 (POCSO)4 is a special law to protect children from offences against sexual assault, sexual harassment and pornography. The Act defines a child below 18 years of age. It defines different forms of sexual abuse including:
- Penetrative assault
- Non- penetrative assault
- Sexual harassment
Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children as the law did not make a distinction between an adult and a child. POCSO deals with sexual offences against persons below the age of 18 years. POCSO provides for relief and rehabilitation as soon as the complaint is made to the special Juvenile Police Unit or the local police who are required to make immediate arrangements for care and protection.
CASE STUDY AND THE CHALLENGES:
As per our discussions, the POCSO Act, 2012 came into force on November 14, 2012 to effectively deal with sexual offences against children. However, a case has shown that it had faced unforeseen challenges in its implementation.
On December 22, 2016 in an unprecedented move, a special court in Thane, Maharashtra issued a perjury notice to a 16 years old minor girl in a case under the POCSO Act. The girl had allegedly been subjected to rape by her father. Though she testified against her father in the examination-in-chief, she turned hostile at the fag end of the cross examination conducted by the defense counsel. In this case, the application of POCSO Act becomes difficult. The challenges are also focused in the following cases:
- Consent: The issue of consent by the victim to undergo medical examination is a complicated one. Sometimes, the victim is not giving consent while the family members are giving consent. The POCSO Act remains silent in this case.
- Medical Examination: According to the POCSO Act, the medical examination of a female child should be done by a female medical officer or doctor. But when the female doctor is not available, conflicting legal position arises.
- Treatment cost: The POCSO Act mandate that the treatment cost of the survivor will be borne by the medical establishment or if not possible, it is the responsibility of the state to reimburse the cost.
- Consented sexual intimacy: POCSO Act mandates that sexual contact between two adolescents or between an adolescent and an adult is illegal. However, consensual sex is allowed under POCSO Act. But recent amendments in the IPC in 2013, that any consensual sex acts below 18 years of age will be considered as rape. Thus application of POCSO Act of 2012 and at the same time amendments of IPC 2013 simultaneously become highly confusing and by this process suffering of the victim may increase by delayed interpretation by judiciary and the law enforcing authorities.
- Reporting: It is well known fact that not all cases of child sexual abuse is reported. Sometimes, families of the victims show lack of interest in proper reporting of cases to police and hospitals with the apprehension that this might increase their harassment and embarrassment in the society.
The discussion on the articles in the Indian constitution 15(3), 39(e), 39(f), 452 will help us to understand the laws and the provisions to tackle the cases of children sexually abused.
Article 15(3): It states that even though the state will not discriminate anyone, they can make special provisions only for women and children to safeguard their interests. But inspite of this Act, Indian women and children are still not getting their due respect and dignity either at home or at outside.
Article 39(e): It states that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Article 39(f): It states that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 45: The Constitution of India in its Directive principles contained in Article 45 has made a provision for free and compulsory education for all children upto the age of 14 years. This will make him/her aware of these incidents of sexual exploitation and harassments by the perpetrators. This is one of the reasons why the Right to Education Act, 200910 has been enacted by the parliament. But its needful application is still far away than it is expected.
ANALYSIS OF THE INDIAN CRIMINAL LAW TO PROTECT SEXUALLY ABUSED CHILDREN:
Malnutrition, illiteracy, trafficking, drug abuse, sexual abuse pornography etc. are not uncommon among the children in India. Child sexual abuse includes physical or psychological maltreatment of a child usually by a person who is in a position of trust and confidence in relation to the child. National study undertaken by the Ministry of Women and child development9 defined ‘sexual assault’ as making the child fondle with his/her private parts or making the child exhibit private body parts and being photographed in the nude. However, the report did not exhibit the true reality because most of the cases go unreported because of the stigma attached to it in our society.
Before May 2012, various sections of the IPC dealing with sexual offences were also applied to the cases of child sexual abuse resulting in serious miscarriage of justice as the provisions were not reasonably sufficient for their application to cases of child sexual abuse. Section 354 IPC punishes a person for outraging the modesty of a woman by use of criminal force but if we apply this section to case of say sexual assault of an infant the serious problem which would arise is what modesty does a child of 2 years have?
Apart from these domestic laws, India is also a party to various international human rights treaties and covenants, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of Child (CRC), which provide specific protection for the rights of children.
THE FLAWS IN THE JUSTICE SYSTEM:
The POCSO Act, 20124 suffers from the following flaws- 1. Non reporting of sexual abuse cases as in most cases, the perpetrators are the family members. 2. Fear of getting stigmatized. 3. Many doctors lack the competence to tackle this issue. 4. Police officials and the administrative personals sometimes are ignorant and reluctant also to follow the guidelines to maintain the secrecy of the case to protect the best interest of the child.
- Pre POCSO:
The Juvenile Justice Act, 20003 for the care and protection of children was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection by providing child- friendly approach in the process of adjudication and disposition of matters in the best interest of the children and for their proper rehabilitation as directed and guided by law. On 11th December, 1992 the Indian Government ratified the convention on the rights of child (CRC) and hence the need was felt to enact a law relating to juvenile justice that is in consonance with the provision of CRC. Accordingly the parliament enacted new law relating to Juvenile Justice Act, 20003.
However, with the passing of years and with the change of the society after few major economic events like economic reforms and globalization, juvenile crimes suddenly and steadily started to occur in an increasing way alongwith serious nature of crimes like rape and murder.
- After POCSO:
POCSO, 2012 was implemented to make it easier for the victims of sexual abuse to get justice. The Act directs the use of more humane ways to deal with victims and prohibit victimization of the child at the hands of the judicial system. Because of which, the reporting of such cases has doubled due to increased awareness. In a case before the Delhi district court where the accused was charged with Section 8, 11 and 12 of the POCSO Act and Section 506 of the IPC for misbehaving with the victim, the court said though proper evidences are not disclosed by the investigative agency, the testimony of the child victim inspired trust and confidence.
In the economic approach, there are two important sides that need to be focused. One is the demand side i.e demand for care and protection of the children form sexual offence and the other is the supply side i.e providing various instruments like Juvenile Justice Act3, 2000, POCSO Act, 20124, Section 354, Section 375, Section 376 of the IPC1, articles 39 (e), 39(f), 45 of the Indian Constitution2 which are necessary to meet the increasing demand for care and protection of the children. The supply side is strengthened by greater economic development of both men and women through women empowerment and increasing education through the application of Right to Education Act, 200910 and only then the equilibrium between these demand and supply will be possible to attend.
Children are the greatest asset and resource of the nation. Therefore care, protection and proper counseling are very important for their upbringing in the society. They should be given the opportunity of a fair and congenial atmosphere to grow up to become good citizen being physically and mentally fit and healthy endowed with skills and efficiency required by the society. Equal opportunities to all citizens with no discrimination should be provided for reducing inequality and curbing down delinquency n juveniles to establish social justice.
This Article is written by Manojit Ghosh , Associate Professor, Prabhu Jagatbandhu College, Jhorehat
The manuscript was submitted for the National Seminar on Protection of Children from Sexual Offences Organised by Bengal Law College in association with RostrumLegal on February 17th & 18th, 2018
- IPC sections 82, 83, 354, 375, 376, 376 A, 506,509 1Universal`s Criminal Manual (2017), Universal Law publishing, Delhi.
- Articles 15(3), 32, 39 (e), 39(f), 45 of the Constitution of India2, Universal`s Bare Act (2017), Universal Law publishing, New Delhi.
- Juvenile Justice Act, 20003, Act No 56 of 2000, Parliament of India, 30th December, 2000, Gazette of India, 2001.
- Protection of children from sexual offences Act (POCSO),20124, Press Information Bureau
Government of India Ministry of Women and Child Development, 19-December-2014. Moharana S.D (2015): An analytical study of POCSO, 2012, International Journal of Academic Research, ISSN-2348-7666, Volume 2, Issue 3(3), July-September.
- Sakshi v Union of India and Ors5, AIR 2004.
- Moirangthem Sydney, Kumar C Naveen and Bada Math Suresh (2015)6, Child Sexual Abuse: Issues and concerns, Indian Journal of Medical Reasearch 2015, July 142(1):1-3.
- Belur Jyoti and Singh Bahadur Brijesh (2015) 7:CHILD SEXUAL ABUSE AND THE LAW IN INDIA: A COMMENTARY,CRIME SCIENCE,SEP 25,2015: INTERNATIONAL JOURNAL OF LEGAL SCIENCES & RESEARCH ( ISSN : 2394-7977 ).
- Behera P.B and Rao and Mulmule (2013)8, Behera P.B, Sathyanarayana Rao TS, Mulmule A.N Sexual Abuse in women with special reference to children: barriers, boundaries and beyond Indian Journal P.2013; 55; 316-9.
- Ministry of Women and child development9, Wikipedia.
- Right to Education Act, 200910, Act No 35 of 2009, Parliament of India, The Gazette of India, New Delhi, 27th August, 2009.