Q. Discuss the legal provision to prevent child abuse in India.

Explain your answer with

leading Supreme Court Case Laws.

Introduction:

 Historically, child sexual abuse (CSA) has been a hidden problem in India, largely
ignored in public discourse and by the criminal justice system.
 Until recently, CSA was not acknowledged as a criminal offence; rape was the main, if
not the only, specific sexual offence 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.
 In the past few years activists, Non-Governmental Organisations (NGOs) and the
central government’s Ministry of Women and Child Development have actively engaged in
helping break ‘the conspiracy of silence’ (HRW 2013) and have generated substantial political
and popular momentum to address the issue.
 The movement, spearheaded by the Ministry of Women and Child Development, led to
the enactment of new legislation called the Protection of Children from Sexual Offences
(POCSO) 2012.
 This commentary highlights the distinguishing features of POCSO and focuses on three
issues that might have consequences for how the law operates in reality. In this reflexive piece,
we begin by briefly discussing the prevalence of CSA in India and the legal response to it.
 We draw upon existing literature, legal documents, media reports, access to police
sources and personal practitioner experience to inform the paper.

CHILD ABUSE RATE IN INDIA

 According to the NCRB report, 32,608 cases were reported in 2017 while 39,827 cases
were reported in 2018 under the Protection of Children from Sexual Offences Act.

The UNICEF report says that 69% of the children are suffering from physical abuse in their
family and in a 13 sample state it was seen that 54.68% were boys. And there is an equal
report of boys and girls in emotional abuse.
 In India then according to the 2018 report, 109 children were seen to be sexually
abused every day. According to the data of the National Crime Record Bureau, there was a
jump of 22% from 2017, and the highlights of pornography in India has increased even more in
the Pandemic.
 There is a 95% spike in traffic to adult sites during the lockdown. According to the given
data, there is a jump of 20% in consuming porn content from even befor Legal response to
India
 Until 2012, the only sexual offences against children recognized 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 recognized 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 (under 18 years of age) and mandates the setting up of Special Courts to expedite trials of
these offences.
 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)7, 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.

Distinctintive features of POCSO

The POSCOA [10] was enacted to address and/or prevent sexual harassment, exploitation,
sexual assault, abuse pornography and immoral acts against children. Under the Act, sexual
abuse of a child is defined as any act that involves physical contact with a child or causes the

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child to be in a state of sexual arousal or stimulation. This includes penetrative and non-
penetrative sexual assault, sexual harassment, and sexual exploitation.
Some of its key features are:

 It is not gender-specific and penalises abetment of child abuse.

 The Act holds that a child is any person below the age of 18 years.
 It defines different forms of sexual abuse and makes provisions for creating a child-friendly
atmosphere through all stages of the judicial process and avoid revictimization.
 The act also provides for strict punishment for the perpetrators of child sexual abuse. The
punishment for sexual assault on a child under the age of 12 years is imprisonment for a
minimum of 20 years, which may extend to life imprisonment. For sexual assault on a child
between the age of 12 to 18 years, the punishment is imprisonment for a minimum of 10 years,
which may extend to life imprisonment.
 It gives vital importance to the best interest of the child which can be seen incorporated in
the statute as child-friendly mechanisms for reporting, recording of evidence, investigations,
speedy trials of offences and in-camera trial without revealing the child’s identity through
designated special courts.
 It mandates the use of video-conferencing for recording the statements of the child victim,
thus protecting them from the trauma of appearing in court.
 Moreover, the law also requires mandatory reporting of child abuse. Any person who has
knowledge of child abuse is required to report it to the police or a designated child protection
agency. Failure to report child abuse is punishable with imprisonment for up to six months, or
a fine, or both.

Judiciary on Child Sexual Abuse

Sakshi vs Union of India (2004) The Supreme Court developed guidelines for the conduct of
child sexual abuse trials37:

a. The screen or arrangement where the victim is or is to be made witnesses does not see
the accused's body or features.

b. The questions put to a cross-examination on the behalf of the accused in so far as they
are specifically relevant to the incident should be answered, in writing, to the president of the
Court, who can refer them, in plain and not misleading language, to the victim or to witnesses.

c. Ample breaks, as required, should be permitted for the victims of child abuse or rape
while giving testimony in court.

In Tara Dutt vs the State (2009): The criminal law of our country did not recognize digital
rape as a detestable offence. As a result, the petitioner has been convicted of the fact that a
woman's modesty was insulted by criminal law in compliance with Section 354 of the Indian
Penal Code.

In Vishal Jeet v/s Union of India AIR 1990 S.C. 1412; In this case, the SC has briefed the
State Governments and Union Territories in the following directions:

(a) Statutory legislation requiring implementing authorities to take effective and decisive
action in the eradication of child trafficking under the existing laws.

(b) Take action to provide appropriate and refurbishing housing.

(c) Create a special Advisory Committee consisting of politicians, sociologists, criminologists,

women / child welfare and voluntary social organizations, which will be responsible for making
recommendations on the eradication of children's prostitution.

Constitution of India and Protection of Children

The Constitution recognizes the children as the most vulnerable human beings and thus had
made provisions correspondingly. They are the most affected than any other age group by the
actions of the state and any other individual. The children are not seen as people who have a
mind and vision of their own and are often guided by the adults. Since they have no political
and economic power, their voices are often suppressed.

CHILD RIGHTS IN INDIA INCLUDE:

 Right to elementary and compulsory elementary education for all children between the
ages of 6 and 14 (Article 21A).
 Right to be safe from any dangerous activity till the age of 14 (Article 24).
 The right to be protected from misconduct by economic necessity (Article 39) and forced
into occupations unfit for age or power.

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 Assured appropriate opportunities and facilities to grow safely and under conditions
of equality and dignity, and protection of children and youth against.
 Abuse and moral and material abandonment (Article 39F).
 Right to equality (Article 14).
 Right against discrimination (Article 15).
 Right to personal rights and due legal process (Article 21).
 Right to protection from slavery and forced into slave labor (Article 23).
 The right to be protected from social inequality and other forms of oppression of poor
segments of the population (Article 46).

Additional efforts taken by the government

i. National and State Commission for Protection of Child Rights: In addition to their
counterparts in other Indian states, it plays a key role in improving children’s status in India. It
could do a lot more with more resources, more support from the central government and better
trained workers. More significant than ever is their position as independent monitors of
government action. Recently, they have taken a massive job to track the implementation of
India’s landmark right to education Act, which mandates state governments to provide all 6-14
year olds with free education in neighborhood schools and includes crucial provisions on the
safety of children.

ii. Child Protection Services Scheme: In 2009, the Ministry of Women and Child Development
established the Integrated Child Protection Scheme in India which was the largest ever effort to
strengthen child protection initiatives. The purpose was to promote and introduce innovative
institutions and programs. The most ambitious of these was the appointment of social workers
and the creation of committees to deal directly with children’s rights in every district of the
country.

iii. Child welfare committees: They are among the most significant child welfare systems
in India at the moment. They are powerful quasi-judicial bodies of experts who coordinate the
welfare authorities and the police and audit residential child care facilities. Increased number
of committees was anticipated in the Integrated Child Protection System (ICPS). Founded in
2000 under the Juvenile Justice Act, at least one child protection committee should be set up
in each district, financed by the State Government.

Juvenile Justice Act: The key law overseeing child protection in India is the Juvenile Justice
Act of 2015. A series of “model laws” have been formulated up by the central government for
the application of the law, which have since been enforced by individual states and in some
cases changed. The act protects two groups of children: those who are in conflict with the law
and those who need protection and care.

CONCLUSION
The analysis clearly highlights that many children around, some way or the other are victims of
child abuse. It is therefore necessary for the society and the government to awaken for the
protection of the children and to enhance their childhood. Our children are our future, so their
present should be safeguarded for a better future.