India Law Journal

Legal Articles

Protecting the loss of innocence - with special reference to the Protection of Children from Sexual Offences Act, 2012

Rahul Aggarwal and Shilpi Jain comment that merely having the necessary piece of legislation does not translate into an effective law, sensitization is required of

social institutions and various sections of the society especially the parents so that they do not cover up such incidents as this does more bad than good as there is no action taken against the perpetrator who is free to victimize other children.

History will judge us harshly if we refuse to use our knowledge, our resources and our will to ensure that each new member of the human family arrives into a world that honours and protects the invaluable, irreplaceable years of childhood.

– Carol Bellamy, Executive Director of UNICEF

Introduction

The problem of child sexual abuse has attracted a great deal of attention in recent years. Millions of children are victims of trafficking and sexual exploitation each year. Sexual offences are currently and mainly covered under different sections of IPC. There are number of national legislations and international convention to which India is signatory for protection of Children from sexual abuse. Despite the constructive steps taken by international community and various national governments, these efforts, while important, have done little to reduce the incidence of child sexual exploitation. In the above backdrop, to strengthen the legal provisions for the protection of children from sexual abuse and exploitation for first time, a special law Protection of Children from Sexual Offences Act, 2012 has been passed. This piece of legislation expected to improve venerable plight of children.

Constitution and child rights

The rights of children and their aspirations are of paramount importance in our march towards an inclusive and equitable society. The Constitution of India recognizes the vulnerable position of children and their right to protection. Therefore, Constitution of India contains provisions for survival, development and protection of children. These are included both in Part III and Part IV of the Constitution pertaining to 'Fundamental Rights' and 'Directive Principles of State Policy'. Important among there are Art. 15 (3), Art. 24, Art. 39 (f), Art 45, Article 243 G read with Schedule 11. Equally, the children have the right to equality of opportunity, dignity and care, protection and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of her/his.

Existing legislation and its effectiveness to tackle the menace of child sexual offences

One of the Child right is protection from the sexual exploitation. Until now, there was no complete code on sexual offences against children. Various provisions under Indian Penal Code and some other legislation were used to deal with sexual offences against children.

The Indian Penal Code does not spell out the definition of child abuse as a specific offence; neither does it offer legal remedy and punishment for "child abuse". It is through the application of certain other provisions in the IPC that a child sexual offender is criminalized -- these are, inter alia, the offences of rape (Section 375), outraging the modesty of a woman (Section 354), 'unnatural offences' (Section 377) and procurement of minor girls by inducement or by force to seduce or have illicit intercourse (Section 366-A). None of the above sections define in legal terms what constitutes Child Sexual Abuse (CSA).

Section 375 defines the offence of rape as sexual intercourse committed by a man on a woman against her will or without her consent. The section goes on to provide certain other circumstances where the standard of will or consent does not apply. Among these, intercourse with a girl under 16 years of age, even with her consent, is rape. The section provides an explanation that "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape". Thus, only CSA of girl-children where peno-vaginal penetration has taken place falls within the ambit of this section. Most often CSA does not take this form, but ranges from exhibitionism, touching, to all forms of penetration (including penile-anal, penile-oral, object-vaginal, and finger-vaginal). Penetration of the vagina with any other object, even if life-threatening, does not amount to rape.

In cases of CSA concerning girl-children, where penetration of the vagina has not taken place, Section 354 comes into operation. This section punishes the offence of assault or use of criminal force to outrage the modesty of a woman. And 'modesty' of a woman remains ambiguously defined through judicial interpretation. Especially in the case of CSA, it becomes even more confusing because the 'victim' is a child and whether as a child she can be said to possess modesty is a point of argument in court. In the 1967 Supreme Court (SC) judgment of State of Punjab v Major Singh 1966 SCR (2) 286, the judges deliberated on whether a female child of seven-and-a-half years could be said to be possessed of 'modesty', which can be 'outraged'. Another major inadequacy of this provision is its quantum of punishment. For CSA amounting to the gravest forms of molestation just falling short of penetration, it stipulates a maximum of two years imprisonment, as against a minimum of seven years imprisonment for 'rape'.

The most controversial provision of the IPC, Section 377, is purportedly meant to be applied in cases of CSA where penetration is not peno-vaginal in nature -- defined as 'unnatural offences' by the law. This section is gender-neutral. While it addresses the sexual abuse of boys, when the abuse does not include penetration it escapes the ambit of the section. This means that there is no provision in the IPC to criminalize molestation of boys. Section 377 is also inadequate because it is not a law designed to criminalize CSA, and thus fails to cover the majority of forms that the abuse might take.

Judiciary on sexual offence against children

All provisions of the Constitution and all laws enacted by the legislature get their real meaning and import through the process of judicial interpretation. As regards child sexual offence several proactive steps by summoning NGOs and government officers for ensuring effective rescue, rehabilitation and re-integration are taken by Indians Court. It has now been well established that all judicial proceedings relating to victims of sexual abuse must be conducted in an ‘in-camera’ trial. In the leading case of Sakshi v. Union of India AIR 2004 SC 3566 he court gave the following directions for holding the trial of child sex abuse or rape:

(i) A screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused.

(ii) The questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing.

(iii) The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

Judiciary has played important role in securing rights of children and their rehabilitation by laying down such guidelines.

Brief analysis of the protection of children from sexual offences act, 2012

Pursuing to the high number of sexual assault cases against children, realization that we can no longer hide behind the fig leaf of Sec 377 and sundry other inadequate provisions in the Indian Penal Code (IPC) to prosecute perpetrators of Child Sexual offence and recommendation of 172nd Law Commission the new law Protection of Children from the Sexual Offences Act has recently on 22nd May 2012 passed. The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court. An offence is treated as "aggravated" when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.

Chapter III makes the "use of children for pornographic purpose or possessing pornographic material involving children" a crime and proposes a penalty of three years’ imprisonment for it. While the earlier 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years, the one recently passed criminalizes all sexual contact either with or between those under 18. There are penalties even for abetment of an offence. Act also provides for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child. The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act. Keeping the best interest of the child as of paramount importance at every stage of the judicial process the Act provides for the establishment of Special Courts for trial of offences under the Act. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. In India instances of child sexual abuse are underreported, owing to both lack of awareness and social stigma, this law makes reporting of sexual offences mandatory. That is, Section 21 of the proposed Act stipulates that individuals or institutions that fail to report an offence to the police can be punished with either six months or one year imprisonment with fine.

Grey area

Though the Act has been largely hailed as an important legal initiative, some activists feel that it could have been better. It is a good law, but it does have some lacunae The Act makes it mandatory for any person (including a child) to inform the designated authorities if he apprehends that an offence is going to be committed. However, such a provision would be too farfetched and difficult to assess. Therefore, it recommended that this provision be relooked.

The recently passed bill criminalizes all sexual contact either with or between those under 18. Earlier the Bill did not punish consensual sexual activity if one or both partners were above 16 years. The change is out of consonance with other laws not to speak of our social realities. Under Section 375 of the Indian Penal Code, sex with a girl under 16 years with or without her consent amounts to rape. To believe that it is too early for those between 16 and 18 to have sex is one thing. But to criminalize all consensual sexual activity on the ground that everyone below 18 is a child — and that too in a conflicted social environment where child marriages persist on the one hand and where teenagers are becoming increasingly aware about sexuality on the other can have terrible consequences. Only recently, the Delhi High Court described the move to raise the age of consent from 16 to 18 as "regressive" and "draconian," while acquitting a youth of kidnapping and raping a 17-year-old girl who he had gotten married too. In its present form, the Bill seems set to encourage bogus and unjustified complaints.

Apart from the above gaps the activists have raised other concern too. Like Act fails to address the issue of victims or witnesses turning hostile. It is also argued that the presumption of guilt in child abuse cases should be conditional. For example, that it should "only be applicable if medical examination proves a case of penetrative sexual assault. Pornographic material is, of course, something that must be found before the offence is alleged, so there the presumption may also be justified."

Protection of children from sexual offences act, 2012 vs. Indian penal code

Concern have been raised that which will prevail in case of conflict between the Act, 2012 and IPC. There is a principle in law which states that a special law prevails over a general law. Act of 2012 is special law for a particular offence therefore in case of any clash with the provisions of the Indian Penal Code, as the bill will assume the status of a special law; this would over ride the provisions in the Indian Penal Code.

Authors view

The enactment of further law no doubt would seek to advance the steps or efforts that have already been taken. But, merely having the necessary piece of legislation does not translate into an effective law. It is required that all various sections of the society especially the parents and law enforcement agencies be sensitized towards offences against children. In India, issues of this nature do not invite open discussion and are often considered social taboo. Most families choose to cover up such incidents maybe in a bid to protect the interests of the child involved. This does more bad than good as there is no action taken against the perpetrator who is free to victimize other children. Thus, parents need to be sensitized on how to deal with issues like this. An equal amount of sensitization is required of other social institutions like the police, schools, child care homes, orphanages, media, etc. It is needed that suitable practices on the issue from western countries be adopted like protection of privacy of both the victim and the perpetrator. An overhaul of judicial system would also be required to prevent the trials from stretching over years which would be very agonizing for the victim and his/her family. In addition to providing for effective mechanism for handling child-related sexual offences through the recent legislation, there is an urgent need for initiating some preventive measures so as to ensure that chances of sexual exploitation of children remains minimum. Apart from this stricter implementation and enforcement of the laws in place is required.

Conclusion

Child sexual offences are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. Sexual abuse of children, the most vulnerable segment of our society is a sad reality at present. It is an index of moral degradation of society in recent years. The legislation for the protection of children against sexual offences though not a complete remedy for the malady is a much needed one for ensuring a secure and carefree future for them. Although it is high time for such a law to come into effect, legislation has its own limitations also. It entails the provision of a redressal mechanism for cases of sexual offences but cannot change the moral fabric of the society. Also, whatever may be the laws promulgated to secure the interests and welfare of children, ultimately results depend on the spirit with which such legislations are applied. In cases of sexual offences, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility calls for such protection. Children are future of our country and this menace against them has to be fought on all fronts and at all levels.

RAHUL AGGARWAL is a 5^th year student at Government Law College, Mumbai and SHILPI JAIN is a 4^th year student at Hidayatullah National Law University, Raipur.