CHAPTER 1

INTRODUCTION

“There is no trust more sacred than the one the world holds with children. There is
no duty more important than ensuring that their rights are respected, that their
welfare is protected,that their lives are free from fear and that they can grow up in
peace”-
Kofi Annan1

The postmodernist phase in world culture has marked many a strides in

the understanding, analysis and contextualization of the world affairs. The
present Thesis entitled “JUVENILE JUSTICE AND PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT 2012- A SOCIO-
LEGAL ANALYSIS OF EXISTING LAWS AND PRACTICES” has its traces in
the development of socio-political sensitiveness on the world plank in the later
decade of the twentieth century. Law, Politics, and Governance are the off
shoots of the eternal urge for betterment of civil life. May it be the human
rights laws and the Universal Declaration of Human Rights in the field of law
and allied branches like governance, administration and justice ,or the socio-
economic forces like post structuralism, deconstruction, gender discourses
,globalization, cyber space or liquid reality, human beings and its development
has been focused as the central point .We can define the world affairs in the
second decade of the twenty first century totally fixing up and indicating
towards geo-centric establishments which sometimes allures even to subsiding
the institution of state. It will never sound hyperbolic if we call it the new
renaissance of individuality in the new millennium.

Throughout the history of mankind, children have only sometimes been

spared to indignities, cruelties, and horrors that human beings so often inflict
upon each other. At various times, in various places, children have been
abandoned, starved, beaten, enslaved, sexually assaulted, and put to death. One

1
Kofi Atta Annan, winner of 2001 Nobel Peace Prize is a Ghanaian diplomat who served as the
seventh Secretary-General of the United Nations from January 1997 to December 2006.

1
such horror- child abuse – have become serious social problems in the
societies, yet it occurs infrequently or not at all in many of the world‟s
societies. Child abuse seem‟ s to increase in situations of rapid socio- cultural
change, urban migration, family disorganization, and the like, no clear cut set
of prognostic variables has been identified. Indeed, it seems that factors that
predict child abuse in one society will not be predictive in another. Only active
public and professional concerns led to the emergence of the truer picture of all
forms of the child abuse and neglect: physical, sexual, emotional, and failure to
thrive owing to maternal deprivation.2 The present thesis is an attempt to make
a socio legal analysis of the juvenile justice system and study of child abuse
which is existing in different form and how they have been addressed in
different existing legislation and government policies.

1.1 CHILD PROTECTION IN INDIA

Census 2011 had counted more than 440 million children in India below
18 years of age constituting 37% of the total population of the country. Within
the age group of 0-17 years, children between 0-6 years constituted about 14%
of the total population of children in India followed by 17% between 7-14
years and the remaining 6% in the age group of 15-17 years.3 In the case of
India, a huge chunk of the child population is vulnerable at birth till they attain
self-sustaining capabilities, physically, emotionally and mentally. Thus a
holistic approach is needed for children to enable them to become active
participants in their own development and the development of the Nation.

Protecting children from all forms of violence, abuse, and exploitation in

differentsettings, including family, community and wider society is essential to
ensure that they are given all the rights due to them. Protecting children from
all forms of violence, abuse, and exploitation is integral to the holistic
development of children, as it enables them to become active participants in

2
Jill E. Korbin, Child Abuse and Neglect: Cross-cultural Perspective University of California
Press, 1983,page ix.
3
http://www.butterflieschildrights.org/Situation of Children and Child Rights in India.
pdf/accessed on 12/04/2017

2
their own development and the development of the Nation. A child who sells
flowers or magazines at a traffic light every day is not just another salesperson,
but someone who is deprived of a normal and secured family life, and denied
his or her basic rights of nutrition, health, education, and
development.4 Unfortunately, it is common to see children in vulnerable and
difficult situations. At an age where they should be in school and learning,
children are married off; engaged in work– in farms, households, restaurants,
and in industries; trafficked for labour and sexual exploitation; and exposed to
abuse and violence.5

According to the Ministry of Women and Child Development (MWCD),

around 170 million or 40 percent of all children in India are either vulnerable to
or experiencing difficult circumstances, such as violence at home, separation
from family and street life 6(Integrated Child Protection Scheme– ICPS7). If we
look at sexual abuse, a study conducted by MWCD in 2007 shows that more
than 53 percent all respondents reported to have faced one or more forms of
sexual abuse8.

Gender-biased sex selection is another important challenge for child

protection in India. As per 2011 Census, there are only 914 females to every
1,000 males in the age group of zero to six years.9 This means that baby girls
are largely discriminated over boys at birth.

4
http://www.insightsonindia.com/wp-content/uploads/2013/09/child-protection-in-india.pdf,
accessed on 12/02/2017
5
Child Protection in India , Dora Giusti, Aneerudh Kulkarni
yojana.gov.in/topstory_details.asp?storyid=396 accessed on 14/03/2017
6
http://www.insightsonindia.com/wp-content/uploads/2013/09/child-protection-in-india.pdf
7
The Integrated Child Protection Scheme (ICPS) is a governmental program implemented by
the Government Of India to help secure the safety of children, with a special emphasis on children
in need of care and protection, juveniles in conflict or contact with the law and other vulnerable
children. Its primary purpose is to create a central structure to provide oversight and
standardization for pre-existing and evolving child protection schemes in India. Proposed in 2006
and implemented in 2009, the ICPS is administered at the state level by state child protection
committees and societies and at the district level by district child protection societies, among other
institutions
8
http://www.childlineindia.org.in/pdf/MWCD-Child-Abuse-Report.pdf accessed on 12/02/2017
9
Child Protection in India - Insights Available at www.insightsonindia.com/wp-
content/uploads/2013/09/child-protection-in-india.pdf

3
 Child marriage is also preventing girls from going to school, developing
skills to get a job and, growing to their full potential. In fact, India has the
record of having the highest absolute number of child brides: about 24 million.
This represents 40 percent of the 60 million world‟s child marriages10.

Protecting children from all forms of violence, abuse, and exploitation in

different settings, including family, community and wider society is essential to
ensure that they are given all the rights due to them. When children are
protected, they develop to their full potential, but when they are exposed to
risks, they become vulnerable to getting trapped in the cycle of violence, abuse,
and deprivation.

1.1.1 Child Protection andUNICEF

At UNICEF, the vision and approach to child protection is about

creating a “protective environment” for all children. This means working
together with all stakeholders, including the Government, communities,
schools, families, children, Panchayat members, teachers and Anganwadi
workers to protect children against all forms of violence, abuse, and
exploitation. This protective environment, which implies the establishment of a
responsive system to address violations of children‟s right to protection, has
some key elements:

 Government‟s commitment to fulfilling children‟s right to protection,

which is reflected in a strong and sensitive policy for children;

 Appropriate legislation, which safeguards children‟s rights, and

adequate financial and human resources to implement the laws;

 Promotion of positive social and cultural norms, attitudes, traditions,

behaviours and practices, which are essential to address issues such as
gender biased sex selection, child labour, and other protection concerns;

10
https://www.unicef.org/.../pdfs/SOWC-2011-Main-Report-chapter-2_12082010.pdfaccessed on
12/04/2017

4
  Creating an atmosphere of open and frank discussions on child
protection, including engagement with the media and civil society to
raise and address child protection concerns; Building children‟s own
capacities to protect themselves and demand their rights, through
knowledge and skills;

 Enhancing capacities of families, caregivers, and everyone who comes

in contact with children, to be able to provide effective care and
protection of children;

 Provision of basic and targeted services, including health and education,

as well as specific services for children who have been victims of
violence, abuse, and exploitation;

 A system that can provide effective monitoring and oversight – both in

terms of violations of children‟s rights, and to the child protection
system as whole.

UNICEF11 works with government and NGO partners, with

communities, the media, academia and children themselves to build and
strengthen the protective environment so that children do not get harmed and if
this happens, they can rely on buffers which will support them through difficult
circumstances and risks.

UNICEF has been providing technical support to the Ministry of

Women and Child Development to support the implementation of the
Integrated Child Protection Scheme (ICPS) which provides an excellent
opportunity to establish and strengthen a robust preventive and responsive child
protection system at state, district, and community level by creating and
reinforcing structures, promoting coordination and accountability of all
stakeholders.12 On the one hand, the scheme provides for setting up village and

11
The United Nations Children's Fund (UNICEF is a United Nations (UN) programme
headquartered in New York City that provides humanitarian and developmental assistance
to children and mothers in developing countries. It is a member of the United Nations
Development Group.
12
http://www.development4you.org/2013/09/child-protection-in-india.html accessed on 12/042017

5
block level child protection committees, with a mandate to ensure that children
are protected from all forms of violence, abuse, and exploitation, and on the
other, it ensures that a child sensitive and effective response mechanism is put
in place to provide specific services to children who have been victims of any
form of violence and exploitation. The scheme also brings with it adequate
provisions for financial and human resources to provide a range of services.13

One innovative element of the Integrated Child Protection Scheme is the

emphasis placed on family and community based modalities of care in lieu of
institutions for those children that are deprived and or separated from their
biological family. Global evidence suggest that institutions are not the most
suitable form of care to promote child‟s development as children best thrive in
family like environments. Traditionally, institutions were used as the most
common option for children without families but ICPS is bringing a change as
it is trying to promote family care modes by setting guidelines, standards and
models for State Governments and their partners. UNICEF is supporting the
government in building capacity for this change.

In addition, UNICEF implements a number of programmes that promote

the establishment of a protective environment for children at local level in
partnership with State Governments, District Administrations, and Civil
Society. The focus of these interventions is to strengthen the district and village
level child protection mechanisms, ensuring that children are going to school,
learning, and not working, to mobilize communities to promote social and
cultural norms to address issues such as child marriage, trafficking and child
labour, and linking vulnerable families with social protection programmes of
the government.

1.1.2 Child Protection and National Human Rights Commission

The National Human Rights Commission (NHRC) is an embodiment of

India‟s concern for the promotion and protection of human rights. Ever since
the NHRC came into existence, it has been concerned about the plight of

13
Ibid

6
juveniles who come in conflict with law and children who are in need of care
and protection. While the Law Division of the NHRC has been dealing with
complaints; the Policy Research, Projects and Programmes Division of the
NHRC has been monitoring the implementation of the related Act at the
national level as well as studying and recommending effective application of
those international instruments that intend to improve the overall functioning of
the juvenile justice system in the country14.

1.1.3 Rights of the Child

There is unanimity on the importance of protecting children and their

right to freedom and dignity. It was enshrined in the Constitution of India. Yet
there have been gross violations of children‟s rights since independence and
serious gaps in the delivery of services for children. There is a need therefore to
understand the core principles for delivering services to children and an
adherence to a rights based perspective. Recent enactments, such as the
Juvenile Justice Act 201515and protection of children from sexual
offences16have been child centric clearly emphasizing the rights of children.
Some policies like the Integrated Child Development Scheme (ICDS)17
and Integrated Child Protection Scheme(ICPS)18 have also shown that
decentralization and involvement of the community and civil society as equal
14
http://www.development4you.org/2011/12/juvenile justicesysteminindia.html/ accessed on
03/04/ 2017
15
Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by Parliament of
India. It aims to replace the existing Indian juvenile delinquency law, Juvenile Justice (Care and
Protection of Children) Act, 2000, so that juveniles in conflict with Law in the age group of 16–
18, involved in Heinous Offences, can be tried as adults. The Act came into force from 15 January
2016
16
Child sexual abuse laws in India have been enacted as part of the nation's child
protection policies. The Parliament of India passed the 'Protection of Children Against Sexual
Offences Bill, 2011' regarding child sexual abuse on May 22, 2012 into Act. The rules formulated
by the government in accordance with the law have also been notified on th November 2012 and
the law has become ready for implementation
17
Integrated Child Development Services (ICDS) is an Indian government welfare programme
which provides food, preschool education, and primary healthcare to children under 6 years of age
and their mothers. These services are provided from Anganwadi centres established mainly in
rural areas and staffed with frontline workers.[1] In addition to fighting malnutrition and ill health,
the programme is also intended to combat gender inequality by providing girls the same resources
as boys.
18
The Integrated Child Protection Scheme (ICPS) is a centrally sponsored scheme aimed at
building a protective environment for children in difficult circumstances, as well as other
vulnerable children, through Government-Civil Society Partnership

7
partners with the government are important components for effective
realization of children‟s rights.

The Constitution of India recognizes the vulnerable position of children

and their right to protection. The framers of the Constitution of India have also
become fully aware of their responsibility towards children. This awareness is
reflected in the constitutional provisions which are intended for protecting the
rights of children. Following the doctrine of protective discrimination, it
guarantees in Article 15 special attention to children through necessary and
special laws and policies that safeguard their rights. The right to equality,
protection of life and personal liberty and the right against exploitation are
enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e) 39(f) and
reiterate India's commitment to the protection, safety, security and well-being
of all its people, including children. The articles read as follows:

 Article 14: The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India;

 Article 15: The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them;

 Article 15 (3): Nothing in this article shall prevent the State from
making any special provision for women and children;

 Article 19(1) (a): All citizens shall have the right (a) to freedom of
speech and expression;

 Article 21: Protection of life and personal liberty-No person shall be

deprived of his life or personal liberty except according to procedure
established by law;

 Article 21A: Free and compulsory education for all children of the age
of 6 to 14 years;

 Article 23: Prohibition of traffic in human beings and forced labour-

Traffic in human beings and beggars and other similar forms of forced

8
 labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law;

 Article 24: Prohibition of employment of children in factories, etc. -No

child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment;

 Article 39: The state shall, in particular, direct its policy towards
securing:

(e) 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 vocations unsuited to their
age or strength;

(f) 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.

1.2 PRINCIPLES OF CHILD CENTRIC POLICIES AND LAWS

Based on its experience, the National Commission for Protection of

Child Rights (NCPCR)19 has evolved an understanding of the core principles
that have to be adhered to in formulating policies and delivering services,
adjudication of justice for children, as well as making legislations for children.
Thus, for example, five essential management principles, viz. decentralization,
flexibility, institution building processes, convergence and listening to children
and their voices should inform and guide formulation of policies and delivering
of services. This would enable ownership by the gram panchayats and the
community of the programme to protect children and where they would be

19
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament
(December 2005). NCPCR is a statutory body under the CPCR Act,2005 under the administrative
control of the Ministry of Women & Child Development ,Government of India. The Commission's
Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in
consonance with the Child Rights perspective as enshrined in the Constitution of India and also
the UN Convention on the Rights of the Child.

9
involved in addressing the needs of each and every child. 20 It would also entail
solutions to the problem based on local context and dealing with the matter
with a sense of urgency. Therefore, a rigid centrally sponsored scheme with
directions from an approved budget line may not always be a suitable solution.
All actions are to be institutionalized and taken up in a predicable manner and
not in an ad hoc fashion. Also, considering that entitlements to health, nutrition,
education and so on are mutually interdependent it is necessary that the
concerned departments do not function in silos but converge their plans and
services at least at the level of block and district. 21

Even regarding the process of rendering of justice to children there is a

need for special measures at every stage of adjudication that deals with child
victims and witnesses, i.e., children in contact with law and children in need of
care and protection. This would require the introduction of child jurisprudence,
a child focused procedure code, a well-trained cadre of the judiciary on child
rights, and adequate space and opportunity for children to seek justice under
humane and „child friendly‟ circumstances. Children are to remain protected
and not further victimized where maintenance of dignity, privacy and safety of
the child shall be of central concern at every stage of adjudication. Child
centered jurisprudence should also provide for reformative and restitutive
justice.

All legislations for protection of child rights have to take categorical and
unambiguous position on children‟s rights, ensuring state commitment and
obligation to provide all structures, institutions and processes form delivering
services to children. The legislations are to adhere to principles of universality
as against targeting equity and social justice to cover all children up to 18 years
of age. Special provisions for affirmative action for the disadvantaged children
are to be included in all legislations, in the framework of rights and universal
coverage. Many of these principles that are based on rights based perspective

20
National Commission For Protection of Child Rights available at www. ncpcr.gov.in/view_ file.
php?fid=407
21
Ibid

10
have been incorporated in some of the recent legislations such as the right to
education act or the act to protect children from sexual offences.22

1.3 NATIONAL POLICIES AND LEGISLATIONS ADDRESSING

CHILD RIGHTS

The Fundamental Rights and Directive Principles of the Indian

Constitution provide the framework for child rights. Several laws and national
policies have been framed to implement the commitment to child rights.

(a) National policies: The major policies and legislations formulated in the
country to ensure child rights and improvement in their status include:

 National Policy for Children, 1974

 National Policy on Education, 1986

 National Policy on Child Labour, 1987

 National Nutrition Policy, 1993

 Report of the Committee on Prostitution, Child Prostitutes and Children

of Prostitutes and Plan of Action to Combat Trafficking and
Commercial Sexual Exploitation of Women and Children, 1998

 National Health Policy, 2002

 National Charter for Children, 2004

 National Plan of Action for Children, 2005

23
National Charter for Children, 2004 is the intent to secure for every
child the right to a healthy and happy childhood, to address the root causes that
negate the healthy growth and development of children, and to awaken the
conscience of the community in the wider social context to protect children
from all forms of abuse, while strengthening the family, society and the nation.
This Charter has the following sections on child protection:

22
Ibid
23
availale at https://www.nls.ac.in/.../National%20charter%20for%20children% 20200/accessed
on 23/03/2017.

11
  Survival, life and liberty;

 Protection from economic exploitation and all forms of abuse;

 Protection of the girl child;

 Care, protection, welfare of children of marginalised and disadvantaged

communities;

 Ensuring child-friendly procedures.

(b) National Plan of Action for Children (NPAC), 2005 was formulated by the
then Department of Women and Child Development (now MWCD) in 2005.
The Plan is being monitored by the Prime Minister's Office. The Action Plan
aims at ensuring all rights to children up to the age of 18 years. It affirms the
government's commitment towards ensuring all measures for the survival,
growth, development and protection of all children. It also aims at creating an
enabling environment to ensure protection of child rights. States are being
encouraged to formulate State Plans of Action for Children in line with NPAC.
The National Plan has identified several key priority areas that include
children's right to survival, development, protection and participation besides
monitoring and review of policies and programmes. The NPAC also stresses
the need for budgetary allocations to achieve child protection goals.

Some of the Important National legislations for protection of child rights in

India are:

 Guardian and Wards Act, 1890

 Factories Act , 1954

 Hindu Adoption and Maintenance Act, 1956

 Probation of Offenders Act, 1958

 Bombay Prevention of Begging Act, 1959

 Orphanages and Other Charitable Homes (Supervision and Control) Act,

1960

12
  Bonded Labour System (Abolition) Act, 1976

 Immoral Traffic Prevention Act, 1986

 Child Labour (Prohibition and Regulation) Act,1986

 Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1987

 Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)

Act, 1994

 Persons with Disabilities (Equal Protection of Rights and Full

Participation) Act, 2000

 Juvenile Justice (Care and Protection of Children) Act, 2000

 Juvenile Justice (Care and Protection of Children) Act, 2015

 Commission for Protection of the Rights of the Child Act, 2005

 Prohibition of Child Marriage Act 2006

 POCS0 ACT 2012

1.4 NTERNATIONAL COMMITMENT TOWARDS CHILD

PROTECTION

India is signatory to a number of international instruments and

declarations pertaining to the rights of children to protection, security and
dignity. It acceded to the United Nations Convention on the Rights of the Child
(UNCRC) in 1992, reaffirming its earlier acceptance of the 1959 UN
Declaration on the Rights of the Child, and is fully committed to
implementation of all provisions of the UNCRC. In 2005, the Government of
India accepted the two Optional Protocols to the UNCRC, addressing the
involvement of children in armed conflict and the sale of children, child
prostitution and child pornography.24 India is strengthening its national policy
and measures to protect children from these dangerous forms of violence and

24
available at https://www.loc.gov/law/help/child-rights/international-law.php/accessed on
12/04/2017.

13
exploitation. India is also a signatory to the International Conventions on Civil
and Political Rights, and on Economic, Social and Cultural Rights which apply
to the human rights of children as much as adults.

Three important International Instruments for the protection of Child

Rights that India is signatory to, are:

CONVENTION ON THE RIGHTS OF THE CHILD (CRC):

CRC was adopted by the UN General Assembly in 1989, is the widely

accepted UN instrument ratified by most of the developed as well as
developing countries, including India. The Convention constitutes the pillar of
children human rights law. The chief intention of the Convention is to protect
all children in the world and establish similar international legal obligations for
States parties. The intention of the Convention should be regarded as a
revolutionary movement for the protection of sovereignty of the rights of the
child. The Convention calls upon States parties to improve family conditions
and lays a heavy weight on the concept of non-discrimination or race.

The concepts of ethnicity as well as nationality are also highly valued by

the Convention. Thus, the purpose of Convention is to unequivocally protect
the primary and basic elements of the rights of the child. There are actually
four core principles in the framework of this significant international law-
making treaty which must be introduced:

1) The best interest of the child as opposed to those of parents,

2) Enjoying the right of the child with a non-discrimination method,

3) Having access to basic rights which include right to life, and

4) Survival development as well as respecting the right to participate in the

proceedings or hearings which may positively affect their rights in any
other domestic procedures.

The purpose of these four core principles is to ensure the basic requirements of
civil, political, economic, social, and cultural rights and vice versa.Although
the Convention has been signed and ratified by the India delegations and
14
governments, they have actually chosen different national and international
policies concerning the implementation of the provisions, rules, regulations and
principles of the Convention.
Substance abuse among children has become an issue of concern
throughout the world. Increasing substance abuse and its impact on physical
and psychosocial health is a worldwide public health concern affecting the
early youth and subsequently the whole life of the individuals. We need to
guard the integrity of childhood now and into the future. Viciousness in the
lives of children can take direct and indirect forms.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN (CEDAW):

CEDAW is also applicable to girls under 18 years of age. Article 16.2 of

the Convention lays special emphasis on the prevention of child marriages and
states that the betrothal and marriage of a child shall have no legal| effect and
that legislative action shall be taken by States to specify a minimum age for
marriage.

SAARC CONVENTION ON PREVENTION AND COMBATING

TRAFFICKING IN WOMEN AND CHILDREN FOR PROSTITUTION:
It emphasizes that the evil of trafficking in women and children for the
purpose of prostitution is incompatible with the dignity and honor of human
beings and is a violation of basic human rights of women and children.

1.5 JUVENILE JUSTICE SYSTEM IN INDIA

Independence ushered in a new era for children in the country. The
Constitution of India took care of survival, development and protection needs
of children by making relevant provisions in „Fundamental Rights‟ and
„Directive Principles of State Policy‟.
Juvenile Justice (Care and Protection of Children) Act, 2015 has been
passed by Parliament of India.It aims to replace the existing Indian juvenile
delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000,
so that juveniles in conflict with Law in the age group of 16–18, involved in

15
Heinous Offences, can be tried as adults and to meet in accordance with the
International conventions and present social development. The Act came into
force from 15 January 2016.

The new Act under lying following basic principles:

Presumption of innocence.

Principles of dignity and worth.

Principles of participation with due regard to maturity.

Principles of best interest of the child.

Principles of family responsibility to take care.

Principles of ensuring safety without my abuse of the child.

Positive measures for wellbeing and development of child.

Principles of non-accusatory or non-stigmatizing semantics.

Principles of non-waiver of rights.

Principles of equality and non-discrimination.

Principles of right to privacy and confidentiality

Principles of institutionalization should be last resort.

Principles of Repatriation and restoration.

Principles of fresh start-erasing of past records.

Principles of diversion (without resorting to Judicial proceedings)

Principles of natural justice.

The Juvenile Justice (Care and Protection of Children) Act, 2015 is a

comprehensive legislation that provides for proper care, protection and
treatment of children in conflict with law and children in need of care and
protection by catering to their development needs, and by adopting a child
friendly approach in the adjudication and disposition of matters in the best

16
interest of children and for their ultimate rehabilitation through various
institutions established under the Act. It conforms to the UN Convention on the
Rights of the Child, the UN Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules) 1985, the UN Rules for the Protection of
Juveniles Deprived of their Liberty and all other relevant national and
international instruments.25 It prescribes a uniform age of 18 years, below
which both boys and girls are to be treated as children. A clear distinction has
been made in this Act between the juvenile offender and the neglected child. It
also aims to offer a juvenile or a child increased access to justice by
establishing Juvenile Justice Boards and Child Welfare Committees. The Act
has laid special emphasis on rehabilitation and social integration of the children
and has provided for institutional and non-institutional measures for care and
protection of children. The non-institutional alternatives include adoption,
foster care, sponsorship, and after care. Some of the following sections of the
Act significantly deal with child abuse:

Section 23: Punishment for cruelty to juvenile or child: The Act provides for
punishment (imprisonment up to six months) if a person having the actual
charge of, or control over, a juvenile or the child, assaults, abandons, exposes
or wilfully neglects him/her, causes or procures him/her to be assaulted,
abandoned, exposed or neglected in any manner likely to cause such
juvenile/child unnecessary mental or physical suffering.

Section 24: Employment of Juvenile or Child for Begging: The Act provides
for punishment (imprisonment for a term which may extend to 3 years and
fine) if a person employs or uses any juvenile/child for the purpose or causes
any juvenile to beg.

Section 26: Exploitation of Juvenile or Child Employee: The Act provides for
punishment (imprisonment for a term which may extend to 3 years and fine) if
a person ostensibly procures a juvenile/child for the purpose of any hazardous

25
available at www.un.org/documents/ga/res/40/a40r033.htm/accessed at 23/06/2017

17
employment, keeps him in bondage and withholds his earnings or uses such
earning for his own purposes.

1.6 CHILD SEXUAL ABUSE IN INDIA

Child sexual abuse laws in India have been enacted as part of the
nation's child protection policies. Fifty three percent of children in India face
some form of child sexual abuse. The need for stringent law has been felt many
times.26Goa Children's Act, 200327was the only specific piece of child abuse
legislation before the 2012 Act. The Parliament of India passed the Protection
of Children against Sexual Offences Bill, 2011regarding child sexual abuse on
May 22, 2012 into Act.28The rules formulated by the government in accordance
with the law have also been notified in November 2012 and the law has
become ready for implementation.29Before POCSO Act, most of the sexual
offences are covered under IPC 1860. But does not provide for all types of
sexual offences against children and its general legislation. It does not
distinguish between adult and child victims. 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.

26
"Need stringent laws to curb child sexual abuse: Tirath". News.in.msn.com. 2012-03-053 March
2012. Retrieved 14 May 2012. Also see Taneja, Richa (13 November 2010). "Activists bemoan
lack of laws to deal with child sexual abuse". DNA India. Retrieved 14 May 2012.Also,"Need
stricter laws to deal with child abuse cases: Court". Indian Express. 12 April 2011. Retrieved
2012-05-1414 May 2012.
27
"CHILDLINE India Foundation: Documents - Cause View Point - CHILD SEXUAL ABUSE-
The Law and the Lacuna". Childlineindia.org.in. 2010-01-19. Retrieved 2012-05-14.
28
"Parliament passes bill to protect children from sexual abuse". NDTV. May 22, 2012
29
Law for Protecting Children from Sexual Offences

18
 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
criminalize sexual abuse of children.

POCSO ACT 2012: The new Act30provides for a variety of offenses under
which an accused can bepunished.
It defines a child as a person under age of 18 years age. It encompasses the
biological age of the child and silent on the mental age considerations. A recent
case in SC has been filed where a women of biological age 40yrs 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.31Finally in 2017 in the case of Ms. Eera v. State (Govt.NCT of
Delhi)32the court held that on a reading of the POCSO Act, it is clear to us that
it is gender neutral. In such a situation, to include the perception of mental
competence of a victim or mental retardation as a factor will really tantamount
to causing violence to the legislation by incorporating a certain words to the
definition. By saying “age” would cover “mental age” has the potential to
create immense anomalous situations without there being any guidelines or
statutory provisions. Needless to say, they are within the sphere of legislature.
To elaborate, an addition of the word “mental” by taking recourse to
interpretative process does not come within the purposive interpretation as far
as the POCSO Act is concerned.

30
The Protection of Children from Sexual Offences Act, 2012 pdf
31
encompass-mental-age/article17436626.ece
32
2017 SCC OnLine SC 787

19
 POCSO Act, 2012 recognizes forms of penetration other than peno-
vaginal penetration33and criminalizes acts of immodesty against children too.
The act is gender-neutral. With respect to pornography, the Act criminalizes
even watching or collection of pornographic content involving children 34The
Act makes abetment of child sexual abuse an offense35It also provides for
various procedural reforms,36making the tiring process of trial in India
considerably easier for children. The Act has been criticized as its provisions
seem to criminalize 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 years37

The POCSO Act, 2012 make provisions for avoiding the re-
victimization of child at the hands of the judicial system and thus, it provides
for special courts which conduct the trial in-camera and without revealing the
identity of the child that is as child friendly as possible. Hence, the child may
have a parent or other known person present at the time of testifying and can
call for assistance from an interpreter, special educator, or other professionals
while giving evidence. Above all, the Act stipulates that a case of child sexual
abuse must be disposed of within one year from the date of the offence when it
is reported, providing speedy justice to these issues.

The act provides protection to all children under the age of 18 years
from the offences of sexual assault, sexual harassment and pornography. It
provides for stringent punishments, which have been decided as per the gravity
of the offence. The punishments range from simple to rigorous imprisonment
of varying periods along with fine.

Punishments for offences covered in the Act are

Penetrative Sexual Assault (Section 3) - Not less than seven years which
may extend to imprisonment for life, and fine (Section 4)
33
The Protection of Children from Sexual Offences Act, 2012 Chapter 2
34
POCSO ACT 2012 Chapter 3
35
POCSO ACT 2012 chapter 4
36
POCSO ACT 2012 Chapter 5,6,7
37
"Good act, bad provision". The Hindu. 26 May 2012. Retrieved 9 September 2014

20
 Aggravated Penetrative Sexual Assault (Section 5) - Not less than ten
years which may extend to imprisonment for life, and fine (Section 6)

Sexual Assault (Section 7) - Not less than three years which may extend
to five years, and fine (Section 8)

Aggravated Sexual Assault (Section 9) - Not less than five years which
may extend to seven years, and fine (Section 10)

Sexual Harassment of the Child (Section 11) - Three years and fine
(Section 12)

Use of Child for Pornographic Purposes (Section 13) - Five years and
fine and in the event of subsequent conviction, seven years and fine
(Section 14 (1)).

1.7 SOME SPECIFIC LEGISLATION TO PREVENT SEXUAL

OFFENCES

The Immoral Traffic (Prevention) Act, 1956: In 1986, the Government of

India amended the erstwhile Suppression of Immoral Traffic in Women and
Girls Act 1956 (SITA), and renamed it as the Immoral Traffic (Prevention) Act
(ITPA) to widen the scope of the law to cover both the sexes exploited sexually
for commercial purposes and to provide enhanced penalties for offences
involving children and minors. "Child" under ITPA38 means a person who has
not completed the age of sixteen years and "prostitution" means the sexual
exploitation or abuse of persons for commercial purposes.

 Section 3: Stringent action and punishment for keeping a brothel or

allowing premises to be used as a brothel;

 Section 4: Living on the earnings of prostitution;

 Section 5: Procuring, inducing or taking a person for the sake of

prostitution;

38
The Immoral Traffic (Prevention) Act, 1956 available at https://indiankanoon.org/doc/69064674

21
 Section 6: If any person is found with a child in a brothel it shall be
presumed, unless the contrary is proved, that he has committed an
offence of detaining a person in premises where prostitution is carried
on;

 Section 6(1B): The punishment consists of imprisonment of either

description for a term which shall not be less than 7 years, but which
may be for life or for a term, which may extend to 10 years and shall
also be liable to fine, with a provision for less than 7 years under special
circumstances;

 Section 6(2A): A child or minor found in a brothel, on medical

examination, detected to have been sexually abused, it shall be
presumed, unless the contrary is proved, that the child or minor has been
detained for purposes of prostitution or, as the case may be, has been
sexually exploited for commercial purposes;

 Section 21: Establishment of Protective Homes by the State

Government.

 Proposed amendments to the ITPA:

 Section 2(a) to raise the age of child from 16 to 18 years; Omission of

the terms 'minor' and 'major' wherever they occur in the Act;

 Section 3 to enhance the punishment for a person who keeps or manages

or acts or assists in keeping or management of a brothel;

 New Section 5A to define the offence of "Trafficking in Persons" on the

lines of International Protocol to Prevent, Suppress and Punish
Trafficking in Persons.

 New Section 5B to provide punishment for the said offence;

 New Section 5C to provide punishment for a person who visits or is

found in a brothel for the purpose of sexual exploitation;

22
  Section 6 to enhance the punishment provided for the offence of
detaining a person in a premise where prostitution is carried on;

 Omission of Section 8;

 Section 10A to enhance the term of detention in a corrective institution

from 5 to 7 years;

 Section 13(2-5) confers the powers of Special Police Officer under this
Act to the Sub-inspector in the place of Inspector of Police;

 New Section 13A to constitute a Central Authority by the Central

Government for the purpose of effectively preventing and combating the
offence of trafficking in persons;

 New section 13B that empowers the State Government to constitute a

State Authority for the purpose of effectively preventing and combating
the offence of trafficking in persons;

 Omission of Section 20;

 Section 22 to make provision for in camera proceedings to protect the

privacy and dignity of the victims;

 Amendment of the Schedule to the Prevention of Money-Laundering

Act, 2002 to make applicable the provisions of confiscation of the
property of the persons involved in the offence of trafficking in persons.

 From the said Schedule, the entry relating to Section 8 of the ITPA is
being omitted as a consequential nature.

Child Labour (Prohibition and Regulation) Act, 1986: The Act was
formulated to eliminate child labour and provides for punishments and
penalties for employing children below the age of 14 years in from various
hazardous occupations and processes. The Act provides power to State
Governments to make Rules with reference to health and safety of children,
wherever their employment is permitted. It provides for regulation of work
conditions including fixing hours of work, weekly holidays, notice to

23
inspectors, provision for resolving disputes as to age, maintenance of registers
etc. Through a recent notification, child domestic workers up to 14 years of age
working in hotels and dhabas have been brought within the purview of the Act.
It is one step towards the total elimination of child labour.

The Prohibition of Child Marriage Act, 2006: The Child Marriage Restraint
Act, 1929 has been repealed and the major provisions of the new Act include:

 Every child marriage shall be voidable at the option of the contracting

party who was a child at the time of the marriage;

 The Court while granting a decree of nullity shall make an order

directing the parties, parents and guardians to return the money,
valuables, ornaments and other gifts received;

 The Court may also make an interim or final order directing the male
contracting party to the child marriage or parents or guardian to pay
maintenance to the female contracting party to the marriage and for her
residence until her remarriage;

 The Court shall make an appropriate order for the custody and the
maintenance of the children of child marriages;

 Notwithstanding that a child marriage has been annulled, every child of

such marriage shall be deemed to be a legitimate child for all purposes;

 Child marriages to be void in certain circumstances like minor being

sold for the purpose of marriage, minor after being married is sold or
trafficked or used for immoral purposes, etc.;

 Enhancement in punishments for male adults marrying a child and

persons performing, abetting, promoting, attending etc. a child marriage
with imprisonment up to two years and fine up to one lakh rupees;

 States to appoint Child Marriage Prohibition Officers whose duties

include prevention of solemnization of child marriages, collection of
evidence for effective prosecution, creating awareness and sensitization
of the community etc.
24
The Commissions for the Protection of Child Rights Act, 2005:The Act
provides for the Constitution of a National and State Commissions for
protection of Child Rights in every State and Union Territory. The functions
and powers of the National and State Commissions will be to:

 Examine and review the legal safeguards provided by or under any law
for the protection of child rights and recommend measures for their
effective implementation;

 Prepare and present annual and periodic reports upon the working of
these safeguards;

 Inquire into violations of child rights and recommend initiation of

proceedings where necessary;

 Undertake periodic review of policies, programmes and other activities

related to child rights in reference to the treaties and other international
instruments; Spread awareness about child rights among various
sections of society;

 Children's Courts for speedy trial of offences against children or of

violation of Child Rights

 State Governments and UT Administrations to appoint a Special Public

Prosecutor for every Children's Court.

1.8 HYPOTHESIS OF THE RESEARCH WORK

Children being soft targets are extremely vulnerable to natural or man made
disasters, cruel twists of fate, criminal elements and the society‟s sins of
omission and commission. There are two categories of children who come
under the purview of the Juvenile Justice system in India: Those who are in
need of care and protection – mostly victims of abuse, violence, exploitation
and neglect – and those coming in conflict with law. When we analyses the Act
we find that there are the enforcement problems under the Juvenile Justice Act
2015 and the recently enacted POCSO act 2012 especially with the
implementation of the Act. The provisions of these two acts form a lethal

25
combination, and provide a constricted background to provide protection and
sound development of child. In view of the existing condition and dire need of
change for strict implementation to provide teeth to the existing laws, this
hypothesis rest on presumption that if the situation remains unchanged the
repercussion of this shall expunged the objective of the Juvenile justice system.
For that a comprehensive study which deals with the subject “Juvenile Justice
and Protection of Children from Sexual Offences (POCSO) Act, 2012- A
Socio-Legal Analysis of Existing Laws and Practices” need to be done.
1.9 STATEMENT OF PROBLEM

With the repeated string of sexual abuse or rape of children being reported
across the nation and a public outcry raging on the streets like molten lava
flowing uncontrolled from a bursting volcano, the victimized and abused child
suffers in silence. Traumatized, dejected and horrified family members of
unfortunate victims find themselves helpless, confused and unable to cope up
with the heinous crime. Even though on 22 May 2012, the Parliament passed
the Protection of Children against Sexual Offences Act, 2012 (POCSO) and
which came into force on 14 November 2012, this special law to protect
children from offences of sexual assault, sexual harassment and pornography,
remains an unimplemented law, unknown to most and beyond knowledge or
information of those who need to apply it. Sadly, the result is that POCSO, an
Act, which is a necessity in India where,as per census 2011 more than 440
million children counted below 18 years of age constituting 37% of the total
population of the country.Over 53 percent of children reportedly surveyed in
2007 stated that they had experienced one or more forms of sexual abuse, is not
complied with despite being on the statute book. Rhetoric demands stiff
penalties, expeditious new laws and fast track courts little realizing that
POCSO, as a wholesome law already says it all. The researcher problem is
based on certain drawbacks in the POCSO law around the following issues
which will be specifically focused which undermines the effectiveness of
existing legislation.

26
1. Consent: if the child/adolescent refuses to undergo medical examination
but the family member or investigating officer is insisting for the
medical examination, the POCSO Act is silent and does not give clear
direction. There is an urgent need to clarify the issue of consent in such
cases. However, it would be prudent to take informed consent from
parent when the survivor is a child (below 12 yr) and consent from both
parent and the victim, if the survivor is an adolescent (age group from
12 -18 yr). However, emergency treatment needs to be initiated without
getting into these consent issues or legality to protect the life of the child
Moreover the act has raised the age of consent from 16 to 18 years
without considering scientific evidence on adolescent sexuality.
Children involved in sexual activity will be treated as juveniles in
conflict with the law. In cases of consensual sexual relationships
between those in the age group of 16 and 18 years, how can we
distinguish between the victim and the perpetrator?

2. Medical examination: the POCSO Act, Section 27(2) mandates that in

case of a female child/adolescent victim, the medical examination
should be done by a female doctor. However, the law mandates the
available medical officer to provide emergency medical care. On the
other hand, the Criminal Law amendment act, Section 166A of Indian
Penal Code mandates the Government medical officer on duty to
examine the rape victim without fail. This conflicting legal position
arises when female doctor is not available.

3. Treatment cost: The law has casted legal obligation on the medical
fraternity and establishment to provide free medical care to the
survivors. If there are no proper facilities or costly procedure is required,
the State should take responsibility of reimbursing the cost, otherwise
hospital may provide substandard medical treatment procedure or may
deprive the survivor from comprehensive treatment.

27
4. Consented sexual intimacy: Sexual contact between two adolescents or
between an adolescent and an adult are considered illegal under the
POCSO Act 2012, because no exception has been granted in the Act
under which an act of sexual encounter with a person under 18 is an
offence irrespective of consent or the gender or marriage or age of the
victim/the accused. However, it is proposed that any consensual sexual
act that may constitute penetrative sexual assault should not be an
offence when it is between two consenting adolescents, otherwise both
the adolescents will be charged under the POCSO Act, 2012. On the
other hand, the latest amendment of the Indian Penal Code concerning
rape laws in 2013 clearly reports that the age of consent for sex has been
fixed to 18 yr, hence, anyone who has consensual sex with a child below
18 yr can be charged with rape, which may increase the number of rape
cases. One more serious repercussion is that obstetric and gynecologists
need to report all the MTP (medical termination of pregnancy) cases
performed on children (below 18 yr).

5. Child marriage: Child marriage and consummation of child marriage are

considered illegal under the POCSO Act, 2012. In India even though
child marriage is prohibited under secular law, it enjoys sanction under
certain Personal Law thus complicating matters. These issues need to be
addressed when the law is open for amendment.

6. Most states have not yet notified special courts or appointed special
public prosecutors. Cases of offences against children are therefore still
being brought before regular criminal courts, thus denying children their
right to a child-friendly system and structure.

7. Training: there is an urgent need to train the medical, teachers, judicial,

advocates and law enforcing agencies in the POCSO Act, 2012.
Research, information, monitoring and sensitizing the public are the
biggest challenges. Training all the stakeholders is one of the important
variables in providing comprehensive care and justice. There is also an

28
 urgent need to train all the medical undergraduates and primary health
care doctors in providing child friendly interview, structured assessment,
collecting evidence, prophylaxis for sexually transmitted diseases and
HIV, family counseling and regular follow up.

8. Role of mental health professional: The definitive signs of genital

trauma are seldom seen in cases of child sexual abuse. Hence, the
evaluation of child sexual abuse victim requires special skills and
techniques in history taking, forensic interviewing and medical
examination. The role of mental health professional is crucial in
interviewing the child in the court of law. Child sexual abuse can result
in both short-term and long-term harmful mental health impact. Mental
health professionals need to be involved in follow up care of the victim
with regard to emergence of psychiatric disorders, by providing
individual counselling, family therapy and rehabilitation.

9. Reporting: It is well known that the cases of child sexual abuse are
usually not reported. Further, knowing and reporting child sexual
offence is highly difficult and highly personal decision for many family
members and also for survivors. Both survivors and family members
feel embarrassed and ashamed bearing the guilt, anger, frustration and
emotional turmoil of the act. The fear of re-victimization because of
medical examination, criminal justice system and poorly informed
society members keeps them silent and undergo torture for long
duration. A golden rule to all the medical professionals working with
children is to report all reasonable degree of suspicion in child sexual
abuse to the legal authorities.39 Hence, professionals need to keep watch
on sexual abuse, explore and assess the child thoroughly.

The researcher will also be mapping the issues on the following research
questions:

1. Why society is now more concerned about sexual abuse?

39
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/accessed on 21/09/2017.

29
 2. What are the main sources of evidence?

3. What are the effects of Child sexual Abuse on children?

4. What can be done to make children safer?

5. What are the laws related with Child sexual Abuse in India and in other
Countries.

6. What are the views of public in large over POCSO?

7. How effective the POCSO Act 2012 and Juvenile Justice (Care and
Protection Act) Act 2015 and its implementation.

Thus, the purpose of this study is to delve into the socio-legal aspects of
child sexual abuse across India and reasons behind despite the existence of a
various legislation that is prohibitive in nature towards the specific issue of
child sexual abuse.

1.10 AIMS AND OBJECTIVES OF THE RESEARCH

The objective of this research is to develop an understanding to assess

the magnitude and forms of child abuse in India and to present the overview of
the Juvenile Justice System(JJS) in India as it exists today with all
inadequacies:

 To provide legal support to children in need of care, protection and

justice, assists in tracing families and bringing services to children (such
as counselling, sponsorship and rehabilitation support),

 Advocates for change in law and programmes,

 Monitors implementation of juvenile justice by engaging with the

system as well as through research and documentation.

 To find the reasons for the slow process of and resistance to change.

 The find reasons leading to the gaps in implementation of the JJS.

 To bring the true picture of the various bodies framed under the Act and
whether they discharge their duties effectively.

30
  Whether the existing provisions are sufficient for proper need, care and
education to the juvenile/child in the homes

 To study the profile of the abused children and the social and economic
circumstances leading to their abuse.

 To develop an instrument through empirical study and to determine the

probability of child sexual abuse to estimate the questionnaire's
discriminant validity.

 Childhood sexual abuse and review the impact it can have, explore the
long-term effects and symptoms associated with childhood sexual abuse,
and counseling implications.

 To find and study the recommended strategies and programs

interventions for preventing and addressing issues of child abuse.
To address some preliminary areas of concern with the substantive and
procedural aspects of the law dealing with the issue of child sexual
abuse and the overarching scheme of child protection in India.

 To study the effectiveness of the recent POCSO Act, 2012 in the

investigation procedure.

 To suggest some changes to provide a mutually effective legal

framework to achieve the objective of this utmost important and
widespread social problem. To bring out the shortcoming in the system
and give suggestion how that can be deal with to have effective
enforcement of the Act.

1.11 RESEARCH METHODOLOGY

The researcher will undertake an extensive cross-sectional

qualitativedoctrinal study by using various primary and secondary sources for
the purpose of the study. Regarding the analysis of the legal provision and
judicial decision the method would be analytical.For the purpose of empirical
study primary data will be collected from the children using a self-reporting
anonymous questionnaire, conducted in six schools with 100 students.Efforts

31
were made at all stages of research to follow strict professional and ethical
standards at all times, considering the sensitive topic of the study and the young
age of the respondents. With such a research design in place, the data will be
synchronized, synthesized and systematized to develop in depth an
understanding of the phenomenon of child sexual abuse and thereby culling out
the socio-legal niceties and the challenges posed.

This research is based on extensive research on socio-legal issues.

Secondary data will be reviewed initially through the university library using a
range of information sources, academic and commercial abstracts,
bibliographic databases, and Internet search engines.

1.12 DATA COLLECTION

The study will be carried through doctrinal research into the various
arguments brought through by child rights activists, government bodies,
legislative actions, recent court cases, law commission reports and practices in
other countries that could contribute towards the development of law in India.
Qualitative data collected through a cross-sectional doctrinal research would
aid the researcher in crystallizing the issues.

For the purpose of empirical study on CSA data was collected by way of
semi-structured questionnaire. A questionnaire containing 30 questions was
prepared.To test current situation of CSA help from an on-line survey will be
taken to gather primary source data from institutions currently engaged in the
survey on this issue to collect quantitative data. The researcher proposes to
undertake both empirical and non-empirical study to understand and analyze
the sensitive issue, keeping in mind the socio-cultural background of the Indian
society.

1.13 SCOPE OF THE RESEARCH

This study seeks to address one of the burning problems our country is
facing today. Child sexual abuse as had been already explained above had been
in existence since time immemorial but its nature and characteristics have been

32
growing with every passing day. The observations and information received by
carrying out the preliminary study have been that there is a serious drawback in
the Prohibition of Child Sexual Offences Act, 2012. It has also come to light
that there is a need to harmonize the various laws and establish primacy of the
POCSO over the other existing laws.

1.14 UTILITY AND SIGNIFICANCE OF THE RESEARCH WORK

Indian society is primarily traditional and its impact on child development is

severe it becomes important to understand the importance of sexual education,
counselling and training to the children in order to prevent the indirect crime
like trafficking, child labor, resulting in sexual abuse of the children. The
emerging criminal jurisprudence and laws reflective of them are being framed
towards protecting children, however, the area of child sexual abuse
especially the children of poor background are a part of this distinct cohort who
are contracted in these abuses and victimized easily, have been neglected to a
great extent. An extensive study into the needs of this group therefore becomes
indispensable. The study will prove seminal in realizing the Issues of children
crime of prime concern and how these issues is to be effectively implemented
in providing the juvenile justice in reality.

This study on juvenile justice will examine the statistics relating to

implementation of the legislation to find out the direction, rate, and lacunae in
the growth of the JJS. This study on juvenile justice will identify the areas of
fragmentation in the JJS. The researcher will try totrace the vision and
commitment of the policy makers of the Juvenile Justice System. This study on
juvenile justice will describe the nature, scope, and structure of juvenile justice
in India and the researcher will analyze in depth the strengths and weaknesses
of the existing legislation for evolving a comprehensive and integrated Juvenile
Justice system in India.The research study has been arranged under the
following eight chapters:Chapter- 1the first chapter shall be introductory in
nature and would provide a broad panoramic and historical overview of the
child sexual offences, juvenile protective laws and practices prevalent in India.

33
It shall deal with problems, project of study and methodology. The concept
shall be introduced and the problem will be highlighted in it. Chapter –2deals
with the Conceptualization of Child Sexual Offences in India and Its Types. It
focusses on definition, meaning, causes and of child sexual offences and its
types. In this chapter, the conceptualization of child sexual abuse, its impact is
highlighted. The researcher has discussed other factors which are very
responsible for the child sexual abuse just like parent‟s relationship with their
children, family atmosphere etc. Chapter- 3deals withInternational Legal Frame
Work and Standards for the Protection of Children from Sexual Offences. In
thisChapter the researcher has tries to study the global perspective of the
protection of children from sexual abuses thereby making a thorough study of
different International conventions and laws existing in different countries. The
researcher has try to analyze whether the other countries have promised for the
rights of the children in a better way than their other counterparts.Chapter –
4deals with the Protection of Children from Sexual Offences Act (POCSO Act)
2012: A Critical Analysis,the researcher has try to highlight the law related to
child sexual abuse and its critical analysis. In this chapter, the enactment by
the parliament and its application in letter and spirit has been discussed
thoroughly. The researcher‟s main aim through this chapter is to make the
critical appraisal by racing the various loopholes in the Act.Chapter- 5deals
with the Juvenile Justice Vis-À-Vis POCSO Act, 2012. In this chapter, the
researcher shall try to highlight the modern concept of juvenile justice in India
and the harmonious construction of the IPC, POCSO AND JJ Act 2015. It
examines the developing process of the juvenile justice system from age to age
which has been analyzed thoroughly by making the comparative and
conflicting construction of different existing provision relating to
child.Chapter- 6 entitled Investigating Child Sexual Abuse from an Empirical
Lens, deals in relation to prevalence of child sexual abuse in school going boys
and girls under 18 years. Chapter- 7deals with the Judicial Trend and Recent
Development regarding protection of children from sexual offences. In this
chapter, various case laws laid down by the Supreme Court and High Courts

34
has been studied, analyzed and discussed thoroughly. In Chapter –8the
researcher has tried to focus on providing effective solutions to the questions
raised as well as suggest effective and practical measures that can be adopted in
order to address the menace of child sexual abuse. A congregation of the
working of the Act coupled with the provisions, the burning issues of the
present society and also specific personal suggestions has been be incorporated.

****

35