CHAPTER – 1

INTRODUCTION

Children must be nurtured adequately throughout their formative years to grow up to become
valuable members of society. Because children are the most vulnerable group in society, they are
more susceptible to various abuses, especially sexual assault. It is a blatant violation of human
rights to use children for sexual pleasure, which is the definition of child sexual abuse. The
problem worsens quickly and has taken on a global nature, causing physical, emotional, and
psychic harm to children when they do not disclose it to adults.1

The first Indian government-passed law addressing the sexual abuse and exploitation of children
was the Protection of Children from Sexual Offences Act, 2012, which provided severe penalties.
However, the rising numbers of cases suggest that the Act's implementation is lacking and that
law enforcement agencies have no interest in acting against the perpetrators of this heinous
crime, as exemplified by the recent cases of gang rape in Unnao and Kathua. The government
has thus been forced to make amendments to the Act to improve its efficacy.2

The current study reviews the issues associated with child sexual abuse in India, from the
contributing factors to the implications of the crime. It critically analyses the existing legal
framework, focusing on the newly implemented amendments of the POCSO Act by exploring the
effectiveness of these adjustments and suggesting additional methods to handle this despicable
crime effectively. This study also covers child sexual abuse during the covid-19 period in India.3

One's childhood is the most critical phase of their life. They are the nation's future architects.
Therefore, the well-being of such individuals necessitates the creation of a healthful and secure
atmosphere to protect their rights. Unfortunately, despite children's fragility, the terrible situation

1
Prakash, A. (2018). Role of Prohibitory Legislation in Preventing Online Sexual Abuse of Children: A Critical
Socio-Legal Analysis. United world Law Journal, 2, 2457-0427. Prakash, A. (2018). Role of Prohibitory Legislation
in Preventing Online Sexual Abuse of Children: A Critical Socio-Legal Analysis. United world Law Journal, 2,
2457-0427.
2
Babbar, S. K. (2014). Child Welfare: A critical analysis of some of the socio-legal legislations in India. IOSR
Journal Of Humanities And Social Science, 54-60.
3
Srivastava, K., Chaudhury, S., Bhat, P. S., & Patkar, P. (2017). Child sexual abuse: The suffering untold. Industrial
psychiatry journal, 26(1), 1.
is that they are easy targets for exploitation and abuse by offenders. When we use the phrase
"child abuse," we refer to cases of children being neglected or mistreated.

The enactment of laws set values and norms for society. Laws embody the values of that
particular era. Dynamic laws that change with the efflux of time are the most effective to redress
a contemporaneous situation. Committed enforcement of laws can curtail a problem, which
otherwise would grow unchecked. Judicial intervention, when used intelligently, is a powerful
strategy to resolve a problem; it can be used as a solo strategy or as a support to other strategies.

Child protection laws have two main aims, firstly to protect and promote the welfare of the child,
and secondly to prevent the abuse of other children in the community. Legal systems have failed
in providing protection to children in cases of child abuse and exploitation. It is necessary to
enact comprehensive laws on child abuse and prevention of cruelty to children. It is also
necessary that governments be committed to enforce and implement such laws in order to
provide genuine protection to children. It has been said that 'a child who is poor in resources
should be rich in law .

India has several child-related laws. The absence of political commitment is the main reason why
children in India are not enjoying the benefit of the laws enacted to protect and promote their
rights. Politicians and lawenforcers are known to support and protect brothel owners, pimps and
traffickers in exchange for monetary consideration, and are therefore interested in subverting the
law. Legislation must recognise the decision-making capacity of children. Older children are in a
position to understand and avail for themselves their rights. Imparting child rights education to
children themselves will ensure that their rights are not trampled upon. From such an
empowerment, a children's movement could emerge. The Young People's Liberation Movement
in the United Kingdom is one such movement.

All of its members are under 21 years of age, and, among other demands, are asking for the end
of sexual, physical and emotional abuse of children. Adequate legislation, better law
enforcement, well co-ordinated international co-operation and educated communities are needed
to effectively combat child sexual abuse and exploitation. Laws should protect children, and
punish the abusers and exploiters. Strong legislation is critical to discourage sexual abuse and
exploitation of children. It is necessary to publicise prevailing laws on this subject. A clear
message must be sent to the community that the law will be applied in all its severity. Potential
perpetrators of the offence will thus be cautioned that the commission of any such offence will
be dealt with stringently. Penal action alone cannot comprehensively solve the problem.
Reformation of abusers and exploiters must be undertaken while they are undergoing their
sentence to ensure that the same situation does not arise once they are released and again in
contact with children. Conducting of training and awareness programmes on child rights is very
important.

The UN Committee on the Rights of the Child has suggested that training on child rights,
including national and international laws, should be incorporated in the curriculum of
professionals working with children, such as judges, police, doctors, social workers, teachers,
etc. It is also necessary to educate the public on child rights issues; this will empower the person
on the street to act in an informed manner in a child-related exigency.

Law, along with an attitudinal change, is crucial for the elimination of child abuse and
exploitation. Cultural, social and economic values require to be fundamentally altered to give
children their deserved dues. The government, local authorities and non-governmental
organisations play a pivotal role to satisfy the needs of the family for support and assistance in
caring for children. Non-governmental organisations are watch-dogs for ensuring that the
government performs its duty towards children, and that the existing law does not merely remain
on paper but is implemented to benefit those for whom it is enacted.

WHO claims that 40 million children between the ages of zero and fourteen are suffering from
abuse or neglect, and therefore they need health or social care. One of the types of child abuse
that affects humanity as a whole is child sex abuse. It is a global scourge, and India is facing it in
the face. The World Health Organization defines child sexual abuse as the exploitation of a child
in a sexual act they do not entirely understand, cannot agree to, and are not developmentally
prepared. It is a taboo crime that seldom gets reported because of shame or fear of social stigma.

Family members are often the perpetrators. Children's psychological, physical, mental, and
emotional development is significantly impaired by it. Despite being a landmark piece of
legislation, the passage of the Prevention of Children from Sexual Offences Act, 2012 has
increased the reporting of child sexual abuse cases in India. Still, the law suffers from numerous
flaws that hinder its successful implementation.
Due to its lack of implementation, the massive number of cases under the Act, with a relatively
low conviction rate, reflects its incompetence. The extensive media coverage of two horrific
child rape cases (the Kathua and Unnao rape cases) and numerous comparable occurrences had
prompted an amendment to the POCSO Act. It now imposes stricter and more severe penalties,
including capital punishment as a solid deterrent to criminals. However, the revised Act also has
certain shortcomings since it does not address many significant problems that must be considered
by the government immediately.

A revised version of the legislation offers no way to speed up trials and investigations, making it
impossible to execute the Act properly. Consequently, the need now is to teach law enforcement,
legal, and medical organizations about the complexities of the law's application to work together
to fight the crime of child abuse.

CHILD SEXUAL ABUSE IN INDIA; A GROWING MENACE

It is one of the most serious dangers that may affect a kid at any time before they reach maturity
since child sexual abuse includes exploitation of the child by the offender for sexual pleasure.
There may be any number of sexual favors like intercourse, oral sex, or touching private areas,
child pornography, voyeurism, and others. Around one-third of India's population comprises
children, who account for a significant percentage of the total population. 11% of the country's
children have been subjected to severe sexual abuse, while half of the country's children have
been subjected to some sexual abuse.

Females make up almost half of all child abuse victims, while boys make up about half of all
child abuse victims. A recent report from the National Crime Records Bureau reveals that more
than 24,000 instances of child abuse have been reported in India over the last six months. It is
believed that such crimes are increasing in our nation and must be dealt with immediately.
Maharashtra, Uttar Pradesh, and Tamil Nadu reported the most child-related offenses. Poverty, a
lack of sexual education, the presence of obscene posters, online material, and many harmful
traditional practices—such as child marriage, caste-based discrimination, child labor, and
Devadasi—make children susceptible to abuse. While poverty is undoubtedly a significant
contributing element, it may also be seen in wealthy communities of people of many religions
and cultures. A second reason for this issue is the disintegration of the united family structure in
contemporary times.
Child sexual abuse victims often do not report their assaults because such incidents are generally
conducted in secret, and children rarely report them to their parents. When they do, they are often
asked to remain silent out of fear of public humiliation and shame, especially when the
perpetrator is a family member. Abnormal or seductive behavior, genital bruising or bleeding,
difficulty sitting or standing, and refusing to be around children or adults are all indications of
child sexual abuse. The aftereffects of child sexual abuse are wide-ranging, both physically and
mentally. Common indicators of the abuse in victims include fear, despair, suicide attempts,
aggressiveness, defiance, loss of self-confidence, and risky behavior. The victims are left feeling
alone, scared, guilty, and concerned.

WHO IS A MINOR?

Every Indian law has its own definition of the term 'child.' Prior to the enactment of the Juvenile
Justice Act 1986, each state had its separate children's act. Every children's act differed in its
contents, including the definition of a child. In Maharashtra and Kerala, a boy child was a male
under 16 years of age, while a girl child was a female under 14 years of age, whereas in Madhya
Pradesh and Uttar Pradesh, both the boy child and the girl child were under 16 years of age.

Under the Juvenile Justice Act, a juvenile boy is the one who has not attained the age of 16 years,
and a juvenile girl is the one who has not attained the age of 18 years. The Women's and
Children's Institution (Licensing) Act 1956 defines a child as a boy or a girl who has not attained
18 years of age. A person who has not completed 14 years of age is a child under the Child
Labour (Prohibition and Regulation) Act 1986. The definition of 'child' under this law is derived
from Article 24 of the Constitution.

The Constitution prohibits the employment of a child below 14 years in any factory, mine or any
other hazardous employment. The Factories Act 1948 too does not allow a child under 14 years
to work in a factory. The Mines (Amendment) Act 1983, recognising the dangers of working in a
mine, does not allow a person below 18 years to work in a mine or any part thereof. Under the
Immoral Traffic (Prevention) Act 1986, a child means a person who has not completed the age of
16 years, and a minor means a person who has completed the age of 16 years but has not
completed the age of 18 years. A person is deemed to have attained majority on completion of 18
years under the Indian Majority Act 1875. Though under the Child Marriage Restraint Act, 1929,
a child means a person, who, if a male, has not completed 21 years of age, and if a female, has
not completed 18 years of age.

LEGISLATIVE & JUDICIAL RESPONSE

India ratified the U.N. Convention on the Rights of the Child in 1989. It was the first legally
binding international agreement that specifically applied to the welfare of children. The Act also
compels the governments to prevent children from suffering sexual abuse and exploitation in all
forms. The Indian Constitution grants certain rights and opportunities to children to ensure their
survival and growth. It is essential since children represent the future of the nation.

(i)The Indian Constitution allows the state to provide particular advantages to children for their
development.

(ii) The Constitution of India provides for children to be afforded chances and facilities to grow
in healthy ways in terms of freedom and dignity and for children and adolescents to be
safeguarded from exploitation, moral and material abandonment.

(iii) The Constitution protects the health of young children by preventing them from entering
industries or entering into other dangerous jobs. The Constitution also puts a responsibility on
the state to ensure that all children under the age of fourteen receive free and obligatory
education. In addition, the Indian Constitution states that the state should provide early childhood
education and care available to all children until they reach the age of six.

PRE-POCSO Laws

In India, child sexual abuse has been largely neglected, and it has never been recognized as a
criminal offense until recently. Rape, prostitution, and human trafficking were among the few
recognized sexual crimes against minors in India. They were all dealt with under the broad
provisions of the Indian Penal Code, 1860, which made no difference between adult and child
victims of the crime. Section 509 (insulting the modesty of a woman or girl); Section 354
(outraging the modesty of a woman or girl); and Section 509 (insulting the modesty of a woman
or girl). Sections 361 and 363: Kidnapping a minor from the custody of a legal guardian; Section
363A: Kidnapping or maiming a minor to beg; Section 361: Kidnapping a minor from the
guardianship of a legal guardian; Section 361A: Kidnapping or maiming a minor to beg; Section
361A: Kidnapping or maiming a minor for the purpose Procuration of a minor girl is covered
under Section 366A. A girl from a foreign country may be brought into the country under Section
366B. Section 372: Selling a juvenile for prostitution is prohibited.

The purchase of minors for prostitution is covered under Section 373. Section 375 (Raping) of
the Penal Code In Section 376, various types of rape are punished differently. Sections 376 A,
376 B, 376 C, and 376 D are the distinct types of rape punished differently. SECTION 377: This
section dealt with unnatural sexual activities, and it was often used in cases of sexual abuse of
male minors. The Information Technology Act, 2000 prohibited the publishing and transmission
of pornographic material.

The Immoral Traffic (Prevention) Act, 1956, deals with the criminalization of prostitution and
human trafficking in the Indian subcontinent. As a result of the lack of specific legislation
addressing a range of various other forms of sexual exploitation of children such as Child Sexual
Assault (not amounting to rape), Sexual Harassment, and Child Pornography, as well as growing
concerns about the rising trend of sexual violence against children in India, new comprehensive
legislation known as the Protection of Children Against Sexual Offences (PCASO) was enacted.

POCSO Act, 2012; Salient Features

A gender-neutral law prevents children from sexual assault, harassment, and pornography by
having severe penalties and child-friendly ways to report, record evidence, and investigate
crimes while keeping the case fast and going via a special court. The law sets a cut-off at 18
years of age for a kid. It covers sexual abuse of different types, including penetrative and non-
penetrative assault, sexual harassment, and pornography.

It categorizes a sexual assault as "aggravated" when it is committed by a person in a position of

trust or authority, if the victim is mentally ill, or if the victim is under a certain age. Though it
was banned under different laws, the exact definition of the crime of pornography was never
made explicit. Sexual exploitation of children is now officially defined as any picture, video,
digital, or computer-generated image that looks like a real kid, as well as an image that has been
changed or altered to seem as if it were a real child. Additionally, it bans child sexual
exploitation and prescribes the same penalty for aiding in the crime as for perpetrating it.
The child-friendly methods of recording testimony include: conducting the interview in the
child's home, banning night-time detainment of any children at the police station, and
transcribing the child's testimony verbatim. The kid needs the assistance of an interpreter or other
expert. A woman doctor will do a medical checkup on a girl and in the presence of a guardian or
other family member whom the kid trusts. Frequent pauses for the child were required to avoid
harsh interrogation or character assassination during trial procedures.

The child's identity was protected to prevent the media from revealing the child's name without
the approval of the Special Court. The law also calls for obligatory reporting of offenses and
failing to disclose such an offense would lead to a penalty. To minimize the time it takes to go to
trial, the Act sets a 30-day limit for gathering evidence and requires trials to be finished within a
year, as much as feasible.

POCSO Act: Recent Developments

The law has been further updated to increase the severity of punishments for various crimes,
including the possibility of capital punishment for sexual assault and aggravated penetrative
sexual assault, to deter potential sexual predators from committing the heinous acts seen in
recent tragedies like Unnao, Kathua, and Muzaffarpur Shelter Home.

The old law's penalty for penetrative sexual assault was a minimum of seven years in prison; the
new Act increases that to 10 years. The amended section also has a sub-part that says if someone
below the age of 16 is the victim of a sexual assault, the minimum penalty is 20 years in jail,
which may be extended to life in prison and a fine. The Revised Act adds two additional
categories of severe penetrative sexual assault. Like when a child is attacked till death and when
a sexual assault happens during a natural catastrophe or similar condition of violence—penalties
for this offense vary from ten to twenty years in prison to the death penalty.

The aggravated sexual assault definition has also been expanded to include cases where the
attack was carried out during a natural disaster or where children are administered or helped to
receive hormones or chemical substances to reach sexual maturity prematurely. This amendment
also enhanced the penalties for the storage of pornographic material for business purposes. Also,
it included two additional grounds that are not subject to destruction, deletion, or reporting of
pornographic material concerning a child and the transmission, display, and distribution of such
material other than for reporting purposes.

The judicial system has become aware of the increase in crime and the sexual exploitation of
minors and has prioritized providing recommendations on security and rehabilitation. The NGO
Sakshi v. Union of India (AIR 2004 SC 3566) established that existing criminal laws were
inadequate in handling instances of child sex abuse in the first instance, through their PIL filed
before the Supreme Court. Sexual penetration of a female victim was prosecuted under Sections
375 and 376(2) of the IPC, whereas sexual penetration of a male victim was prosecuted under
Section 377 of the IPC. Non-penetrative sexual offenses committed against a female child were
dealt with under sections 354 and 509 of the IPC, but a similar rule did not exist for a male child
victim.

The Supreme Court issued guidelines on conducting proper child sex abuse trials, including
concealing the accused's face from the victim or witnesses, allowing victims to take breaks
during the trial, and limiting unnecessary victim harassment during cross-examination. These
guidelines are incorporated into the POCSO Act. In Shankar Kisanraokhade v State of
Maharashtra 5 SCC 546 (2013), the court noted that sexual abuse might occur in many forms,
including sexual molestation, assault, or exploitation child may be sexually abused by a person
known to them.

The Supreme Court required that the federal and state governments and voluntary organizations
safeguard minors from prostitution and provide them chances for rehabilitation and a better life
in Gaurav Jain v Union of India, AIR 1990 SC 292 (2004). The Supreme Court said in Vishal
Jeet v Union of India (AIR 1990 S.C. 1412(1990) that child sex abuse is a socio-economic
problem and ordered state governments to guarantee that law enforcement agencies take action
against this horrible crime. As a result of their age, the Supreme Court in Nipun Saxena & Anr v
Union of India WP (civil) 565/2012 emphasized the need for extra care and protection for child
sexual assault victims by keeping their identities and names hidden.

The Act's vulnerabilities:

The revised legislation has severe penalties, but it is still riddled with loopholes that need urgent
correction. Increased use of the death penalty may reduce the number of reported murder cases
and victims murdered. Generally, the offender is someone known to the victim, discouraging the
victim from filing a report. In addition, the risk of a victim being raped and murdered is much
greater. In cases where the accused is in authority, the amended Act does not protect the victim
and their family.

Despite the increased penalty for severe sexual assault, the Unnao Rape case shows that more
must be done. The revised legislation lacks a plan for compensating victims or ensuring an
adequate police investigation or an efficient method for decreasing the number of cases awaiting
trial. It ignores worries about young adults having consensual sex since the current legislation
considers 16-18-yearolds too immature to have sex, which families frequently abuse to cover up
elopement and inter-caste marriages.

The situation during Covid-19 Pandemic:

The particular obstacles faced by the COVID-19 epidemic spread to medical, social, and
financial difficulties. The most significant pain is happening in one specific manner, and children
are experiencing it. Despite children being a smaller proportion of the COVID-19 population, the
global pandemic has had an outsized impact on children's access to a secure and healthy learning
environment. In every corner of the globe, almost one billion children have been denied access to
schooling for at least three to four months, thanks to national lockdowns. This change, in turn,
allows sexual predators to harm youngsters via virtual venues.

As to CHILDLINE 1098, an exceptional service that deals with emergency requests for
assistance from women and children experiencing abuse and violence, the number of calls from
distressed children during India's shut down in April of 2020 rose by 50 percent. The Supreme
Court of India recognized the severity of the situation, taking cognizance that children in state
care programs faced significant risks.

The growing use of internet communication tools amongst children and teenagers in India has
caused a new danger to their safety. The latest study from the U.S. National Center for Missing
& Exploited Children (NCMEC) and the National Crime Records Bureau (NCRB) shows that
from September 2019 to January 2020, at least 25,000 child sexual abuse photos were posted to
Indian social media sites. After the lockdown was announced, child pornography searches spiked
drastically, as the India Child Protection Fund reported. A 95 percent increase in child sexual
abuse material and images was noted during the country's shutdown.

The genuine issues associated with these numbers are a cause for worry, particularly considering
the changing landscape of education, which has moved entirely online, and the fact that "having
continuous parental supervision is not a realistic choice in households with two working
parents." Additionally, in many instances, schools urge parents to avoid hovering around their
children in the class to reduce the likelihood of helicopter parenting. It may make youngsters
more susceptible to internet sexual abuse. To guarantee the Indian Constitution's Article 21 right
to dignity, protecting minors from sexual assault is very necessary. Spending more time online
may lead to grooming and exploitation, both online and offline. Children may be quickly forced
into participating in criminal or hazardous actions. For instance, minors may be manipulated into
making and sharing sexually explicit pictures of themselves, which others may exploit to harass
and abuse them.

Child sexual abuse is a societal calamity that has ramifications for the whole human race. It is a
covert crime that often goes undetected, either because it is committed by people who are
familiar to the victim, or because the victim is embarrassed to report the abuse because of social
shame, or for any other reason, and is left to suffer in silence and without help.

The passage of the POCSO Act has resulted in a significant rise in the number of instances of
child sexual abuse being reported in India. While it has attempted to stem the upward trend in
sexual crimes against children, it has failed due to severe loopholes in its effective
implementation. It requires dedicated and coordinated efforts from the implementing agencies
and a robust multidimensional approach to ensure a speedy trial to avoid the re-victimization of
those affected.

After the alarming increase in sexual crimes against children and the tragic incidents of Kathua
and Unnao gang rape, the POCSO Act was amended to provide more stringent punishments to
act as an effective deterrent. However, this is insufficient because it lacks any practical solution
to deal with the massive backlog of cases registered under the Act and fails to address many
more k issues.
The k issues include: Moral and sexual education should be made mandatory in all schools and
colleges to raise awareness and vigilance among youngsters about the increasing number of
sexual crimes and help them comprehend the different kinds of sexual violence. It is essential to
educate parents on excellent parenting practices since they are the ones who can establish the
safest environment favorable to their child's health and well-being.

Child Sexual Abuse (CSA) has only recently been publicly acknowledged as a problem in India.
A welcome development has been the enactment of a special law—Protection of Children
against Sexual Offences (POCSO) 2012—criminalising a range of acts including child rape,
harassment, and exploitation for pornography. The law mandates setting up of Special Courts to
facilitate speedy trials in CSA cases. The paper highlights the intended benefits and the
unintended consequences that might arise from the application of the law in the Indian context.
Undoubtedly, the passing of POCSO has been a major step forward in securing children’s rights
and furthering the cause of protecting children against sexual abuse in conjunction with a related
legislation to clamp down on child marriages called the Prohibition of Child Marriage Act 2006.
The letter and spirit of the law, which defines a child as anyone under 18 years of age, is to
protect children from sexual abuse. However, criminalising all sexual behaviour under 18 years
of age can be problematic. 

CSA in India

Growing concerns about female infanticide, child rapes and institutional abuse of children led to
the commissioning of the first large scale government sponsored research study to assess the
extent and nature of child abuse in India (Kacker et al. 2007). The study, based on a well-
designed methodology, covered 13 states (two states from each of the six geographic zones in the
country) including states with the highest through to the lowest crime ratesinci of offences
against children.

The sample was purposive and included 12,447 children, 2324 young adults and 2449
stakeholders representing five different evidence groups: children in the family, at the workplace,
in schools, on the streets and in institutions. The study reported widespread emotional, physical,
and sexual abuse prevalent in all the states surveyed. While every second child reported
emotional abuse, 69 % (n = 12,447) reported physical abuse, and 53 % (n = 12,447) reportedly
experienced some form of sexual abuse. Half of sexual abuses reported were committed by
“persons known to the child or in a position of trust and responsibility” (Kacker et al. 2007: vii).
Carson et al. (2013) survey of the current state of knowledge on CSA in India concluded that
empirical studies report a much higher incidence of CSA than previously acknowledged by
authorities or by families. Further, there is regional and rural–urban variation in the rates and
extent of CSA in the country.

Girls are more vulnerable to sexual abuse, although boys too reported a high percentage of
victimisation and are subject to greater social stigma. Finally, Carson et al. (2013) suggest that
although sexual exploitation and abuse is strongly correlated to poverty, it occurs in families
across the socioeconomic and religious spectrum. However, factors that facilitate CSA, such as
poverty, overcrowding, extended family living arrangements, abundance of street children, and
lack of recreational facilities in families (Carson et al. 2013) are by no means exclusive to India.
Admittedly, their impact might be exaggerated or intensified given the population density and
size in India.

Thus, a complex mix of individual, ecological and situational factors that are said to facilitate
CSA (Smallbone et al. 2014) might account for its prevalence in the Indian context. However,
the absence of empirical research precludes definitive conclusions.

Sexually abused children are severely let down by systemic failure of the criminal justice system
to redress their grievances and by social ostracism associated with such abuse (HRW 2013).
Only 3 % of CSA offences uncovered by Kacker et al. (2007) study were reported to the police
(HRW 2013). It is unsurprising that CSA is severely underreported given the shame and
associated socio-cultural stigma, especially if the abuse is in the context of the family
(Choudhury 2006). This phenomenon is not unique to India but common to collectivist cultures
in other Asian countries where an individual’s experience is ignored so as to protect the family
from shame associated with sexual abuse (Back et al. 2003; Stoltenborgh et al. 2011).

Legal response to CSA

Until 2012, the only sexual offences against children recognised 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 recognised 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.

Age of consent

All sexual acts described under POCSO are, without exception, considered to be criminal
offences if they involve a ‘victim’ under the age of 18 years. This holds true regardless of the
issue of consent or the age of the ‘perpetrator’. In cases of consensual sex between two minors
the concepts of victim and perpetrator become interchangeable as the law inexorably criminalises
sexual behaviour for under-18 year olds. The Act does not confer any sexual autonomy to
children who may then be liable for committing sexual acts under the law. POCSO invariably
criminalises a juvenile ‘perpetrator’ of CSA to be “dealt with under the provisions of the Juvenile
Justice (Care and Protection of Children) Act 2000” [section 34(i)].

However, in 2013 a Special Court judge rejected the notion that the human body of a person
under 18 years is the property of the State, whereby it can restrict individual autonomy on sexual
behaviour. While ruling in a case where a 15 year old willingly eloped with and married a
22 year old man, the judge held that criminalising such behaviour would not serve the purpose of
the enactment (TOI 2013). There is thus a tension between the letter of the law and its spirit.
Determining whether an allegation involving underage sex was forced or consensual would
depend greatly on individual interpretation of the circumstances. The law allows for abuse in
either direction: being too restrictive of children’s autonomy or too permissive of CSA.

Finally, lack of proper support and professional help to the victim and their family can
sometimes cause greater psychological harm and trauma (Oz and Balshan 2007). Child Welfare
Committees are to provide this support in India but are not really functioning satisfactorily
(Maharashtra State Consultation 2014). It therefore creates difficulties for ‘victims’ as well as
‘perpetrators’ under 18 years, the latter are criminalised but not provided with professional help
they might need.

Obligatory reporting

Mandatory reporting of CSA by any citizen, but especially those working with children and
young people in the education, social, religious and heath sectors is enshrined in POCSO
(section 19). Failure to do so carries legal sanctions of imprisonment up to 6 months and/or fines
intended to encourage compliance with the law. Evidence in other countries (USA, Australia)
shows that mandatory reporting of child sexual abuse has had mixed success (Kim et al. 2012;
Ainsworth 2002). The Report for the Royal Commission into Institutional Responses to Child
Sexual Abuse (Mathews 2014) reported that since the aim of mandatory provisions is to
encourage reporting not police it, failures to report are rarely prosecuted in some jurisdictions. As
a result, in New South Wales (Australia) the law has been amended to remove sanctions for
failure to report CSA (Mathews 2014). However, mandatory reporting obligation under POCSO
raises three problems specific to the Indian context:

Criminalising sex under 18 years virtually pushes it beyond the purview of health professionals
and school counsellors who might be reluctant to impart safe sex advice or treat effects of unsafe
or reckless sexual practices without breaching patient confidentiality and/or getting involved
with reporting it to the authorities.

The law raises many issues for institutions, charities and organisations working with poor and
backward communities and children and who are deeply committed to building relationships
based on trust with young people. Breach of trust would seriously jeopardise their efforts to
communicate with and work with young people if they are legally bound to report any
knowledge of consensual, albeit underage sex. Lack of training for professionals (doctors,
teachers, psychologists, social workers, counsellors etc.) working with children on how to deal
with knowledge of sexual activity and to respond appropriately can be an additional problem
(Goldman 2010).

Mandatory reporting raises the issue of who is or should be responsible for enforcing this legal
obligation. The police are overworked and scarcely possess the capacity to do so. Prescribing a
legal obligation with penal and financial sanctions, without thinking through the mechanism for
its enforcement, and the resulting lack of accountability, might mean that cases of failure to
report fall through the cracks. There is a danger that the law may be used only retrospectively to
punish transgressions, rather than ensure prospective reporting of suspected CSA by competent
authorities in appropriate cases.

A possible solution to the problem would be for a competent authority to distinguish between
acts of crime and consensual sex at an early stage. Thus, the incident ought to be reported, but
decisions regarding registering an offence and investigating may be discretionary.

Age determination

Determining the age of the victim and the perpetrator is fraught with problems. The Special
Court is authorised to determine age [section 34(2)] but there are no clear guidelines as to how
they are to do so. It is generally acknowledged that forensic means of establishing age of a living
person can be inexact and quite complicated (Schmeling et al. 2003).

The Supreme Court of India ruled in the case of Babloo Pasi vs State Of Jharkhand and Anr that
age determination is very difficult in the absence of birth certificates or other official
documentation and while the opinion of a specially constituted Medical Board may be useful in
determining age, it cannot be the only or conclusive factor to do so (Supreme Court of
India 2008).

The Supreme Court further states that a hyper-technical approach should not be adopted and the
Court should lean towards giving the benefit of the doubt to the juvenile while ensuring that the
law is not being misused. Under POCSO the ages of both, victim and perpetrator, are pivotal in
determining whether and how the Act would apply and influencing the outcome at the charging
and trial stages. In developing countries like India where a large proportion of births are just not
registered and therefore substantial sections of the population do not have documents like birth
certificates or school leaving certificates to provide proof of age, this could be problematic.

Interaction between the three issues and its impact on child marriages

Laws do not operate in isolation and often real life situations can confound even the noblest of
intentions enshrined in law. In this case, the legal age of consent and mandatory reporting
obligations of POCSO combined with the difficulty in determining age could cause more
problems than anticipated for the criminal justice system. POCSO in conjunction with
Prohibition of Child Marriage Act 2006 is intended to protect girls from being forced into early
marriages.

While this is a worthwhile goal to pursue, cultural and social norms supporting early marriages
in India combined with the individual’s right to sexual autonomy might present impediments to
the fulfilment of that aim. A recent report on the census data indicates that in India one in six
women were married before they were 18 years of age, of which 17.5 % (6.5 million) women
had been married within 4 years prior to when the census was conducted (Shaikh 2015).

Thus, there are possibly 6.5 million (and growing) potential law suits under POCSO. It could
lead to enormous waste of time and resources of the criminal justice system in cases of consent
to marriage by a girl between the ages of 15–18 years. Ignoring the role of consent in underage
sex combined with the inexact science of age determination in a climate of mandatory reporting
can potentially lead to abuse of the legal system or miscarriages of justice.

A possible solution to this problem may be the mandatory linking of UIDFootnote2 (Unique

Identification) with victim and offender data in cases involving underage parties at the time of
reporting to help determine the age of the victim and perpetrator. However, this could potentially
raise a number of ethical issues and might be at cross purposes with the original intention of the
UID project in India.

POCSO 2012 has undoubtedly made a significant contribution to tackling the problem of CSA in
India. It has identified and criminalised a range of unacceptable sexual behaviours that pose a
threat to children. The number of reported cases is increasing rapidly, indicating that the law has
made a substantial contribution in educating the public, sensitizing the criminal justice system,
and making the reporting of CSA not just acceptable, but also mandatory. The law has some
unique features and is very comprehensive. However three main issues identified in the letter and
spirit of the law could create potential problems for implementation in the Indian context.

The issues are: inflexibility regarding age of consent for sex under 18 years of age; mandatory
reporting obligations; and the inexact nature of age determination. Further, the Indian
government’s desire to prohibit child marriages and protect vulnerable children expressed in the
Prohibition of Child Marriages Act 2006, combined with POCSO 2012 should prove to be a
deterrent to underage marriages. However, given the problems identified above and in a climate
where social and cultural norms still tolerate, if not actively encourage child marriages, the
potential for waste and loss of resources cannot be denied.

CHAPTER - 2