Abstract
This paper examines how the relationship between child privacy and the Protection of Children from Sexual Offence (POCSO) Act of 2012 is evolving in the context of rapidly changing technology and the digital exposure among the children. It also explores how Indian law has shifted from a family-centric framework to a child-centric approach, acknowledging privacy as a fundamental right under Article 21 of the Indian Constitution, as affirmed in the case of K.S. Puttaswamy v. Union of India.
The following study also highlights how legal provisions under the POCSO Act safeguard the child’s privacy during the digital proceedings, making it a child-friendly procedure. It also examines the tension between statutory framework and children’s individual autonomy in the context of adolescents, from the case of Re: Right to Privacy of Adolescents. It concludes by highlighting the need for a balanced approach that protects children while respecting their evolving socio-economic realities.
Introduction To Child Privacy And Technology
With the evolution of technology along with rapid changes, mainly the digital changes, which affect children in both positive and negative ways. Generation Z was not much exposed to technology due to unavailability of resources; meanwhile, Generation Alpha, born from 2010 onwards, has major exposure to the technology. As children are not capable of understanding the seriousness of their act or such exposure, even law considers them Doli Incapax; one who is incapable of understanding the gravity of the crime becomes the victim of infringement of their protection and privacy.
POCSO Act And Legal Framework
The Protection of Children from Sexual Offences (POCSO) Act, 2012, establishes a strong and rigorous legal framework which protects minors from any such crime of sexual offence. With the alignment of the right to life and personal liberty enshrined under Article 21 of the Indian constitution, POCSO prioritises maintaining the child’s privacy and protection entirely throughout the judicial procedure.
Shift From Family-Centric To Child-Centric Approach
In the traditional children’s rights it was more based on a parental-control model, which means it gives more importance to the ‘honour’ of the family rather than giving importance to the child’s protection. In the contemporary legal framework, the law recognises that a child’s rights are individual-centric rights, where the state plays the role of parens patriae, which means they are the primary protectors of a child’s interests regardless of parental involvement and their negligence.
Best Interests Of The Child
The POCSO Act operates on the bodywork of the ‘best interests of the child’, which prioritises emotional stability along with the fulfilment of basic necessities, which secures an environment of protection for the child and works as a primary objective throughout the judicial process.
| Aspect | Description |
|---|---|
| Emotional Stability | Ensures the child is mentally and emotionally supported |
| Basic Necessities | Focuses on essential needs such as safety and well-being |
| Judicial Protection | Maintains a child-friendly legal process |
The best interest of a child is regarded as a primary consideration of the constitution. [1]
The Evolution Of Child’s Privacy In India
Before 2017, right to privacy is considered as a mere common right but in the case of K.S. Puttaswamy v. UOI Supreme court held that that right to privacy is a part of fundamental right.
In the context of a children, they have historically no right to privacy as they have lack of autonomy. The major changes were created when the world start recognising to give a child special protection.
- The United Nation Convention on the Rights of the Child (1989) mentioned under article 16 that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.”[2]
- Which was further ratified by India in 1992.
After which it was introduced in the Juvenile Justice act of 2000 under section 21 which prohibit the media to divulge any fact related to child’s true identity which includes his name, photos, address or any such material which is distinguished details of the child were involved in a legal proceeding.
While the act of 2000 was the foundation for the child’s privacy it was replaced by making it stricter in the Juvenile Justice Act of 2015 under section 74 with increased penalties and strict record keeping of the child’s identity. It also applies to police officers and any public servants.
Comparison: Juvenile Justice Act And POCSO Act
If we talk in the context of POCSO act the section 23 basically works as same as section 74 of Juvenile Justice act but the only difference between them is that the section 74 of JJ act protects to both the child in the conflict with the law and the child in a need of care and protection and the section 23 of POCSO act works only for the victims of sexual offence.
| Aspect | Juvenile Justice Act (Section 74) | POCSO Act (Section 23) |
|---|---|---|
| Scope | Protects children in conflict with law and children in need of care and protection | Applies only to victims of sexual offence |
| Objective | Protection of identity | Protection of identity in sexual offence cases |
Supreme court held in the case of Nipun Saxena vs Union of India[3] that the disclosure of identity of the child’s victims of sexual offence can only be done with the permission of Special Court which are established under POCSO act if such disclosure is in the interest of the child and even the parents of the child have no rights to disclose such information related to the child in the media if the court deems that such kind of information is harmful for the child.
Child Privacy In Legal Proceedings
The POCSO act make ensure that how it can maintain the victim’s privacy while making a suitable environment which guarantees both mental and physical health.
In-Camera Proceedings
Under section 37 of pocso act it ensure that any legal proceedings under the POCSO act must be conducted in-camera. In-camera is a Latin word which means “in the room”, majorly used in a highly sensitive case.
- It only includes the essential parties in the case which includes judge, lawyer and the support person of the child
- Restricts any other person not related to the case
- May include video conferencing, use of screen, one-way mirror, curtains or any live link access
In-Camera proceeding helps in preventing any testimonies given by the victim throughout the legal events which can cause any kind of social stigma, public shame and gaze later helps the child to return to a normal life.
Documents of such legal proceedings are kept off the record maintain the privacy of the victim.
The case of Sakshi v. Union of India[4] was the precedent for the In-camera proceedings as it was even before the POCSO act was enacted where Supreme Court held that in the case of sexual offences the trial must be conducted in a screen or a partition, so that the victim does not have to see the accused, while maintain the privacy and the dignity of the child.
Child-Friendly Procedures Under Section 24
Section 24 of POCSO act mention the child friendly procedure of recording their statement to maintain their privacy and to make whole less traumatic.
- The police officer must ensure that the they are not in uniforms
- The child must be in a place of his choice or the place of his residence
- Any child can’t be detained in the police station at night time for any reason
- The police officer must ensure that the identity of the child is protected from the media unless there is the order from the special court
- The child must never come into the contact of the accused at any time of the proceedings
From this particular section we can refer that how this act work for the child’s mental health as well as his privacy.
Evidence While Maintaining Privacy
Collecting an evidence or the “Burden of proof” rests entirely on the prosecution under the cases involving the child and it must be beyond any reasonable doubt as the court operates on the principal of “innocent until proven”. In the case of Kali ram vs state of Himachal Pradesh [5] the supreme court state that it is better that ten guilty persons escape than that one innocent suffers.
Investigative Needs and Forensic Data
The investigative needs for collecting the forensic data for the evidence which includes DNA, Biological samples along with the physical injuries. For the victims such kind of medical examination feels like a secondary invasion to their privacy.
Section 27 Pocso Act Safeguards
Section 27 of pocso act ensure that such forensic investigation must not work as clinical re-enactment. It states that the medical examination of the child victim must be done with the accordance of section 164A of Cr.P.C 284 of BNSS (medical examination of rape victims). It also mandates that such medical procedure must include the following essentials
- Presence of child’s parents or any person the child can trust. If there is an absence of such trusted person then the head of the medical institution must nominate any women for the examination.
- If the victim is a girl, then the examination will be held by the female doctor.
- The whole medical examination should not be done in any public or crowded space, the place must be private and secure with the limited number of people involved in it. It ensures that the such crucial information about the child’s identity is covered from the media and public.
The Re-Right To Privacy Of Adolescents
Can a law which is designed to protect the future of minors end up being costing them with their future? This was the central question for the landmark judgement of Re: Right to privacy of adolescents[6]. From the past the POCSO act works as a rigid age-based threshold which means one-rule-fits all. But after the intersection of right to privacy with the POCSO act it focuses more toward the ‘human’ rather than the ‘crime’. By including the personal wish of the victim in this case, the court ensures that privacy is the shield of dignity.
Case Facts and Background
In the case of right to privacy of adolescents it involves a 14-year minor girl from a rural area of West Bengal where she left her home to be with 21-year-old man, later they got married and had a child in 2017 when girl was around 17 years old. The man was convicted with the charges of rape, kidnapping, sexual assault, aggravated penetration along with child marriage where he got 20 years of life imprisonment by the POCSO special court.
High Court Decision
High court of Calcutta reversed the conviction given from the lower court by mentioning “humane view of the matter to do complete justice” while making a controversial comment on female adolescents that they have to control their sexual urges which caused widespread criticism, making Supreme court to take this matter take up the matter Suo moto.
Supreme Court Intervention
In the initial decision by the Supreme court, it restored the man’s conviction and rejected the concept of non-exploitative sexual act used by the high court for the case. The court also directed the state to appoint a committee consisting of social scientist, child welfare officer and clinical psychologist, where they will make report on whether the victim wants to live her life with the accused or to take the benefits given by the state government.
Committee Report and Findings
The committee reports that the long legal battle led to financial and socio-economic disruption to the victim’s family showing “collective failure” of the system.
Final Verdict
Endmost court in the final verdict delivered that the “true justice does not lie in the conviction of the accused” and even if they send the accused to jail it’s the victim who will also suffer.
Legal Analysis and Implications
This case shows how the “one-size-fits-for-all” law can collide with the individual rights to privacy and their personal autonomy. Forcing a prison sentence will leads to the intrude in the privacy of the victim and her family and the domestic decision underline the fact that true justice must respect the socio-economic decision of the victim when the system has failed them.
Conclusion
In conclusion, the rapid digital changes need a strong legal framework to give protection and autonomy to the minors. The Pocso act 2012, plays a significant role as parens patriae, by giving importance to child’s emotional stability and work for their best interest.
However, as demonstrated by the Re: Right to privacy of adolescent’s case, the blanket rule which fits for all must be balanced with the individua’s personal wish and their background.
While the POCSO act works as a rigid framework it changes with needs and demand of the society to effectively maintain the privacy and dignity of the victim. End Notes:
- R.D. Upadhyay v. State of A.P. (2007) 15 SCC 337
- Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
- Nipun Saxena v Union of India (2019) 2 SCC 703
- Sakshi v Union of India (2004) 5 SCC 518
- Kali Ram v State of Himachal Pradesh (1973) 2 SCC 808
- In re: Right to Privacy of Adolescents (2025) 7 SCR 216
Written By: Shailja Singh
