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Child Sexual Abuse In India

Protection Of Child Rights In India

India is home to 430 million children. Children are considered an essential pillar in the nation's development. The legislation of India and its judiciary has worked hard since the independence to provide fundamental rights to children from the prenatal stage until they are at the legal age of maturity. According to the psychologist, Jean Piaget, there are four stages of child development where an individual not only goes through physical or biological changes but also there is the modification in psychological, mental, and emotional health and diversification is visible in one's morals, hypotheses, and communication skills which is symbolic.

It is perceived that protecting these young minds is essential as this provides a healthier life for a human being and the development of the nation as a whole. It is vital that a child shall be protected from any violence, emotional or physical, exploitative or vulnerable situations where fundamental human rights are imperiled. Childhood is the most sensitive stage of a human being's life. A nation's children are considered as a supremely important asset because they lead the future and it is they who on which nation's well-being depends. The child is understood to have individual rights and duties in the nation.

Children are gullible, vulnerable, and easy to exploit at a tender age from the stakes of evils in society. A child is prone to mental, physical, sociological, psychological, and emotional abuse from within and outside of their family. It is not always that a stranger would cause harm, but sometimes the very own parents of a child are the reason for wrongdoing. It is not still that one would do evil but encourage a child into doing an offense.

Both international parties and national commissions that every individual shall be protected from any contamination feel it. Children are universally recognized as the most critical asset of any nation. The future of the nation depends directly on how they are brought up and cared for. It is the reason why the Universal Declaration of Human Rights adopted very back in 1948 had proclaimed that childhood was entitled to special care and assistance.

The Indian Judiciary plays an active role in the enactment of existing laws and keeps on developing more for the growth of child rights in the subcontinent. It encourages both state and center government to provide essential facilities to children of every age group, and in Goodricke Group Ltd v Center of West Bengal, the superior court of the nation ruled that it is the responsibility of the federal government to arrange all the necessary resources required to provide free education.

Background
The fundamental rights enshrined in the constitution have several rights dedicated to boosting child rights and their protection. These fundamental rights cover spheres like access to justice, education, living a dignified life, and security from any manhandling of children. The Indian legislation has incorporated international conventions like the Convention of the Rights of the Child into the constitution and expects that states develop laws keeping the essence of it in them as written in the directive principles of the state policy of Part IV.

There are commissions like the National Commission for Protection of Child Rights (NCPCR), which have state commissions under them as well which provide a portal to stop the squandering the child rights. There is an immense development of rules and laws for Juvenile Justice, and it is understood that if a juvenile is convicted, he/she shall receive the correct program for leading a satisfactory life.

Child rights are mostly recognized by the view of a child's autonomy. At the international level, conventions like a declaration of child rights, 1959 laid down the framework for child rights across the globe. This also leads to the evolvement of various global offices like the United Nations Children's Fund (UNICEF) dedicated to working for children's rights around the world. It is noticed that a family and schooling system plays a vital role in a child's early development. In addition to this, the community also plays an essential role in the event of a child.

It is expected that a family shall provide a nurturing environment to the child because the family is considered as the first school of the child. Therefore, whatever is taught to a child at an early stage stays with him until he's an adolescent. Schools are too expected to maintain a safe environment for the children where they don't become subject to any abuse.

These three factors are envisioned to protect the interest of a child through various methods like disseminating the information, awareness, training, and monitoring the process. It is beheld that education plays an important in the growth of children and through providing them with such resources one gets entitled to the rights they have. It is found as a significant problem in the Indian subcontinent that there is a lack of awareness of rights among the parents and children and hence they are deprived of justice.

Child Sexual Abuse In India

Millions of youngsters square measure victims of violence and exploitation. They're physically and showing emotion vulnerable and that they may be scarred forever by mental or emotional abuse. Child sexual abuse is an evil living in our prevalent society yet something not talked about often. It is the root cause of several health problems and an array of other consequences.

Identified incidents of child sexual abuse are reducing, although there is no clear indication of an origin. It has been reported that one in 10 children will be sexually abused before their 18th birthday. Even with reducing rates of reported sexual abuse, the public is not fully aware of the impact of the problem. Child sexual abuse is an age-old problem in India, and over the years cases of heinous acts have been reported, and there is a constant fight to eradicate such evil in society.

One of the most significant problems is that our community has been considering adult rape of a more considerable proportion whereas child sexual abuse is of the same significance. The only difference here lies is that most of the time, children aren't aware that they were sexually abused or they are too scared to inform their parents. Some are scared of privacy. To curb the problem of child sexual abuse in India, the government had compiled POCSO in 2012.

Before this, the country didn't have any statutory substance on this subject, but now this act is administered by the ministry of development of women and children and works in eradicating the sexual abuse of children, educating children about sexual abuse, providing children who are a victim of violence a safe space and punitive punishment to convicts.

The govt. has taken its initiative to deal with the matter by enacting the Protection of youngsters from Sexual Offenses Act in 2012 (POCSO) however correct implementation of such laws and policies is needed thus on the curb this social menace. Studies recommend that over seven,200 youngsters, together with infants, square measure raped each year; specialists believe that a lot of cases go unreported.

Forms Of Sexual Abuse

Physical

it is noticed that in most cases there is clear physical contact between the offender and the victim. the contact includes penetrative sex, fondling of the victim's genitals, or making the child do it. sexual intent in form of touching and kissing is considered a physical form.

Non-Physical

it is not necessary that there shall be any physical contact for the abuse to occur. actions like sowing pornographic pictures or videos to a child or using a child in such material accounts for the abuse. any other gestures like being lewd, verbal abuse, playing sexualized games. over time, things like, stalking and chatting with sexual content are also on the list. In case there is an offence committed by the child, the POSCO act will still be applicable but the procedure would be of Juvenile Justice (Care and Protection of Children) Act, 2015.

Incest

The term incest means a forbidden sexual relationship between close relatives in a family, e.g. between brother and sister or parent and child.

As per Section 5 (n) of the POCSO Act, whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared a household with the child, commits penetrative sexual assault on such child, is punishable for aggravated penetrative sexual assault with rigorous imprisonment, which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to a fine under the Section 6.

Commercial Sexual Exploitation Of Children

This can be defined as where an adult sexually abuses a child in return for remuneration. Here the victim is treated as a commercial or sexual object. It can be further divided into child prostitution, child sex tourism, and child trafficking.

Child Sexual Tourism

This is a kind where the offender travels from one place to another for initiating sexual relations with a child. This can be domestic or international as well. It involves resources like the use of accommodation and transportation and any tourism-related services. Child sex tourism contains the exchange of basic amenities like cash, food, clothes, and sometimes a remuneration in cash. These tourists can be married or single, male or female, foreign or local. Mostly they contain men of wealthy families.

Tourism can be further divided into:

  • Situational child sex tourism; contains the mode of experimentation or through the anonymity of the leverage a tourist has.
  • Preferential Child Sex Tourism: where the offended has an active sexual preference most adolescent.
  • Pedophile: this refers to the exclusive manifestation towards children under the age of 13.
According to section 67 (b) of IT Act, 2000 and Sections 13 and 14 of POCSO, 2012 child sexual abuse imagery is any visual depiction of sexually explicit conduct involving a minor.

Online Sexual Abuse

This happens over the Internet mostly. It can be through social networking sites or playing online games or through mobile phones. Young people are prone to cyberbullying, grooming, sexual exploitation, and emotional abuse. Someone they know or strangers can do this. It is felt that often children find no escape from this as they are afraid of the fact that offenders can reach them any time of the day and could access their personal space.

Abuse In India

In 2007, The Ministry of Women and Child Development released the results of a nation-wide survey on Child Abuse, in which 12,500 children had participated the across13 States. More than half, 53% said that they had been subjected to one or more forms of sexual abuse. If that can be extrapolated it would mean that one in every two children have been victims of sexual abuse. Over 20 percent of those interviewed said they were subjected to severe forms of sexual abuse.

Of those who said they were sexually abused, 57 percent were boys. According to Crime in India, 2014 of National Crime Records Bureau (NCRB), crimes committed against children were observed as 20.1 per one lakh population of children (up to 18 years of age). A total of 10,854 cases of child rape were reported in the country during 2015 as compared to 13,766 in 2014 accounting for a decrease of 26.8 percent during the year 2015.

However, the number of cases of child sexual abuse under the POCSO Act has increased. The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making a false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If the false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year. For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into a shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

Causes

There are several factors:

  • Taboo to discuss sex and sexuality:
    this happens be to be the biggest reason why children are a victim of sexual abuse. There is reluctance to have the talk about sex and sexuality, particularly with children. As there is an absence over the knowledge and teaching and a healthy environment, both children and adults are in dark of the risks that follows through.
  • Tolerance to gender based violence:
    in India since the beginning of time the society has an ignorance and a level of accepting and tolerance towards gender based violence. We live on the saying; children and women are prone to such abuse if they cross their morality limits.
  • Believing adults over children:
    often the cases of violence and abuse are to put to rest by the families because they aren't ready to accept that an adult of the family could do such thing. A lot of times it is thought that the kid is lying or doesn't hold the sense about what he is reporting.

Statistics Of Sexual Abuse In India

A questionnaire was administered to 12,447 children belonging to the five different categories of children in family environment, children in schools, children in institutions, children at work and street children in 13 different states. The major findings of this survey were:
  • Out of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse. Among them 52.94% were boys and 47.06% girls.
  • The age wise distribution of children reporting sexual abuse in one or more forms showed that though the abuse started at the age of 5 years, it gained momentum 10 years onward, peaking at 12 to 15 years and then starting to decline. This means that children in the teenage years are most vulnerable.
  • The significant finding was that contrary to the general perception, the overall percentage of boys was much higher than that of girls.
  • In fact 9 out of 13 States reported higher percentage of sexual abuse among boys as compared to girls, with states like Delhi reporting a figure of 65.64%.
  • Out of the total child respondents, 20.90% were subjected to severe forms of sexual abuse. Out of these 57.30% were boys and 42.70% were girls.
  • 76% children were subjected to other forms of sexual abuse. Out of these 53.07% were boys and 46.93% were girls.
  • Assam reported the highest incidence of sexual abuse among both boys and girls. 62.55% boys and 51.19% girls from Assam reported facing one or more forms of sexual abuse, which was highest amongst all the 13 sample states. This was followed by Delhi with 54.66% boys and 22.54% girls and Bihar with 35.89% boys and 30.40% girls reporting high incidence of sexual abuse. The Goa figures of 2.55% boys and 2.17% girls do not seem to be in line with the general perception.
  • Across the country, every second child was being subjected to other forms of sexual abuse and every fifth child was facing severe forms of sexual abuse.
  • Children on streets, children at work and children in institutional care reported the highest incidents of sexual abuse.
  • 77% children did not report the matter to anyone.
  • 50% abuses are persons known to the child or in a position of trust and responsibility.

A study on Child Sexual Abuse carried out by Save the Children and Tulir in 2006 looked at the prevalence of child sexual abuse among school going children in Chennai. The major findings of this study include:
  1. Out of the total of 2211 respondents, 42% children faced at least one form of sexual abuse or the other.
  2. Among respondents, 48% of boys and 39% of the girls faced sexual abuse.
  3. The prevalence of sexual abuse in upper and middle class was found to be proportionately higher than in lower or in lower middle class.
  4. Sexual abuse was found to be prevalent in both joint and nuclear families.
  5. Majority of the abusers were people known to the child and strangers were a minority.
  6. Sexual harassment in public places and exhibitionism was higher by strangers.
  7. Sexual abuse of children was very often a pre-planned insidious abuse of a relationship by an abuser over the child.
  8. In 1998 the Indian NGO Recovery and Healing from Incest (RAHI) conducted India's first study of child sexual abuse. It surveyed 600 English-speaking middle and upper-class women, 76 percent of who said they had been abused in childhood or adolescence, 40 percent by at least one family member.
  9. Contrary to common perceptions of child sexual abuse, the statistics reveal that a higher percentage of boys are subjected to sexual abuse and that most children are abused by their parents, relatives, people they know or people, who are in a position of trust and authority over them; that is the cases of incest are high. Incest leads to a greater mental trauma to the child.

Link Between Juvenile Justice Act, 2015 And Pocso, 2012:

  1. Child victims under the POCSO Act can also be children in need of care and protection.

    Section 30 (xiii) of the Juvenile Justice Act, 2015 requires the CWCs to take action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by SJPU or local police under the POCSO Act, 2012.

    (ii) Under Section 19 (6) of the POCSO Act, the local police or the SJPU should report the commission of a sexual offence against a child to the CWC within 24 hours of receiving information and should also indicate if the child is in need of care and protection; and steps taken by them in this regard. Rule 4 (3) of the POCSO Rules, 2012 specifies 3 situations in which a child must be produced before a CWC viz. a) there is a reasonable apprehension that the offence has been committed or attempted or is likely to be committed by a person living in the same or shared household; b) child is without parental support; c) the child is found to be without any home and parental support.

    Upon production, as per Rule 4 (4), POCSO Rules, the CWC should determine within 3 days whether the child needs to be taken out of the custody of the family or shared household and placed in a Children's Home or Shelter Home. CWC can take the assistance of a social worker to make this determination.

    Rule 4 (5), POCSO Rules specifies 7 factors that should be considered by the CWC along with preferences and the best interests of the child while deciding whether or not the child should be removed from the custody of the family or shared household. CWC should ensure that the child is not inconvenienced or exposed to injury during this inquiry.
  2. Support Person to Child Victims to be provided by the Child Welfare Committee (CWC).

    Based on the report CWC receives from the local police or SJPU or its assessment, when a child victim is produced before it, u/Rule 4 (7), POCSO Rule, the CWC can provide a Support Person to assist the child and family during the investigation and trial of the case.

    The SJPU or local police should inform the Special Court in writing, within 24 hours of the assignment of Support Person, provided by the CWC. {Section 19 (6)}

    Under Rule 4 (8), the Support Person is required to maintain confidentiality and keep the child and the parent/guardian or other person whom the child trusts informed about the proceedings of the case, including available assistance, judicial procedures and potential outcomes and such other support necessary for the child.

    The CWC can terminate the services of Support Person based on such a request by the child or his parent/guardian etc. whom the child trusts and no reasons need to be provided for seeking such termination. {Rule 4 (10)}
  3. JJBs should adhere to the child-friendly procedures prescribed under the POCSO Act, 2012
    Under the Section 34 (1), POCSO Act states that the JJ Act would apply if a child commits any offence under the POCSO Act. Proceedings of the JJBs should be held in-camera, the child victim should not be exposed to the child alleged to be in conflict with law during the inquiry and procedures laid down in POCSO Act for child victim should be followed strictly for ensuring protection of the child victim.
  4. Role of JJ functionaries under the POCSO Act.
    SJPU or local police on receiving information relating to an offence that has been or likely to be committed, should take following steps:
    • Record the complaint; {Section 19 (2) (a)}
    • Assess whether the child is in need of care and protection; {Section 19 (5)}
    • Facilitate Emergency Medical Care; {Rule 5 & Section 19 (5)}
    • Facilitate Medical Examination; {Rule 4 (2) (c) & Section 19 (5)}
    • Facilitate Recording of Statement by Magistrate (Section 25)
    • Report to the Special Court and Child Welfare Committee; {Section 19 (6)}:
      • Provide information to the informant and victim.
      • District Child Protection Unit (DCPU) shall maintain a register containing contact details of interpreters, translators and special educators in their district under Rule 3 (1), POCSO Rules and should share the same with SJPU, local police, magistrate and Special Court to enable them to make available such services as and when required.
  5. Age determination
    Section 34 (2), POCSO Act requires the Special Court to determine whether a person is a child or not, if the question arises in the course of the proceedings. The Special Court should satisfy itself about the age of the person and record its reasons in writing. Section 94 of JJ Act, 2015 prescribes the process of age determination.
  6. Legal representation
    Under the Section 40, POCSO Act 2012 recognizes the right of the child victim to receive the assistance of free legal counsel during trial.

Features Of Pocso, 2012

POCSO is in line with Article 15(3) of the Constitution of India, which permits the State to make special provisions for children. POCSO is the acronym for 'Protection of Children against Sexual Offences Act' of 2012. With its enactment, India now has one of the most comprehensive law that not only allows justice for children who are victims of sexual offences but also takes into account the best interests and well being of the child.

It is a landmark legislation in the area of child protection. In fact, before 2012, there were no specific laws in India that addressed sexual crimes against children. Sexual offences against children were booked under the Indian Penal Code (IPC). Further, many forms of sexual abuse, like showing pornography to children could not be prosecuted; unless there was penetrative sexual assault. There were no provisions that could prosecute sexual offences against boys.

Journeying through the judicial system was a daunting proposition for victims and families. Intense questioning of the child victim by the defense counsel in courts and the possibility of media coverage around the case meant that there was a grave risk of the child revisiting the trauma of the incident. Victims and families experienced general fatigue with the complexity and delays of the judicial system.

Further, merely securing justice from the courts did not ensure that the victim was able to move on from the incident. Other rehabilitative and compensatory measures were lacking. The justice system itself was insensitive to the victims. Hard-line, judgmental questioning of the victim and constant demands on them to revisit and recall the crime during investigation, and trial would re-traumatize the victim child.

The inordinate delays in justice delivery would disrupt the life of the child and their family. The burden of proof was solely on the victim and not on the offender. Thus numbers of cases reported were very few compared to the scale at which the offences took place. Many of the victims in reported cases would turn hostile during the investigation and trial. Further, if the victim decided to speak out, they were left vulnerable to social stigma as there were no institutional safeguards.

Following are the striking features:
  1. Burden of Proof on the Accused
    What makes POCSO Act special is that it asks us to trust our children. Rather, it places the onus squarely on the accused to prove that he/ she is innocent. Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved. The law ensures that the pressure is not on the child to prove that the crime took place. The Court presumes “culpable mental state” (intention, motive, etc.) of the accused in the Section 30 (1).
  2. POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years.
  3. POCSO Act ensures punishment for all perpetrators irrespective of age and gender.

Calibration of Offences
POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse.

Severer Punishment when Protectors are Perpetrators
POCSO Act provides for more severe punishment, when the sexual offence is committed by a person in a position of trust or authority such as police officer or a member of security forces or public servant etc. mentioned in Sections 5 and 9.

Introduction of Child Friendly Measures
POCSO Act calls for people, systems and procedures to be sensitive and respond to the needs of children. For instance, it clearly mentions that the child need not be taken to the police station to report a case of sexual offence. Rather it directs the police (to be not in uniform and as far as practicable a woman officer not below the rank of Sub inspector) to reach out to the child, based on the child's preference and convenience (Section 24).

Support to the Child and Family in the form of Support Person
POCSO Act takes into account that handling a sexual offence is not easy for the child and family. So it makes provisions for experienced and professional individuals to be associated with the pre-trial and trial stage to assist the child cited in the Sections 39 and 40. Under Rule 4 (7) of POCSO Rules, 2012, Child Welfare Committee is to appoint Support Person to render assistance to the child through the process of investigation and trial.

Accountability of every citizen towards Child Protection
POCSO Act makes it mandatory for every citizen to report cases of sexual offences against children to the police as per Section 19.

Punishment for failure to report or record a case Failing to report the commission of an offence under the section 19 (1) or under the section 20 or failing to record such offence under the section 19(2) shall be punishable under the section 21.

No Discretionary Jurisdiction Courts cannot exercise their discretionary powers in POCSO cases. They cannot reduce the term of imprisonment to a term less than the minimum term stipulated under the Act.

Confidentiality of the Child and the Family Media has to secure the identity and privacy of the child. Disclosing or publishing the identity of the child victim by mentioning name, address, neighborhood, school name and other particulars is punishable with imprisonment of not less than six months but extendable to one year or with fine or with both. It also prohibits making of negative reports that cause harm to the child's reputation. Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child as per the Section 23.

Reporting And Trial Of Sexual Abuse Cases

Under Section 19 of the POCSO Act, Reporting of offences by any person including the child has been made mandatory. Section 21 of the Act provides punishment for failure to report or record a child sexual abuse case. However, a child cannot be punished for failure to report mentioned in Section 21 (2)}. It makes it the legal duty of a person who has knowledge that a child has been sexually abused to report the offence; if he/she fails to do so, he/she may be punished with six months' imprisonment and/or a fine.

According to the act the evidence of the child should be recorded within a period of thirty days of the Special Court taking cognizance of the offence and the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.

It also provides that the Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.

Punishment Under Pocso, 2012

The POCSO act also provides provisions for punishment for false complaint or false information.

The Act prescribes stringent punishment according to the gravity of the offence and prescribes rigorous imprisonment for a term, which shall not be less than ten years but which may extend to imprisonment for life and also fine as punishment for aggravated penetrative sexual assault. The Act also prescribes imprisonment of either description, which may extend to three years or with fine or with both as punishment for storage of pornographic material involving a child. It also prescribes punishment to the people who traffic children for sexual purposes.

The main punishments are mentioned below:
  1. For penetrative sexual assault, the sentence not less than seven years extended up to life imprisonment along with fine under section 4 of the POSCO Act.
  2. Aggravated sexual assault committed by a person of trust or authority like police officer under section 6 would be punished with not less than ten years and extended up to rigorous life incarceration and fine.
  3. For the non-penetrative sexual assault committed by a person with sexual intent must be punished with not less than three years and extended up to 5 years of imprisonment under section 10 of the POSCO Act.
  4. Under section 10, if the aggravated sexual assault is done by the authority or by the person of trust, it would be punished with not less than five years and extended up to seven years of incarceration.
  5. For sexual harassment under section 12 of the POSCO Act, prescribes a punishment of 3 years along with fine.
“As per section 42 of the POCSO Act, where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

Compensation

The Special Court may pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage of the FIR. Such interim compensation paid to the child shall be adjusted against the final compensation, if any. The Special Court may recommend award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence as per the Rule 7 of POCSO Rules, 2012).

Landmark Case Of Tuka Ram And Anr V State Of Maharasthra, Air 1979 Sc 185

Also known as the Mathura case. Here two policemen in custody raped a young tribal girl. The session judge ruled that she had consented for it and it brought light upon the rape laws of India. Later the Bombay court held that, while providing the judgment, the judges of session court did demarcate between rape and sexual intercourse but forgot to distinguish between consent and passive submission.

On such observations, the defendants were found guilty of rape. Later the Supreme Court ruled that as there was no sign of assault on the girl's body and no resistance was made, there's a chance that maybe the girl did incite the men. Such rationale in judgments brought several changes in our rape laws. Few of them are mentioned below.

Criminal Law (Second Amendment) Act, 1983 inserted section 114(A) in the Indian Evidence Act, 1872 which states that in a prosecution for rape where it has been already proved that the sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then Court shall presume that she did not consent as a rebuttable presumption of law.

Section 376 of the Indian Penal Code, 1860 underwent a change in which sections 376(A), 376(B), 376(C) and 376(D) were added which were further amended by Criminal Law Amendment Act, 2013.

Act added the provision for “custodial rape” under section 376(2) of Indian Penal Code, 1860 for the offenses, which take place when a victim is in the custody of the state.
The Person liable under section 376(2) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
Act amended the idea of burden of proof, which always lies, on the prosecution. After the amendment, in cases of rape where sexual intercourse was already established, the burden of proof will lie on the accused.

The Act introduced section 228A in the Indian Penal Code, 1860 that prohibits any publication regarding the identity of rape victims and any matter through which victim's identity could be known, subsequently amended by Criminal Law Amendment Act, 2013.

So, Mathura rape case was monumental in context of both social and legal perspective which sparked huge protests and public outcry for the very first time in India for the cases of rape at a very large level and which further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.

Misuse Of Pocso Act, 2012

Coming done heavily on making false sexual abuse complaints against a person to wreak vengeance, the Kerala High Court has held that any attempt to misuse the provisions of the Protection of Children from Sexual Offences Act (POCSO Act) to settle scores with the opponent need to be nipped in the bud. The court observation came out when a POCSO case against a person was found a fictitious one. The court also directed to inquire whether prosecution steps can be taken under section 22 of the POCSO Act and if so, police should take necessary steps against those who made false complaints.

According to the court, the allegation of sexual abuse of a child was a matter of very serious concern and one affecting public conscience. POCSO Act provides for very deterrent punishment to the guilty. "Hence, a false case of sexual abuse on a child has also to be treated very seriously and any attempt to implicate a person falsely in an offence under the provisions of POCSO Act has also to be seriously dealt with," it observed.

The court issued the order while dismissing a petition filed by Sujatha, mother of the victim minor girl in the case, seeking a directive to entrust the investigation to a special investigation team. According to the complaint, the accused trespassed into the house of the petitioner and caught hold of a 16-year-old daughter, while she was alone there. The petitioner alleged that the police does not effectively investigate the case.

The court noted that statements of the mother, victim, neighbors and the teachers to whom the victim allegedly disclosed the details were recorded. Though the victim was stated to have disclosed the incident to the teachers, in spite of repeated questioning regarding the identity, she conspicuously did not reveal the name of the accused who was her neighbor and known to her. She revealed the name of the accused two days thereafter.

The police found that the accused was at Karunagappally, far away from the alleged place of the incident at Sasthamcotta on that day. The telephone records and the CDR details show that the accused was within the limits of Karunagappally tower location from around 8 am till evening. CCTV footage of the place where the accused was working also checked and it revealed that, much before the alleged time of the incident, accused was seen entering the shop. He left the shop in the evening on that day. After an investigation, police decided to file a final report to refer to the present case as false.

The mother of the victim further filed a complaint before the Sasthamcotta police alleging that one year before the trespassing incident, the accused had given a toffee mixed with a sedative to the victim and committed rape. On a verification of the passport and the travel documents of the accused, it was revealed that he was working in Dubai during the relevant time.

During the argument of the case, the counsel for the mother requested for withdrawing the petition, but considering the nature of the allegation, the court declined the plea.

While dismissing the case the court directed the investigating officer to invoke Section 22 of POCSO Act (Any person, who makes a false complaint or provides false information against any person, with the intention to humiliate, extort or threaten or defame him, shall be punishable for six months or with fine).

National Commission for Protection of Child Rights
Under the Commission for Protection of Child Rights Act, 2005, a commission was set up which was known as The National Commission for the Protection of Child Rights (hereinafter referred as 'NCPCR'). The mandate of commission includes ensuring that all policies, laws, programs and administrative mechanisms are not in contravention with the child rights perspective as laid by the Constitution of India as well as the United Nations Convention on the Rights of Child. A child is defined as any person in the age group of zero to eighteen years of age.

The act doesn't only provide for the constitution of NCPCR but also to establish commissions at the state level in order to protect the rights of the child. It provides for the intent to establish courts for children, or tribunals, substantiated with speedy trial of offences against children so that the justice can be provided without any delay. The establishment of this commission was led by:
  1. the Declaration on Survival, Protection and Development of Children adopted by the UN General Assembly in 1990;
  2. the acceding of 1992 by India to the Convention on the Rights of the Child;
  3. the National Charter for Children,2003;
  4. the special session of UN General Assembly, which adopted an outcome document, titled “A World Fit for Children”.
The vision of this Commission is to channelize a rights-based perspective flowing into national policies and programs, as well as subtle responses at State, District and Block levels, looking after specifications and strength of every region. In order to touch every child, a high skilled penetration to the communities and households is required. Therefore, the Commission visualizes a role for the state that is indispensable in sound institution-building process at the community level as well as a societal concern for well being of the children.

Under the 2005 Act, the NCPCR shall exercise all the powers of a Civil Court during an inquiry of any matter under the Code of Civil Procedure, 1908. The Commission under any sort of inquiry can acquire the discovery or production of any document including evidence on affidavits. It could also exercise the power to requisite any public document or copy thereof from any office or court. Apart from having the power to direct the case to a Magistrate, it is also authorized to issue the commissions for the purpose of witness examination.

The NCPCR can make recommendations to start the proceedings after inquiry, for prosecution or any other action as the commission may deem fit in the interest justice, equity and good conscience. The Commission can approach the Hon'ble Supreme Court or the High Court for such directions, writs or orders as the Court feels necessary or recommend to the authority to grant interim relief to the family of victim as laid by the Commission. Thus, this indicates that the powers of commission is very much weak.

Functions of the Commission
The following functions can be exercised by the committee:
  1. Examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation
  2. Present to the Central Govt., annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
  3. Inquire into violation of child rights and recommend initiation of proceedings in such cases;
  4. Examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disasters, domestic violence, HIV / AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;
  5. Look into matters relating to children in need of special care and protection including children in distress, marginalized & disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;
  6. Study treaties and other international instruments and undertake periodical review of existing policies, programs and other activities on child rights and make recommendations for their effective implementation in the best interest of children;
  7. Undertake and promote research in the field of child rights;
  8. Spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, media, seminars and other available means;
  9. Inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of Central Govt. or any State Govt. or any other authority including any institution run by a social organization; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;
  10. Inquire into complaints or take suo moto notice of matters related to:
    1. deprivation & violation of child rights;
    2. non implementation of laws providing for protection and development of children;
    3. non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children;
      or take up the issues arising out of such matters with appropriate authorities; and
  11. Perform such other functions considered necessary for the promotion of child rights and any other matter incidental to the above functions:
  12. Analyze existing law, policy and practice to assess compliance with Convention on the Rights of the Child,
  13. Present to the central Govt. annually and at such other intervals as the Commission may deem fit, reports upon the working of those safeguards; Undertake formal investigations where concern has been expressed either by children themselves or by concerned person on their behalf;
  14. Promote, respect and serious consideration of the views of children in its work and in that of all govt. departments and organizations dealing with child;
  15. Produce and disseminate information about child rights;
  16. Compile and analyze data on children;
  17. Promote the incorporation of child rights into the school curriculum, teachers training and training of personnel dealing with children.

The Commission works on attaining the above-mentioned goals by the following steps:
  1. Necessary recommendations shall be made to the concerned government or action authorities in case the violation of child rights is noticed.
  2. Necessary recommendations shall be made to the concerned government or action authorities against the individual responsible for such violation of child rights.
  3. The Supreme Court or the High Court shall be approached for directions, orders or writes as the Hon'ble Court may deem fit, for the notice of violation of the rights of the child.
  4. There shall be recommendations to the concerned government or authorities to grant the interim relief to the victim or family of the victim of child abuse.
  5. Public hearings shall be carried out for cases of violation of child rights and recommendations shall be made out.
  6. Inspections and investigations shall be carried out for the cases of violation of child rights and recommendations shall be made out.
  7. The review of laws shall be carried out through working groups or committees constituted for the purpose of child protection.
  8. Surveys and research on all aspects shall be carried out on issues related to child rights and compilation of data shall be done.
  9. Awareness shall be created through campaigns and seminars.

Societal Participation
The functioning of the Commission will be fruitful only with the participation and involvement of the society. The Charter of the Commission itself invites every organization, public or private and all citizens:
  1. to interact with the Commission to improve its efficiencies,
  2. to imbibe the spirit of protection, safeguarding & promoting child rights;
  3. to honor and abide by the Rules and Regulations framed by Govt. towards protection of child rights;
  4. to share information with other citizens on protection of child rights;
  5. to bring cases of violation of child rights to the notice of the Commission;
  6. to offer suggestions to streamline the functioning of the existing institutions related to child rights, promote accountability and responsibility, and
  7. to adopt the precepts of protection of child rights.

Appraisal of the Functioning of NCPCR
The positive role of National Commission for the protection of child rights has been reported many a time. For example, in 2007, it took initiatives to protect school children from harsh corporal punishments. The commission wrote to all chief education secretaries recommending that there should be no gradations while judging corporal punishment and that even small acts should not be condoned as they may lead to gross violations. This initiative of the commission aimed to ensure the enforcement of international recommendations in this regard also.

The involvement and assistance of Panchayat Raj Institution in child protection matters with the commission has made commendable results. For example, in Meghalaya, 132 cases of children missing were reported through the initiative of local Panchayats. In Bangalore, the child Rights Trust has been holding special 'gram sabhas' with the support of the rural development and Panchayat Raj department.

Another notable, instance is that the NCPCR had submitted its reports towards the strategies for protection of child rights especially for abolition of child labor in Eleventh plan.
Further, the commission has started a helpline on education program in the light of the rights of children free and compulsory education act, 2009.

In yet another instance, certain guidelines were issued by the commission to the Railway Authorities for the protection of Railway children.

Again, in another situation, the expert NCPCR visited Amaravati district, in the light of the information about the problems being face by tribal children in Ashram schools, Anganwadis, healthcare centers and governmental schools, and issued directives to the district administration for implementation of law.

The most notable aspect is that, in this case, the NCPCR has constituted a team in order to find out the progress made on the directives issued by the commission. All these incidents reveal the genuine attempts made by the NCPCR towards understanding of the issues relating to child rights and the endeavors to solve the same with inviting a partnership of systematic follow-ups and various agencies. The attempts of NCPCR again revealed that various Naxalite groups in India home formed the divisions for their children.

Though the United Nations conducted investigations into these allegations, there were no credible reports of any Government security forces. The National Human Rights Commission has recommended that the state police headquarters should create a system of mandating reporting of all incidents of missing children to the NCPCR within 24 hours.

All these activities of the NCPCR show that the commission is actively participating in discharging the responsibilities entrusted to it by the 2005 Act.

Award Winning Article Is Written By: Ms.Ishita Bhatnagar
Awarded certificate of Excellence
Authentication No: MA33230366969-10-0321

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