Child Abuse and Protection Measures
under Law In India
Junaid ul Islam
PhD Scholar, School of Legal Studies
RIMT University, Mandi Gobindgarh,
Child abuse is harm to,
or neglect of, a
child by another person, whether
adult or child. Child abuse happens in all cultural,
ethnic, and income
groups. Child abuse can be physical, emotional
- verbal, sexual or through
neglect. Abuse may cause serious
injury to the child and may even result in death. A problem that is only beginning
to come into light in India rape, sexual abuse, and sexual harassment are worldwide
issues of gender
violence. There is very little research done in this area in India
and only a few books have been
written, keeping the subject
even further from the consciousness of the country.
However, the problem
persists with staggering incidence, and Indians
unique profile adds to the complexity of an already
difficult subject. Fortunately, the issue of child sexual abuse is slowly becoming
a more recognized issue, and for
this reason, this paper
will focus much on sexual abuse against minor children:
the laws, victims, and perpetrators. Finally,
an analysis of the aspects
of Indian culture
that make this issue particularly difficult to understand
and cope with will be presented.
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. This paper identifies three main issues arising from POCSO: age of consent,
age determination, and mandatory reporting; issues that highlight
the fact that well- meaning laws can nevertheless have unintended negative
Historically, child sexual
abuse (CSA) has been a hidden problem in India, largely ignored in public discourse and by the criminal justice system.
Until recently, CSA was not
acknowledged as a criminal offence; rape was the main, if not the only, specific
sexual offence against
children recognised by law in India. In the absence
of specific legislation, a range of offensive behaviours such as child sexual assault
(not amounting to rape), harassment, and exploitation for
pornography were never legally sanctioned. In the past few years activists,
Non-Governmental Organisations (NGOs) and the central
government’s Ministry of Women and Child Development
have actively engaged in helping break ‘the conspiracy of silence’ (HRW 2013) and have generated
substantial political and popular momentum to
address the issue. The movement, spearheaded by the Ministry of Women
and Child Development, led to the
enactment of new legislation called the Protection of Children from Sexual Offences (POCSO)
2012. This commentary highlights the distinguishing features of POCSO and focuses
on three issues that might have consequences for how the law operates in
reality. In this reflexive piece, we begin by
briefly discussing the prevalence of CSA in India and the legal response to it.
We draw upon existing literature,
legal documents, media reports, access to police sources and personal practitioner experience to inform the paper.
Abuse 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)1. 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)2 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. The paper summarises the findings of several studies and reports that 18–20 % of CSA occurs in the family and around
50 % in institutional settings. 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 victimization 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)3 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
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)5. 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)6.
Legal response to India
Until 2012, the only sexual offences against
children recognized 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 recognized 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.
Since 2001, there has been a gradual but steady rise in
recorded incidents of sexual abuse i.e. child rape. Although there is no evidence to indicate that globally the prevalence
of CSA has been going up over the years (Barth et al. 2013)7, we might hypothesize
that increased reporting in India over this period might be the result of greater
public awareness, education
and a more sensitive criminal
justice response to CSA. Following
the enactment of POCSO, the number of offences registered under rape itself went up 44
% nationally and 68 % in the state
of Maharashtra within a year, lending support
to the hypothesis. Further, detailed
figures from Maharashtra provided by the second author indicate that total registered crime under POCSO was 2540 offences in 2013 and 3858
offences in 2014, amounting to a 51 % increase in 1 year.
Distinctintive features of POCSO
POCSO 2012 does not use the
term ‘rape’ more commonly used and also does not confine penetrative sex to penile penetration. Instead,
it broadens the offence termed ‘penetrative sexual assault’ (Section 3) to include oral sex, as well as, insertion
of any object into anus, mouth or vagina, in addition to penile penetrative sex. In State vs
Pankaj Choudhary 2011, (pre-POCSO) the accused could only be
prosecuted for ‘outraging the modesty of a woman’ for digital
penetration of the anus and vagina of
a 5 year old child. The prosecution was unsuccessful in proving rape as the High Court ruled that digital
penetration was not recognised as an offence
under the India Penal Code (Delhi High Court 2011)8. The addition to the definition of penetrative assault
has increased the cover of protection for children. POCSO also criminalises a range of behaviours as being sexual assaults, short of penetration (Section 7). Additionally, the offences of ‘aggravated’ penetrative and non-penetrative
sexual assault is made more serious and attract stronger penalties (Sections
5, 9) when committed by a specified
range of perpetrators, in a wide array of
situations or conditions, and/or has a severe impact on the victim. This
includes sexual assault
committed by persons in authority or position of power with respect to a child, committed by persons in a
shared household with the child, in conditions
such as: gang rape, causing
grievous bodily harm, threatening with firearm or corrosive substances, during
communal or sectarian violence, assaulting a child under 12 years of age, or one who is physically or mentally
disabled, causing a child to become pregnant, or knowingly assaulting a pregnant child, or infecting the child with HIV, repeated assaults, or accompanied by
public degradation. The definition is very comprehensive and covers a range of possible
POCSO is also forward
thinking in many aspects, in that, the definition of sexual harassment includes repeatedly or
constantly following, watching or contacting a
child either directly, electronically or through other means [section
11(iv)]—thus, covering incidents
of child harassment via sexting or sexual cyberbullying. However, the interpretation of what might constitute
‘repeatedly’ or ‘constantly’ following
or contacting a child with sexual intent (with the law specifying sexual intent being a ‘question of fact’) is
unspecified in POCSO 2012 and consequently is
The Act is quite distinctive
in that it penalises abetment of or attempt to commit any of the offences listed in the preceding sections
(Section 16). Another ‘extraordinary clause’ (Section 29) in
the Act is the presumption of guilt of the accused, until proven innocent.
This matter of jurisprudence lends itself to problems in the light of some of the points raised
below (Andrade and Rao
The provision of Special
Courts (Section 35) where trial proceedings may be conducted in a more sensitive manner with
the victim’s testimony given either ‘in camera’ (i.e. privately), via video-link, or behind curtains
or screens, is intended not only
to reduce trauma but also protect the identity of the child. The Special Court plays a pivotal role in how the law and the evidence
may be interpreted.
Implementation of POCSO 2012
involves various criminal justice, state and third sector agencies and is very resource intensive. Various problems arising
from resource scarcity and
lack of appropriate training which affect how investigations, prosecution and medical examinations are
conducted in cases of CSA in have been identified by stakeholders in a state wide consultation in Maharashtra (Maharashtra State Consultation
of revisiting those problems which impact the implementation of the
Act, this paper focuses on three issues— namely,
age of consent, obligatory reporting and age determination—embedded in the provisions of the Act that might cause unintended negative consequences individually and in combination.
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
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).11 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
Finally, lack of proper
support and professional help to the victim and their family can sometimes cause greater
(Oz and Balshan 2007)12. 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
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)13; Ainsworth 2002)14. The Report for the Royal
Commission into Institutional Responses to Child Sexual Abuse (Mathews)
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) 15. However, mandatory reporting
obligation under POCSO raises three problems specific to the Indian context:
sex less than 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
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.
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)17. 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)
18. 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)19. 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 UID (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
Child Sexual Abuse
Sakshi vs Union of India
(2004) The Supreme Court developed
guidelines for the conduct of child sexual abuse trials37:
The screen or arrangement
where the victim is or is to be made witnesses does not see the accused's
body or features.
b. The questions put to a cross-examination on the behalf
of the accused in so far as they
are specifically relevant to the incident should be answered, in writing, to
the president of the Court,
who can refer them,
in plain and not misleading language, to the victim or to witnesses.
as required, should be permitted for the victims of child abuse or rape while giving testimony in court.
In Tara Dutt vs the State (2009): The criminal
law of our country did not recognize digital rape as a detestable offence. As a result, the
petitioner has been convicted of the
fact that a woman's modesty was insulted by criminal law in compliance with Section 354 of the Indian Penal Code.
In Vishal Jeet v/s Union of India AIR 1990 S.C. 1412; In this case, the SC has briefed the State Governments and Union Territories in the following directions:
legislation requiring implementing authorities to take effective and decisive action in the eradication of child trafficking under
the existing laws.
Take action to provide
appropriate and refurbishing housing.
Create a special Advisory
Committee consisting of politicians, sociologists, criminologists, women / child welfare and voluntary social
organizations, which will be
responsible for making recommendations on the eradication of children's prostitution.
Constitution of India and Protection of Children
The Constitution recognizes
the children as the most vulnerable human beings and thus had made provisions correspondingly. They are the most
affected than any other age group by
the actions of the state and any other individual. The children are not seen as people who have a mind and
vision of their own and are often guided
by the adults. Since they have no political and economic power, their voices are often suppressed.
Constitution obliges the State to provide free and compulsory education to all children from age
of 6 to 14 years.
The Constitution prohibits the employment of any child
below the age of 14 years to work in a factory, mine or any hazardous employment.
Right to equal
opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and
guaranteed protection of childhood and youth
against exploitation and against
moral and material abandonment.
these rights, they also have the right to be protected from being trafficked and forced into bonded labor, right to equality, right against discrimination and right to personal liberty.
The state must
make special provisions for women and children, protect the interest of minorities,
promote educational interest of weaker sections and also raise their standard
Additional efforts taken by the government
i. National and
State Commission for Protection of Child Rights: In addition to their counterparts in other Indian states, it plays a key role in improving children’s status in India. It
could do a lot more with more resources, more support
from the central
government and better trained workers.
More significant than ever is their position
as independent monitors
of government action. Recently, they have taken a
massive job to track the implementation of India’s
landmark right to education Act, which mandates state governments to provide all 6-14 year olds with free education in neighborhood schools
and includes crucial
provisions on the safety of children.
ii. Child Protection
Services Scheme: In 2009, the
Ministry of Women and Child Development
established the Integrated Child Protection Scheme in India which was the largest ever effort to strengthen
child protection initiatives. The purpose was
to promote and introduce innovative institutions and programs. The most ambitious of these was the
appointment of social workers and the
creation of committees to deal directly
with children’s rights
in every district
of the country.
Child welfare committees: They are among the most significant child welfare systems in India at the
moment. They are powerful quasi-judicial bodies of experts who coordinate the welfare authorities and
the police and audit residential child care
facilities. Increased number of committees was anticipated in the Integrated Child Protection System (ICPS). Founded in
2000 under the Juvenile Justice Act, at least
one child protection committee should be set up in each district, financed by the State Government.
Act: The key law overseeing child protection in India is the Juvenile Justice Act of 2015. A series of
“model laws” have been formulated up by the central
government for the application of the law, which have since been enforced
by individual states and in some cases changed. The act protects two groups of children: those who are in
conflict with the law and those who need protection and care.
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