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A CRITICAL ASSESSMENT OF LAWS AGAINST CHILD SEXUAL ABUSE IN INDIA (By- Ritik Agrawal & Siddhi Singh)
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A CRITICAL ASSESSMENT OF LAWS
AGAINST CHILD SEXUAL ABUSE IN INDIA
Authored
By- Ritik Agrawal & Siddhi Singh
CONTENTS
Abstract
Gandhi,
known as the "Father of the Nation," famously made the proclamation
that "India would be liberated when the women of India feel secure walking
in the streets of India at midnight." On the other hand, this is still a
goal that has not been accomplished and is a very long way from being a
reality. Children are held with high esteem and worshipped in India. On the
other hand, at the same time, there has been a rise in the number of
paedophilia instances that have been reported in India. The number of occurrences
of child rape that were reported to authorities increased by 151 percent
between the years 2009 and 2014. Children with disabilities are at a greater
danger. This puts these children in a particularly vulnerable position.
Additionally contributing to the severity of the issue is the paucity of
information provided by the appropriate govt. regarding disabled children.
According to the National Crime Records, an increase in the number of cases is
being seen as a direct result of an increase in the reporting of instances.
Introduction
Abuse of
children in sexual encounters is not a new phenomenon in India; nevertheless,
the issue has only lately come to the attention of the general public. Other
crimes of the CSA were mostly neglected before rape became the major offence
that was acknowledged by the public. The severity of the problem of pervasive
sexual abuse was brought to the forefront in a survey that was conducted in
2007 and was funded by the government of India. The survey involved the participation
of 12,500 children from 13 different states.[1]
Children either aren't conscious about getting abused or are too afraid to tell
their parents about the occurrence when they do become aware that they are
being molested. According to the poll that was conducted in 2007, just twenty
five percent of the youngsters have spoken up and only 3 percent have gone to
the police with their allegations. This is because of the strongly ingrained
societal stigmas associated with the phrase "sex" and CSA, as well as
the widespread ignorance regarding these topics. The children had a hard time
objecting to the older individuals since they were in a position of authority,
which made it difficult for them to do so.
The absence
of particular legislation for the recognition of a range of objectionable
behaviours relating to Child Sexual Abuse sometimes for pornographic purposes,
was never approved by the law. These behaviours include the following: Rape
(Section 375), outraging the reticence of a woman (Section 354), and going
against nature acts, which are defined as "carnal intercourse against the
order of nature with any man, woman, or animal," were covered under three
Sections of the IPC until the year 2012. These were the only sexual offences
that were covered (Section 377). Therefore, offences such as sexual assault
that does not involve penetration, harassment, and exploitation were not
expressly recognised as being crimes. Through the publication of the reports
titled "Breaking the silence," the Central government made a
concerted effort to bring attention to the problem in both public discourse and
political arenas. After a sufficient amount of momentum was produced, then
POCSO was enacted.[2] It
does not discriminate based on gender and acknowledges that males can also be the
sufferers of sexual assault. In addition to making acts, and the production of
pornographic material involving minors illegal, it requires the construction of
specialised courts in order to speed up the judicial process.
Combatting
Pedophilia In India
Paedophilia
is defined as the sexual exploitation of minors for one's own sexual enjoyment,
and it is considered a mental disorder. Paedophilia is "a paraphilia in
which sexual acts or fantasies involving prepubertal children are persistently
preferred or exclusive method of achieving sexual excitement.” Paedophilia is a
type of paraphilia. A man who was arrested for allegedly raping a girl who was
13 years old was recently denied bail by an order that was issued by the
Allahabad High Court. The court also mentioned the impact it will have on the
youngster and directed the judicial system to crack down on offences of this
nature.
According
to the World Health Organization (WHO), paedophilia is a mental disease that is
characterised by an ongoing sexual interest in children on the part of the
patient. The disease cannot be easily treated; nevertheless, the behaviour can
be regulated by employing several processes that are designed to cope with the
problem. Paedophilia is being treated by a small percentage of India's
psychologists. Because of the negative connotations associated with the
condition, those who are afflicted with it often avoid seeking therapy.
Paedophiles, on the other hand, are not the same as people who abuse children
in any way. There are some paedophiles who do not abuse children. India suffers
from a severe lack of awareness on the condition. Therefore, discussions about
the illness are required in order to ensure that those who are afflicted with
it receive the appropriate therapy, which will lead to a reduction in the
number of subsequent unfortunate occurrences.
POCSO:
An Enigma Or Full Of Loopholes?
The
Protection of Children from Sexual Offenses Act (POCSO), entered into effect on
November 14, 2012, is expressly designed to address crimes such as the sexual
abuse of children and the production of pornographic material directed toward
children. The Act widened the sphere of getting offences registered which are
done against minors, which were neglected by the IPC, through its 46 clauses
(IPC). This amendment broadened the scope of the crime for aggravated penetrative
sexual assault to constitute the punishment for abuse committed by a person including
public servant, member of the police or armed forces, or management or staff
member.[3]
In
addition, it outlined the process for registering incidents, complete with a
section outlining the penalties for failing to report an incident or filing a
false complaint. Additionally, it required that it be done in a manner that is
child-friendly. The POCSO Act provides definitions for the crimes of sexual
assault, sexual harassment, the dissemination of pornographic material, and the
protection of the interests and welfare of children. The purpose of the act is
to ensure that the child's best interests are protected throughout the entirety
of the court procedure.
Characteristics
Of Act
POCSO is
gender neutral, which means that it will be used to crimes of this sort
perpetrated against children regardless of the gender of the kid. This ensures
that the law is consistent across the board. In contrast to the standard rule,
which states that a person is presumed innocent until proven guilty, this act
shifts the burden of proof to "guilty until proven innocent."
Concurrently, in order to deter people from abusing the legal system, the law
includes penalties for filing false complaints and spreading false information
with the purpose to do harm. In accordance with this Act, the recording of all
instances of abuse is required. In every instance of child abuse, the local
police department is required to file what is known as a First Information
Report (FIR). It is acceptable to record the verdict’s claim at his/her home or
another location of their choosing; however, the recording should preferably be
done by a female law enforcement officer who holds a level higher than that of
sub-inspector. This legislation outlines all of the potential sexual offences
that can be committed in various forms and the utilisation of juveniles for
pornographic reasons. In addition, this Act outlines the penalties that must be
served for those who seek to commit a crime that is covered by the Act, as well
as for those who aid and abet those acts or refuse to report them. The Act
recommends reporting any offence for which there is even the remotest
possibility that it should be reported.[4]
In
addition, the Act stipulates the establishment of specialised courts to preside
over these proceedings, each of which must be finished within a period of one
year. The Act mandates that the minor cannot come into contact with the accused
in any way while the evidence is being recorded, and that the minor's identity
must be concealed at all times throughout the inquiry and the proceeding. The
kid will not be required to repeat their evidence in court, and instead, they
will be given the option to deliver their testimony through a video stream. The
questions that the defence wants answers, in order to better assist the minor,
the court may make use of an interpreter, translator, special educator, or any
other kind of qualified expert. The failure of educational and employment
possibilities, are some of the established criteria that the Special Court uses
to determine whether or not to award compensation.[5]
Consensual
sexual activity is now treated differently in the Indian Penal Code as a result
of the POCSO Act. The minimum age required to enter into a legally binding contract
has increased from sixteen to eighteen years of age which clearly signifies
that any person, including another kid, could be charged for participating in
such sexual activity with a child, regardless of situation when the child gave
their consent to the sexual act. In addition, a married couple can also face
criminal charges if they engage in sexual activity with their minor child while
they are married to that child. The POCSO Act, which was passed in 2012, does
not recognise any sexual actions that are consensual that take place between
children or between a kid and an adult.
Identifying
Loopholes In The Act
There are
still several gaps in the POCSO Act, despite the fact that the Act has been
seen as progressive and recognized all around the country. As a result, we will
talk about the issues and ambiguities that are present in the POCSO Act, any of
which may produce unanticipated negative outcomes on their own or in
combination with one another.[6]
The Age Of Consent
According
to the POCSO Act, a child is legally referred as someone who hasn’t yet reached
the age of eighteen. If the victim is below age of 18, any unnatural act that
is described under POCSO would be recognized as a criminal offence because the
consent that is given by a minor is not considered to be valid consent as per
the law. This would make any sexual act that is described under POCSO a
criminal offence. As a result, the most significant criticism levelled against
this Act is the fact that it renders the approval of underage woman null and
void while placing criminal responsibility on the adult. Regardless of how
progressive the Act may be, sexual activity between kids in which consent is
given has always been debatable in law because it does not give the children
autonomy in sexual matters. The study was conducted in order to investigate.
The judgment of whether or not a sexual offence was committed against a
juvenile would be highly dependent on the person's subjectivity how one
interprets the event or the situation. This could even further lead to misuse
of legal system. Either it is overly permissive of CSA or it is too limiting of
children's liberty in such things. Neither option is acceptable.
This issue
was recognized by the Bombay High Court, which resulted in the granting of bail
to the 19-year-old lad who was arrested under this Act for sexually abusing her
younger relative. On the other hand, the girl admitted over the course of the
investigation that it was an act of mutual consent.
In the case
of Maruthupandi v. State, the apex Court of India determined that the Sections
of POCSO will still be applied against the partner even if a juvenile girl loves
a major partner and has a consenting intercourse with the partner. This was the
conclusion that was reached. In addition, it was further submitted that if a
minor girl filed a complaint about a violation of the POCSO Act, then it became
a violation against the state, and the subsequent compromise won't remove the
violation. This is because the POCSO Act requires that a complaint be filed by
the victim of the violation. As a result, the petition that was submitted to
the Supreme Court brings up the question of whether or not an adolescent boy
who has a romantic relationship with a girl who is underage can be found guilty
of the offence under the POCSO Act.[7]
The Madras
High Court also advised that consensual sexual relationships with girls older
than 16 years old should be removed from the purview of the POCSO Act. This was
one of the suggestions made by the court. Further, it was suggested that the
Act should be changed so that the offender's age could not be more than five
years older than that of the victim, provided that the victim was at least 16
years old. This would ensure that the impressionable age of the victim would
not be exploited by an older offender who would have passed the age of
infatuation or innocence by the time the crime was committed.
As a
result, it is clear that the majority of cases that are filed in accordance
with the POCSO Act are initiated by the families of adolescents and teenagers
who are involved in romantic relationships. Because of this, the courts need to
determine the nature of the act that should fall under the ambit of the Act and
the nature of the act that should not fall under the ambit of the Act. If this
were done in a hasty and irresponsible manner, it could cause irreparable
damage to the youth who had only acted innocently, and this would be due to the
severity of the punishment. It shouldn't become a tool that some groups in
society may use to break the law, since that would be a terrible thing.
Age Estimation And
Determination
The POCSO
Act is fraught with additional complications, one of which is the assessment of
the age of the child. The aforementioned Act does not specify which forms of
identification should be utilised in order to ascertain the age of a child
victim. In the case of Jarnail Singh v. State of Haryana (2013), the Supreme
Court stated that the age of the victim ought to be determined in accordance
with Rule 12 of the Juvenile Justice Rules, and in accordance with said rule,
preference ought to be given to the school documents in the process of
determining the age of the victim. This was mentioned in the context of the
fact that the victim's age ought to be determined. In the event that other
documents are presented, the children will be required to go through a bone
ossification test, which at most can only provide a ballpark estimate of the
child's age.
Therefore,
the methods utilised by forensic scientists to determine a person's age could
potentially be imprecise and difficult. In the case of Babloo Pasi vs. the
State of Jharkhand and Anr (2008), it was observed that establishing an
individual's age can be challenging in the absence of a birth certificate or
other official documents. Although the opinions of medical professionals can be
helpful in this regard, they cannot serve as the sole and deciding factor in
this regard. In addition, it was pointed out that overly technical approaches
should not be employed, and that the court should provide the benefit of the
doubt to the child while also ensuring that the legislation is not being abused
in any way. As a result, establishing the defendant's age is essential under
the POCSO Act since it plays a role in determining the outcome of both the
charging and trial stages. Because of this, the requirements of the POCSO Act
need to be unambiguous regarding the determination of the age and whether or
not the benefit of the doubt should be granted in situations in which the
medical or forensic test does not provide an accurate assessment.[8]
Mandatory Reporting
The
requirement placed on medical experts, in general, and professionals working in
the field of mental health, in particular, to inform the authorities of any
potential or actual criminal activity is one of the problematic aspects of the
Act in question. If you violated the CSA's reporting requirements, you might
face a fine of up to $2,000 or a prison sentence of up to six months, or both.
The confidentiality of the exchanges between the physician and the patient is
violated by the mandatory reporting clause. Children who have engaged in sexual
activity and subsequently get pregnant are also deemed to be victims of sexual
assault. As a result, it is required that medical practitioners alert the
authorities of any such pregnancies that they discover. However, this violates
a clause of the Medical Termination of Pregnancy (MTP) Act, 2003, which states
that medical professionals are obligated to keep the identity of individuals
seeking abortions a secret and cannot disclose any information about them.
If they are
required to give their private information, then the interaction that
professionals have with young people will be hindered because of the violation
of privacy that will have occurred. As a result, another provision of the Act
stipulates that no person shall be held responsible, either civilly or
criminally. Also, with obligatory reporting is that it begs the question of who
should be responsible for enforcing the legal obligation when the police
already hardly possess the capacity to do so. This is a problem because the
police already barely possess the capacity to do so. Due to the weak method for
its implementation and the lack of accountability, a person who fails to report
the cases will have a very small chance of meeting with the penal and financial
punishment.[9]
Administrative Pitfalls
To begin, the police, in spite of
their best efforts, are confronted with a great deal of obstacles while
attempting to carry out an appropriate investigation in POCSO instances. It all
starts with the filing of the first incident report. It is the responsibility
of the police to guarantee that the filing of the First Information Report
(FIR) and the investigation into the Medico-Legal Matter are not delayed in any
way (MLC).
Second, the MLC of the victim is not
performed as frequently as it should be because the family of the victim is
frequently provided misleading information regarding the negative effects of
the MLC on the health of the kid in the long run. Because of this, medical
professionals need to be trained on how to talk to children in a sensitive
manner about what they are going through in order to avoid causing the child
any additional stress. In addition, because of the inappropriate storage
conditions, the forensic samples that are collected by the authorities
sometimes end up being tainted or putrid. In order to ensure that the
evaluation of the evidence can go without any hiccups over the course of the
trial, the law enforcement personnel in charge of the investigation need to be familiar
with the most effective techniques for gathering forensic evidence.
In conclusion, the POCSO Act requires
institutions to monitor and evaluate the implementation of the Act on a regular
basis in accordance with Sections 43-44 and Rule 6 of the POCSO Act. In
addition, these institutions are tasked with raising public awareness of the
various provisions of the POCSO Act. On the other hand, the public has not been
able to scrutinize the internal workings of these departments, including their
monitoring and review processes. To this end, it is absolutely necessary to
investigate the processes devised by such organizations and assess the degree
to which they are capable of producing results that have an impact.[10]
Implementation
Of POCSO
As a result
of the rise in the number of POCSO-related cases, there has also been a rise in
the backlog of those cases. Because of this, there is now cause for concern
because the law is becoming less effective as a result of this. The victims
will not receive prompt justice as a result of this. The low incidence of
successful convictions can be attributed to the frequent delay of court cases
as well as the failure of police personnel to produce investigation reports.
Cases that fall under POCSO are frequently dropped by the police due to a lack
of evidence or other leads in the investigation. Because members of the public
are hesitant to make complaints regarding the CSA, tangible evidence is
sometimes lost as a result of the delay. In a similar vein, the medical
examination is unable to track minor injuries incurred as a result of the sad
incident, which results in the loss of essential biological trace evidence.
In accordance
with Section 28 of the said Act, governments are required to appoint a Sessions
Court as a special court that is responsible for hearing cases related to
violations of the CSA. Notwithstanding this, a significant number of the
legislations are not being followed by the state itself. Additionally, the
judges that have been appointed do not have extensive knowledge of the topic at
hand and have not received any additional training. As a result, the apex Court
has issued specific orders concerning the POCSO. The measures contained
instructions for the fast track courts to avoid unnecessary postponement and the
establishment of various mechanisms to look into this. Additionally, the orders
required that a committee be formed to oversee the status of the case. In order
to assist in the investigation and ensure that witnesses are produced in front
of the trial courts on the appropriate day, the Director-General of Police of
the states has established a special task force. The establishment of an
atmosphere in the courtroom that is welcoming to children in order to forestall
the hostile behaviour of youngsters brought on by anxiety and other factors
connected to the proceeding is of utmost importance.[11]
Landmark Cases
·
Ghanashyam
Misra v. The State, heard on November 27, 1956
In 1956,
the Orissa High Court increased the sentence of Ghanashyam Misra, a school
teacher who had raped a ten-year-old girl on the school grounds. The court did
so because it recognised that the crime had been perpetrated by a person who
was in a position of trust or authority over the kid. According to the
judgement, "the circumstances are all of an aggravating kind. The young
girl who was attacked is just ten years old, while the perpetrator is an adult
who is 39 years old... He took use of his position by persuading the girl to
enter the classroom at the school, where he then did such a heinous deed, the
repercussions of which could very well be the total and permanent destruction
of the girl's future existence. Not just the judge decided to
give the original sentence to 7 years, but he also compelled the defendant
to make restitution to both the child's father and himself.
·
Sakshi v.
Union of India, heard on May 26th, 2004
In a
particular circumstance involving a minor who was victimised by inserting
objects into the genitals or inserting the sexual organ into parts of the body
such as the anus or mouth, the non-governmental organisation Sakshi submitted a
writ petition in the public interest to broaden the definition of rape. This
petition was filed in the name of the public interest. The Supreme Court did
not grant the petition and ended the case brought by the public interest group.
On the other hand, it published helpful instructions for the trial of rape and
sexual abuse cases that involve children. These are the criteria that are known
as the Sakshi:
1. A screen
or other arrangement that prevents the victim or witnesses from seeing the body
or face of the person who is accused of a crime.
2. Any
questions that are asked on behalf of the accused during the cross-examination
process must be submitted in writing to the Presiding Officer of the court. The
Presiding Officer will then decide whether or not to put the questions to the
victim or witness in a manner that is understandable and does not embarrass
them.
3. During
the course of the testimony, victims of child abuse or rape should be given
ample breaks as and when they are required.
·
State Of
Karnataka vs Manjanna on 4 May, 2000
A girl
victim who was 15 years old was denied medical treatment at Hosadgura Hospital
because she had not been referred to the hospital by the police. The court
stated in its decision that it disapproves of such behaviour by public
hospitals, in especially in remote areas where there are a limited number of hospitals,
highlighting the potential for the loss of proof as a result of delays in the
process of performing medical examinations. In addition, the decision noted
that an evaluation of the victim's age should always be made in favour of the
victim, even if there is any room for debate.
·
State of
Andhra Pradesh vs Gangula Satya Murthy on 19 November, 1996
A
sixteen-year-old girl was murdered after being raped and strangled. The accused
was found guilty by the Sessions Court, which then handed down a sentence of
life in prison plus seven years of solitary confinement. On the other hand,
the Court freed him after he appealed his conviction, claiming a few small
contradictions and anomalies. The state of Andhra Pradesh is contesting this
acquittal as being improper. This time, the court came to the conclusion that
the acquittal was an error and demonstrated insensitivity to the situation. It
was stated unequivocally there that "the Courts should assess the broader
probability of a case and not get swayed by tiny contradictions or
insignificant variations in the statement of the witnesses, which are not of a
fatal type to throw out charges of rape."
Conclusion
The passage
of legislation to safeguard children from being sexually abused was an
initiative that was long overdue. It made a substantial contribution in the
overall effort to solve the problem. The problem has been brought to more
people's attention, which has led to an increase in the number of CSA cases
that have been reported. When a child is fragile and yet in the process of
growing up, being subjected to sexual assault or sexual harassment can have a
lasting effect on their mental health and well-being. This traumatic experience
may continue to control their thinking for many years to come and may prevent
them from developing normally in their social lives, which may result in a
variety of psychological issues. It's possible that the victim will suffer as a
result of the failure of the Fast Track Court. Because of this, the Act
contains a number of gaps that could provide difficulties in its application
within the context of India. In order to make the Fast Track Courts more
efficient, everyone should be educated on child rights and given appropriate
training. Therefore, eliminating the issues associated with CSA should be of
the utmost importance and call for the concerted efforts of the general public,
the administrative apparatus, and the judicial system.
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Article Information
A CRITICAL ASSESSMENT OF LAWS AGAINST CHILD SEXUAL ABUSE IN INDIA (By- Ritik Agrawal & Siddhi Singh)
Author Name: Ritik Agrawal & Siddhi Singh
Title: A CRITICAL ASSESSMENT OF LAWS AGAINST CHILD SEXUAL ABUSE IN INDIA
Email Id: Ritik Agrawal-ritikagrawal882@gmail.com & Siddhi Singh-singhsiddhi2004@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/04
About Journal
International Journal for Legal Research and Analysis
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