Open Access Research Article
POSCO ACT BY:- RITTIK RAMAN
Published Paper
Article Details
POSCO ACT
AUTHORED BY:- RITTIK RAMAN
BA.LLB.(HONS)
Amity Law School Noida
Safety and security don’t just happen; they are the result of collective
consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.”
- Nelson Mandela
1Child rights, akin to human rights, stem from the belief that
every individual possesses inherent and immutable rights from birth,
irrespective of gender, age, religion, race, ethnicity, or other factors.
It is acknowledged that children
require special protection to ensure their unfettered, wholesome
development devoid of exploitation or harm.
The responsibility for safeguarding children rests with a multitude of
actors including parents, schools, communities, law enforcement, judiciary,
healthcare professionals, voluntary organizations, child welfare groups,
district child protection units, and other entities. Together, they must
create an environment conducive to shielding children from harm and
facilitating a childhood free from fear.
Globally, incidents of child sexual abuse are escalating, with India ranking
among the top five countries
grappling with soaring rates of juvenile delinquency. However, the existing
criminal legislation in India falls short in addressing this critical issue
comprehensively. The Law Commission, in its 172nd
Commission Report, conducted a review post the Sakshi v. U.O.I. case, focusing on laws
pertaining to sexual offenses. It recommended numerous amendments to address
the matter effectively.
Subsequently, the Indian Penal Code underwent several
revisions through the 2013
Criminal Law Amendment Bill, following the Nirbhaya case.
India is home to 430 million children, constituting one-fifth of the
global population under 18 years old. These children encounter significant
challenges from an early age, including malnutrition, illiteracy, abduction,
forced labour, substance abuse, sexual exploitation, and pornography. Of particular concern
is the issue of child sexual abuse, which often inflicts physical or
psychological harm upon the unsuspecting and
hopeful child.
Child sexual abuse typically involves exploiting a child for sexual
arousal or gratification, often through coercive means. According to a national
study by the Ministry of Women and Child Development, sexual abuse encompasses acts such as touching a child's private parts or
exposing them to indecent activities, including
1 Women and crime law
capturing nude photographs. However, the gravity
of the situation remains
underreported, with many cases going unacknowledged.
Child Sexual Abuse in India
Underreporting persists due to the societal stigma attached to these cases. Following
the 2012 Delhi gang rape incident, a UNICEF study revealed alarming trends,
with one child being victimized in three rape cases, indicating a distressing
escalation.
Approximately 7,200 children,
including infants, fall victim to rape annually,
a deeply troubling statistic.
2Prior to 2012, the Indian Penal Code (IPC) addressed
individual sexual offenses against children through three sections: Rape
(Section 376), outraging modesty (Section 354), and unnatural acts, including anal sex and homosexuality (Section
377). Consequently, acts of aggressive sexual abuse, harassment, and
exploitation were not explicitly criminalized and thus often went unreported.
The increased attention to child
protection issues in the media and public discourse may be attributed to the
enactment of the Protection of Children from Sexual Offenses (POCSO) Act by the
Indian government. This legislation encompasses child sexual abuse, harassment,
and obscenity involving individuals under 18 years old, mandating special
courts for expediting investigations into these crimes.
Table 1: NCRB Data on Child
Rape Cases
|
Year All
India
2001 2113
|
2 Ncrb
data and child sexual report
|
The universal acknowledgment of the importance of safeguarding the
freedom, protection, and dignity of children underscores the necessity for laws
combating child sexual abuse. Protecting the rights of all children
is imperative for the holistic
development and
future prosperity of any nation. Fundamental rights such as access to
food, life, health, education, and dignity are paramount. Recognizing the
profound and enduring psychological effects of child sexual abuse, including
diminished confidence and lifelong trauma, underscores the urgency of robust
legal measures for safeguarding children.
Constitution of India
The Constitution of India prioritizes the status and welfare of children,
demonstrating the conscientious efforts of its framers to safeguard their
rights. This commitment is evident in several provisions of the Constitution.
Article 15, established to counteract discrimination, notably underscores the
protection of children. Provisions such as Article 14, 15, 15(3), 19(1), 21,
21(A), 23, 24, and 39, pertaining to principles of equality, the right to life,
personal liberty, and protection against exploitation, further reinforce the framework
for safeguarding children's rights.
Principles of Child Centric
Policies and Laws:-
The establishment of the National
Commission for Protection of Child Rights aimed to develop and implement policies geared
towards safeguarding children's rights and meeting their fundamental needs. Key principles underscored in child policies prioritize
decentralization, flexibility, and the institutional framework, ensuring
comprehensive coverage and service provision tailored to children's requirements.
This involves empowering Gram Panchayats for effective implementation.
Institutional frameworks have been established at various levels, including
state, district, block, and village levels, to safeguard children's rights to
health, nutrition, education, and freedom. Additionally, efforts to streamline the process of delivering justice
to children have been
initiated, including the development of specialized legal codes at the state
level, the training of personnel on child rights and their inherent dignity,
privacy, and security.
National Policies and Legislations Addressing Child Rights
The 3Indian Constitution's Fundamental Rights and Directive Principles form the basis for child rights, guiding the
formulation of policies and legislation at the national level. These measures
address various aspects concerning children, including protection against child
trafficking, child marriage, child labour, access to education, and sexual
offenses. Numerous constitutional provisions and national policies have been
established to uphold the commitment to child rights.
In alignment with the country's child protection strategies, India has
enacted legislation specifically targeting
child sexual abuse. The Child Protection Bill, passed
by Parliament on 22 May 2011, addresses issues related to child sexual abuse.
Government regulations under
this Act were announced in November 2012,
with the law poised for
implementation. Prior to the enactment of the Protection of Children Offenses (POCSO)
Act, most sexual offenses fell under the Indian Penal Code (IPC) However, this law did not
comprehensively address all forms of sexual offenses against children and
treated victims uniformly regardless of age.
Child sexual abuse can now be prosecuted under specific sections
of the Indian Penal Code,
including Section 375 (Rape), Section 354 (Outraging the modesty of a woman),
and Section 377 (Unnatural offenses). Additionally, state-wise data reveals
3 Child Rights and fundamental status
|
to the
modesty of children
across the country's
top five states.
in assault insults
|
2.7
|
|
12226
|
|
India
|
|
5.5
|
|
517
|
|
Kerala
|
POCSO Act 2012:
The new Act introduces various offenses for which individuals can be
prosecuted, defining a child as anyone under the age of 18 based on biological
age without consideration for mental age issues.
A case filed in the Supreme Court highlights this concern, involving a woman
of biological age 40 but mental age 6 who was allegedly raped. The victim's advocate
argues that failure to assess mental age undermines the statute's entire
objective. The Supreme Court has postponed its decision on whether the 42012
law encompasses mental age in its definition or solely relies on biological age.
In addition to peon-vaginal penetration, the 2012 Act recognizes other
forms of infiltration and criminalizes immoral conduct against children.
Regarding pornography, the law also prohibits the viewing or possession of
child pornography and criminalizes the promotion of sexual exploitation of
children. Furthermore, it introduces practical improvements to simplify the challenging process
of child trials in
India. However, criticism has been directed at the law for criminalizing
homosexual acts between individuals under 18, unlike the 2001 bill, which did
not penalize such acts if one or both partners were over 16.
The 2012 Act also addresses the prevention of re-abuse of children by the judiciary, advocating for on-camera hearings
in special courts
and child-friendly identification procedures to prevent
disclosure. During proceedings, a child's parent or another
4 Posco Act – 2012
Indian journal on Posco Act and women welfare familiar individual may provide
support, and the involvement of translators, special educators, or other experts
is facilitated. Moreover,
the legislation mandates
that cases of child sexual
abuse must be resolved within one year of being filed, ensuring swift resolution.
Under this law, all children
under 18 are protected from sexual abuse,
harassment, and obscenity,
with the severity of punishment determined by the gravity of the offense,
ranging from simple measures to more severe penalties.
|
State
|
Number of cases
2019
|
Rate
|
|
Assam
|
1519
|
12.8
|
|
West Bengal
|
706
|
2.4
|
|
Rajasthan
|
60
|
0.2
|
|
Haryana
|
56
|
0.6
|
|
Telengana
|
32
|
0.3
|
|
India
|
2488
|
7
|
|
State
|
|
|
||
|
Number of cases
|
Rate
|
|||
|
5Uttar Pradesh
|
4954
|
5.6
|
||
|
Maharashtra
|
4815
|
12.7
|
||
|
Madhya Pradesh
|
4717
|
15.7
|
||
|
West Bengal
|
2132
|
7.3
|
||
|
Odisha
|
1928
|
13.7
|
||
|
India
|
36022
|
8.1
|
||
Child Protection and National
Human Rights Commission
The National Human Rights Commission (NHRC) stands as a beacon of India's
commitment to advancing and safeguarding human rights. It exhibits particular
concern regarding juvenile offenders and vulnerable children in need of care
and protection. The NHRC's legal department addresses complaints, while its
policy studies, programs, and projects oversee
the implementation of relevant laws nationally
and advocate for the effective integration of international standards to
bolster the functioning of the juvenile justice system.
Child Protection:
As per the 2011 census, India's population under the age of eighteen
exceeded 440 million, constituting 37 percent of the total populace. Among them, children
aged 0–6 make up 14 percent,
those aged 7–14 account for 17 percent, and those aged 15–17
5
Human Rights commission and Juvenal justice
constitute 6% . The majority
of India's population is vulnerable and reliant on others.
Hence, a comprehensive approach, involving children as partners in national
development, is6 imperative. Safeguarding children from violence,
abuse, malnutrition, and ensuring
their holistic development is crucial, as the nation's
future security hinges on protecting their rights.
According to the Ministry of Women and Child Development (MWCD), 170
million children, or 40% of the population, face adversity in India. They
endure malnutrition and exploitation, often living on the streets or pavements.
Efforts are underway to secure children's rights to food, life, and liberty
through initiatives like the Integrated Child Development Services (ICDS). A
MWCD study from 2007 reveals that 53 percent
of children have experienced sexual abuse, underscoring the challenge of child
protection. Additionally, India's 2011 census highlights a sex ratio of 914 for
children aged 0–6, indicating ongoing gender-based discrimination, with many
girls being killed before or after birth.
The prevalence of child brides in India stands at approximately 24
million, representing 40 percent of global child marriages. Child marriage
subjects’ girls to early pregnancies, often resulting in maternal mortality. It infringes upon girls' rights to education and health and
constitutes a form of sexual abuse.
6
Ministry of affair and child development
Child Pornography
7Sexuality is a divisive phenomenon in Indian society and is
often associated with values. Child pornography is a subcategory of pornography
in which images of children and sexually explicit sounds are depicted for the purpose
of arousing sexual desire in a person or viewer. Such departments regularly release violent videos and feature
children and teenagers suffering from watching these kids record the best parts
of the video. After such an industry, take photos
of the child naked and take photos of the child doing sexual
activity and earn money from those crying photos of the
child by selling these photos on the site. Today,
thanks to the advancement of technology and the widespread use of smartphones,
we can easily find all these types of videos on the internet and in the market.
At some point the child needs to be forced into these types of activities for
many reasons. In this article the researcher tries to find legal reasons
and laws regarding child pornography in India. 8The researcher also
discusses judicial testimony and the legal
response to child pornography.
Today, child pornography is considered a serious crime by many
organizations. With the advancement of technology, the problem of child abuse
is becoming more serious
and harmful than ever. The consequences for child victims
are serious, and many will suffer in different ways for years to
come. It is common for children who are abused and depicted in pornography to
experience trauma and guilt. Additionally, pornography-related crimes are
directly related to sexual violence against children.
Although some pornography depicts the sexual abuse of children,
recording, sharing and viewing such abuse increases the number of victims of child abuse.
The trauma is compounded by the knowledge that the abuse
was recorded, validated, and praised by others. The problem of child abuse is
included in Article
of the United Nations Convention on the Rights
of the Child (CRC) as child abuse
and children's rights. Subject to the provisions of this Convention, all
Parties to this Convention shall combat sexual violence against children and
the exploitation of all children. Sweden ratified the convention and agreed to
take measures to eliminate
7
Nlu journal
8
Chat Gpt for re-arrangement of lines
gender-based violence against children. But it is not clear exactly how
this should be done, and there are many factors that influence each country's
decision on how to solve this problem.
Since possession of child pornography is not explicitly punishable, countries can choose whether to criminalize
possession. 9According to the
National Capacity Assessment Report, 90% of men and 80% of women interviewed state that they have had an
experience (pornographic video) at some point in their lives. .
Nearly 30% of men and 17% of women said they first 10experienced it at a young age. Just as there is no literature on the psychological effects of child
pornography, there is also no literature on the effects of
exposure to harmful substances such as pornography. Although promiscuity often
has negative connotations, some authors have explored its possible
consequences. For example, in the catharsis hypothesis, society is willing to
'sacrifice' a few children and 'use' them for the benefit of the many; He said
that commercial pornography has no real effect on childless children, but
instead has a positive and constructive effect by putting them in a normal
state of mind.
Kutchinsky's research on the effects
of pornography in Denmark showed this, as well
as the increase in pornography. Police said there was a significant decrease in
sexual activity, including child abuse. But Kutchinsky also notes that
"participation in child sexual abuse is not a desirable goal for many
child molesters, but rather becomes a common but unattainable catalyst for
sex."
Methodology
The methodology is didactic in nature. The researcher used both primary
and secondary data sources.
In this research, laws, court notifications and various articles and literature regarding child
abuse were used. The nature of child pornography
9
Indian Convention and acts
10
Child commission and welfare report
The crime of child abuse is not a single crime, but a series of crimes
with serious consequences. It probably starts with child abuse who doesn't
understand what's happening to them, and even if they do, it doesn't do much
good. This violence is then recorded and distributed to some terrible
people, who are more than happy to see these kids suffer from using it and
causing them to do it themselves. They even manage to do this, there is so much
crime.
A child is a person
who is just at the beginning of his life and has many years
ahead of him, but if he
becomes a victim of a 11crime such as child sexuality, it becomes
very difficult for that child to live normally. Such things will leave a mark
on the mind of such a child. The expansion of the Internet and modern digital
technology has coincided with the explosion of the child pornography market.
Child pornography is easily accessible through almost any Internet technology,
including social media, file- sharing sites, photo-sharing sites, gaming
devices, and mobile applications. In addition to selling, sharing,
and trading videos, perpetrators of child pornography may connect online and offline to share their interests,
desires, and experiences with child exploitation.
What is Child
Pornography?
12It is a representation, in the form of audio,
video, or written
text, of a child engaging in or having participated in a
real or simulated sexual activity in a variety of forms, including electronic,
digital, and optical. This also includes the use of minors for sexual purposes.
This may also be where images featured were shot, edited or modified for
display that a minor engaged in sexual activity. There is nothing but child
abuse and exploitation of children engaging in activities that endanger their
health and harm their health and mental health.
11
https://unesdoc.unesco.org/ark:/48223/pf0000114743
[1]
The UN Convention on the Rights
of the Child defines child
pornography as any representation of a child engaging in
real or simulated sexual acts or sexual representations for primarily sexual
purposes.
[2] The
video13 contains images of a child,
as stated in the definition of pedophile. A pedophile is usually a man (and in some
cases a woman) who imposes his sexual desires on a child
[3]. Pedophilia consists of words used to describe sexual desire, which
mostly includes an obsession with having sex with children. Such situations are
a complete rejection of the healthy sexuality that exists between
adults. [4] According to Article 9 of the 2001 Cybercrime Convention,
child pornography is defined as “pornographic material that clearly depicts a
minor engaging in sexual activity and a minor engaging in sexual activity.”
“Children are very sensitive and weak-minded, and it is difficult for them to return to the bad things of the modern
technological age. Social media is an interesting site where children often
fall into traps or meet people seeking children for sexual pleasure. This makes
it easier for podophile(s) to target and brainwash innocent children, leading
to serious crimes such as child pornography and child trafficking.
Legal Aspect
&Judicial provision
Protection of Children from Sexual Offenses (POCSO) Act, 2012 This Act
has been enacted to protect children from sexual harassment, gender-based
violence and scandalous crimes and also provide strong laws to protect the
interests of the child at every stage of his life.
court. In the preparation of this law, it is aimed to prioritize an easy-to-use system for providing
information about children, recording evidence, conducting investigations and
deciding 14criminal cases through special courts
. The new law requires more crimes for suspects to be punished. It
recognizes forms of penetration other than artificial insemination and punishes
acts of child prostitution.
13
University of Edinburg research journal
onomy/term/child-pornographyCved=2ahUKEwiAjJfutdKFAxWy-
jgGHWeCD5g4ChAWeg?IAxABCusg=AOvVaw3JsEcnlK7yXZb_ZB-r3fMv
Sexual violence: inserting the penis/object/any part of the body into the
child's penis/urethra/anus/mouth or asking the child to do this to himself or
another man. Sexual abuse: 15When someone touches a child or causes a child to touch themselves or another person, sexual
abuse: making sexual comments, giving sexual signals/noises, frequent
supervision, flashing, etc.
The Indian 16Parliament made amendments to the Protection of
Children from Sexual Offenses Act, 2012 in August 2019. The new bill aims to
improve the punishment of minors for sexual crimes, including the death
penalty. In order to combat child pornography, the bill stipulates that those
who use children for sex will be punished with
five years' imprisonment and a fine. However, for second or subsequent offenses, the penalty will increase to
seven years and a fine. House Bill
defines child pornography as any depiction
of sexually explicit
conduct involving a child, including photographs, videos,
images, or computer-generated images that cannot be identified with a child.
Information Technology Act, 2000 The Information Technology Act, 2000
makes it illegal to publish or transmit obscene material by electronic means.
The original law did not contain
specific provisions regarding
child pornography; all pornography cases were handled under Article 67 of the
previous law. However, it is important to note that the IT Act 2000 was an
important step from the first commandment. All forms of pornography, both
online and offline, are punishable under the Indian Penal Code, 1860 and the
Representation of Women (Prohibition) Act, 1986. Publishing or broadcasting
obscene materials is punishable by imprisonment from two to five years. A
maximum of five Lakh rupees and on conviction may be punished with imprisonment
for five years and a fine of up to ten thousand rupees. Later amendments to Law No. of 2000, made in
2008, specifically penalize pornography. It is
a crime to publish or transmit material
depicting children in sexual activity. It is also prohibited to seek, collect,
distribute and process sexual material featuring children.
15 Indian Express.com
16 Indian women C child welfare.com
Engaging in online relationships with children, facilitating online child
abuse, and electronically recording child sexual abuse are criminal offenses.
This law provides for years of imprisonment and a fine not exceeding five
thousand rupees; The second offense is punishable by seven years' imprisonment
and a fine not exceeding ten thousand rupees. 17A violation under
this law is illegal and cognizable. Article 67C sets out the rules regarding data sharing and storage. An amendment was also made to
Article 79; It indicates the situation even if liability is not involved
in mediation. Even after clear laws against child
pornography are in place, reducing child pornography is a difficult task.
Modern technology is not advanced enough to remove child pornography from such
a large area. Because the issue of pornography needs to be seen in the context
of the right to freedom of expression and the duty to differentiate in digital
media. 18Although the law has been made based on various laws, the
main problem in its implementation is a serious problem because in the real
world the implementation of
may be possible due to the strong approach of the government, but when it
comes to Technology, the government seems to be doing it. they are less
concerned and say, 'These institutions are not even well-funded, so a serious
approach is needed
to solve the problem.
Although the law has been enacted, its implementation is viewed with suspicion. For example, Section 15 of the POCSO Act,
2012, which regulates the preservation of child pornography for commercial
purposes, has not been registered in the Supreme Court or Supreme Court so far.
In other words, managers who deal with the application or problem appear to be
ineffective in practice. Due to the abundance of evidence in these cases, the
judiciary tried to solve the problem of showing child pornography in 1 when the
problem of showing child pornography was clearly seen, but the real problem
is solving the problem related
to it. Most of the time people
tend
17 Ipc
18 Posco and women welfare act
to avoid the problem. There
are very few cases dealing
with this issue
at the High Court and Supreme Court level. Some of these are discussed
below:
A.P. In the State vs. Mangali Yadagiri case, it was before the
Hyderabad High Court in which a 14-year-old SC/ST girl was raped by some
persons and subsequently arrested. He was even threatened that if he was
exposed, the perpetrators would make it public, so he was not allowed to file a
complaint for a while. Here, the Supreme Court was asked whether the case would
be tried in a special POCSO court or SC/ST court; here the court ordered that
the case be tried in a special POCSO court P. Shanmugavel Raj v. State and Ors. This was a retrial of a criminal
case seeking a continuation of the rape of a 13-year-old girl. Here the matter
was pending in the sessions court, but since the law provides
for the appointment of a special
court for the matter, the Madras High Court decided
to hold the hearing in this court. The special prosecutor's question was also
directed to the court that approved the previous decision.
Hector FirdausKothavala v. State
of Maharashtra concerned anticipatory bail for an offense related to the
functioning of POCSO. Here, the father of two children was raising them under
very difficult conditions. The children, ages 4 and 6, didn't quite understand what he wasn't
saying, but his wife saw the wrongdoing and a lawsuit
was filed. The suspect was released on bail determined by the court.
In the case of Shashi and Ors. v. In the State of Karnataka, there was
news that some friends of the victim's father came to their house and asked the
victim to collect firewood in the Forest, where
the perpetrators forcibly
raped her and also made videos
of the betrayal. They were charged under the POSCO and IT Acts and a case was
registered, but the Karnataka High Court granted
them bail and the final
verdict is still pending.
Ishan v. State of M.P. The truth is that the victim went to her friend's house
and there her friend's
brother raped her and filmed her. His family said they objected to him.
Since the perpetrator was a minor, the case went to JJB and then M.P. A
petition for review was submitted to the Supreme
Court. Here the suspect was released on parole.
Article Information
POSCO ACT BY:- RITTIK RAMAN
Authors: RITTIK RAMAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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