THE PROTECTCTION OF CHILDREN FROM SEXUAL OFFENCES
Child sexual abuse laws in India have been enacted as part of the nation's child protection policies. The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill, 2011' regarding child sexual abuse on May 22, 2012 into Act. The rules formulated by the government in accordance with the law have also been notified on 14th November 2012 and the law has become ready for implementation. Fifty three percent of children in India face some form of child sexual abuse. The need for stringent law has been felt many times.
The new Act provides for a variety of offenses under which an accused can be punished. It recognizes forms of penetration other than peno-vaginal penetration and criminalizes acts of immodesty against children too. The legislators tried to draft a gender-neutral Act, but failed, using the pronoun 'he' in the description of various offenses. With respect to pornography, the Act criminalizes even watching or collection of pornographic content involving children. The Act makes abetment of child sexual abuse an offense. It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The Act has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18. The 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years.
Highlights of the 'Protection of Children from Sexual Offences Act 2012:
- The Act defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.
- This is the first time that an Act has listed aspects of touch as well as non touch behaviour (eg: photographing a child in a obscene manner) under the ambit of sexual offences.
- The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences
- The attempt to commit an offence under the Act has also been made liable for punishment for upto 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.
- The media has been barred from disclosing the identity of the child without the permission of the Special Court.
Before the Bill was passed, cases of child sexual abuse were dealt under the following sections under IPC:
- Section 375 that defines rape.
- Section 376 of the Indian Panel Code provides for the punishment of rape which shall not be less than seven years but which may extend to ten years, unless the women raped is his own wife and is not under twelve years of age in which case, he shall be punished with imprisonment for a term which may extend to two years or with fine or both. When the girl is under 12 years or where the rapist is a person in authority (in a hospital, children's home, a police station etc.), the punishment is greater.
- The other IPC provisions that are invoked is relating to unnatural practices is Section 377 This is generally invoked when boy children are sexually abused. Although forcible sex with a boy is an act of rape, the rape law of the country under IPC does not cover it.
- Outraging the Modesty of a woman or a girl is dealt with in Section 354
- For insulting the modesty of woman is in Section 509
- Obscenity and pornography are dealt under the Young Persons (Harmful Publications) Act , 1956. .A young person means a person under the age of 20 years. It is an offence to sell, let, hire, distribute or publicly exhibit harmful publications.
- Under Section 67 of the Information Technology Act, 2000, publication and transmission of pornography through the internet is an offence.
THE PROTECTCTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012
[No. 32 OF 2012]
[19th June, 2012]
An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trail of such offences and for matters connected therewith or incidental thereto.
WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
AND WHEREAS, it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
AND WHEREAS, it is imperative that the law operates in a manner that the best interest and well-being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
AND WHEREAS, the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-
- The inducement or coercion of the a child to engage in any unlawful sexual activity;
- The exploitative use of children in prostitution or other unlawful sexual practices;
- The exploitative use of children in pornographic performances and materials;
AND WHEREAS, sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.
PROTECTCTION OF CHILDREN FROM SEXUAL OFFENCES
SPECIAL COURT IN DISTRICT RUDRAPRAYAG
Sri. Ashish Naithani
(District & Sessions Judge)