B.A.LL.B.

(HONS)
Session-2019-2020
Name of the ASHITA BARVE
student:
Semester- IV
Enroll No.- D L 1 8 0 1 4 5 9
University Exam Roll No.- 80440141
Status- Regular
Assignment Subject- Offences Against Child and Juvenile

Submitted to : Mrs. Submitted by:

Priyamvada Tiwari Name Ashita Barve
Date 07-05-2020 Semester IV

Marks Obtained ______

 ACKNOWLEDGEMENT

I have put in efforts in this assignment. However, it would not have been
possible without the kind support and help of many individuals and
organizations. I would like extent my sincere thanks to all of them.

I thank my God for providing me with everything that I required in

completing this assignment.

I am highly indebted to the Teacher in Charge

Mrs. Priyamvada Tiwari for guidance and constant supervision as well
as for providing necessary information regarding the assignment
and also for her support in completing the assignment.

I would like to express my gratitude towards my parents for their kind

co-operation and encouragement which helped me in the completion of this
assignment.

My hearty thanks and appreciations go to my classmates in developing

the assignment and to the people who have willingly helped me out with
their abilities.

Student Name: Ashita Barve

 CERTIFICATE OF AUTHENTICITY

This is to certify that ASHITA BARVE student of BALLB (hons.)

has successfully completed the below mentioned assignment under
the guidance of Mrs. Priyamvada Tiwari during the year 2019-2020.

Student Name- Ashita Barve

 DECLARATION

I hereby declare that the project work submitted for the “Offences Against
Child and Juvenile”; is my original work and the project has not formed the
basis for the award of any degree, associate ship, fellowship or any other similar
titles.

Name of the Student: Ashita Barve

Date: 07/05/2020
 INDEX

SR.NO. CONTENTS PAGE NO.

1. Abstract 1

2. Introduction 2-3

3. History of the Law on 3

Child Sexual Abuse

4. POCSO act 3-8

5. Conclusion 8-9
 ABSTRACT

The study comes at a crucial time when key actors as well as the general public would like to
know more about how effective is the implementation of the main law protecting children from
sexual abuse. The study further confirms that a large majority of perpetrators of sexual offences
against children are known to the victim, and that a large majority of the victims are girls. In
an interesting development, the study analyses the low incidence of reported cases of sexual
abuse against boys. Far from being uncommon, social attitudes may result in sexual offences
against boys not being perceived and treated with the seriousness it deserves. In this context, it
is imperative to conduct a careful and continuous analysis of the obstacles to the reporting of
sexual abuse by children as well as of the implications of compulsory reporting in light of their
best interest. It is essential to understand the specific obstacles boys and girls may face when
reporting sexual abuse from people known to them and the tremendous social stigma and
feelings of shame and guilt that most of the victims experience. The lack of required support
to the victims, once a case is reported, in terms of legal representation and appointment of a
support person raises important questions about the responsiveness of the justice system in
sensitive sexual abuse cases.

KEYWORDS

Child, offences, abuse, implementation, sexual.

RESEARCH METHODOLOGY

This paper depends on the strategy for study and research dependent on the gathering and
investigation of information.
 INTRODUCTION

The POCSO Act was a response to both domestic and international events. It is therefore
important to examine the triggers to and the process of enacting the POCSO Act. Pursuant to
a resolution of the General Assembly, the Secretary-General of the United Nations appointed
an Independent Expert to conduct an in-depth global study on Violence Against Children. The
study team visited several countries, including India, and the study was disseminated in 2006.
It recommended “a national strategy, policy or plan of action on violence against children”,
and that “national laws… should comply with international human rights”.

The Ministry of Women and Child Development, Government of India, initiated the process to
draft a law for prevention of offences against children. At a meeting called by the Ministry,
NGOs led by RAHI, HAQ and Butterflies suggested that it was important to have a white paper
on offences against children in India before jumping into designing the law. In response to this
suggestion, the Ministry undertook an all India level empirical study on child abuse in 2006.
This study was also meant to complement the UN Secretary General’s Global Study on
Violence against Children, 2006. The report, titled “Study on Child Abuse: India 2007”,
revealed stunning facts on the extent and magnitude of the problem, especially child sexual
abuse, such as:

ƒ 53.22% children reported one or more forms of sexual abuse.

ƒ 20.9% reported facing severe forms of sexual abuse. Study on Child Abuse: India 2007
revealed:

• 53.22% children reported one or more forms of sexual abuse.

• 20.9% reported facing severe forms of sexual abuse.

• Children on street, children at work and children in institutional care reported highest
incidence of sexual assault.

• 50% abusers are persons known to children or in a position of trust or responsibility.

ƒ Children on street, children at work and children in institutional care reported highest
incidence of sexual assault.

ƒ 50% abusers are persons known to children or in a position of trust or responsibility. The
study also highlighted that sexual crimes against children seldom get reported. And when
children muster the courage to report their abuse, they are disbelieved or told to forget the
incident. The process to enact the legislation that finally became the POCSO Act started in
2009, when the Ministry of Women and Child Development circulated the draft Offences
against Children Bill among stakeholders.

History of the Law on Child Sexual Abuse

The substantive law was very inadequate to deal with cases of child sexual abuse. The diverse
types of sexual offences committed against children were not finely calibrated. Sections 375
and 376 (2) of the IPC were invoked in cases of penetrative sexual abuse of a girl, and Section
377 of IPC when the victim was a boy. If no penetration had taken place, sexual crimes were
reported under Sections 354 and 509 of the IPC, when the victim was a girl, but there was no
such corresponding provision for a boy. The Sakshi case 1 in the Supreme Court highlighted the
IPC’s inadequacy to deal with child sexual abuse. It also attempted to widen the meaning of
“rape” to provide justice to a child victim. Through a Public Interest Litigation, Sakshi, an
NGO functioning from Delhi, drew the attention of the court to the “existing Sections 375 /
376 of the Indian Penal Code and various other sections, and it was pointed out that the
interpretation being placed by courts on these sections cannot be said to be in tune with the
current state of affairs existing in the society, particularly in the matter of sexual abuse of
children.” The petitioner, Sakshi, pleaded that the term “‘sexual intercourse’ as contained in
Section 375 of the Indian Penal Code” should “include all forms of penetration such as
penile/vaginal penetration, penile/ oral penetration, penile/anal penetration, finger/vaginal and
finger/anal penetration and object/vaginal penetration.” Though the court held that the
definition of ‘rape’ cannot be altered “by a process of judicial interpretation”, its intervention
led to the 172nd Report of the Law Commission of India, Review of Rape Law. The Law
Commission of India invited and took into account suggestions from Sakshi and other
organisations. The Supreme Court stated, “Keeping in view the rise in crime and the growing
menace of sexual abuse of the child, we consider it appropriate to once again request the Law
Commission to examine the issues submitted by the petitioners and examine the feasibility of
making recommendations for amendment of the Indian Penal Code or deal with the same in
any other manner so as to plug the loopholes.”

POCSO ACT

1
Sakshi vs. Union of India: (1999) 6 SCC 591.
Salient Features of the Pocso Act2

• Children are defined as persons below the age of 18 years.

• The Act is gender neutral, i.e., it recognises that the victims and the perpetrators of the offence
can be male, female or third gender.

• It raises the age of sexual consent from 16 years to 18 years, by making all sexual activity
with a minor a statutory sexual offence.

• The POCSO Act broadens the understanding of rape (penetrative sexual assault) from
penilevaginal penetration to penetration by specific body parts or of objects into specified parts
of the child’s body, or making the child to so penetrate. It also penalises the person who may
not engage in the penetration but may cause the penetration of a child by another person or
cause the child to penetrate another.

• The Act recognises that sexual abuse may involve or may not involve bodily contact; it
categorises these offence as ‘sexual assault’ and ‘sexual harassment’.

• Under the Act, penetrative sexual assault and sexual assault becomes aggravated and is
punished more severely when committed - − by specified persons such as a police officer,
member of the armed forces or security forces; public servant; management or staff of place of
custody or care and protection, hospital, educational or religious institution, upon a child
therein etc.; − in a specified manner using deadly weapons, fire, heated or corrosive substance;
by one or more persons etc.; − in specified situations such as offence committed more than
once or repeatedly; on a child with physical or mental disability or resulting in physical or
mental disability; on a child below 12 years of age, etc.

• The Act lays down special procedures to be followed by the investigating agency when
recording the child’s statement and by the Special Court during the child’s deposition.

• Reporting to the police about commission of a sexual offence is mandatory under the Act for
everyone, and the legislation includes a penal provision for non-reporting.

• The Act contains provisions to ensure that the identity of a child against whom a sexual
offence is committed is not disclosed by media.

2
PIB Delhi, Cabinet approves Amendment in the Protection of Children from Sexual Offences (POCSO) Act,
2012, 28 DEC 2018 3:57PM.
• It provides for designation of Special Courts and appointment of Special Public Prosecutors
to deal with offences listed under the Act.

• Children are to be provided other special support in the form of translators, interpreters,
special educators, experts, support persons and NGOs during the pre-trial stage and trial stage.
• Children are entitled to legal representation by a lawyer of their choice or free legal aid.

• The Act also contains rehabilitative measures, such as compensation for the child and
involvement of the Child Welfare Committee.

Sexual offences under POCSO ACT3

 Penetrative Sexual Assault [Ss. 3 & 4]

 Aggravated Penetrative Sexual Assault [Ss. 5 & 6]
 Sexual Assault [Ss. 7 & 8]
 Aggravated Sexual Assault [Ss. 9 & 10]
 Sexual Harassment [Ss. 11 & 12]
 Offences relating to Child Pornography [Ss. 13, 14 & 15]

Sentencing4

The punishment / sentence depends upon the type of sexual offence committed. Certain sexual
offences have a minimum and maximum term of imprisonment stipulated under the law,
whereas others have only a maximum term stipulated. For example, the punishment for
penetrative sexual assault, under Section 4, is imprisonment “for a term which shall not be less
than seven years but which may extend to imprisonment for life”.

The punishment for sexual harassment, under Section 12, is imprisonment “for a term which
may extend to three years”. It is for the Special Court to determine the term of imprisonment
within this range, but has no discretion to reduce the term below the minimum term of
imprisonment stipulated under the law. Under Sections 4, 6, 8, 10, 12, 14 and 15 the offender
is also liable to pay fine. The Special Court has the powers of a Sessions Court, so there is no
limit to the amount of fine it may order the offender to pay, and a portion or whole of the fine
may be directed to be paid as compensation to the person who has suffered loss or injury due
to the offence.

3
PRS Legislative Research, POCSO Bill, 2019, 1st August, 2019.
4
Economic Times, sentencing under POCSO act, 2nd June, 2019.
Section 42 makes it clear that for an act or omission that constitutes an offence under the
POCSO Act as well as under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376,
376A, 376B, 376C, 376D, 376E or 509 of IPC, the punishment awarded shall be that which is
greater in degree. Abetment of an offence is punishable under the POCSO Act [Sections 16 &
17]. It mentions the circumstances under which a person is said to abet an offence, as also its
punishment-- “if the act abetted is committed in consequence of the abetment, shall be punished
with punishment provided for that offence.” Attempt to commit an offence under the POCSO
Act is “punished with imprisonment of any description provided for the offence, for a term
which may extend to one-half of the imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that offence or with fine or with both” [Section
18]. For “calculating fractions of terms of punishment, imprisonment for life shall be reckoned
as equivalent to imprisonment for twenty years” [Section 57 of IPC].

Other Offences under the POCSO Act 5

ƒ Failure of all adults to report the commission of an offence under the Act or failure of the
police to record such an offence [Section 21 (1)]. The punishment is more severe if such non-
reportage is by a person in-charge of a company or institution in a case alleging commission
of offence by “a subordinate under his control” [Section 21 (2)].

ƒ Personnel of media, hotel, lodge, hospital, clubs, studios or photographic facility have been
specifically obligated to inform the police about “any material or object which is sexually
exploitative of the child (including pornographic, sexually related or making obscene
representation of a child or children) in any medium” that they come across [Section 20].
Failure to do so in an offence under the Act [Section 21 (1)].

ƒ Making false complaint or providing false information regarding commission of an offence

under Sections 3, 5, 7 and 9 “solely with the intention to humiliate, extort or threaten or
defame,” except when done by a child is also an offence [Section 22].

ƒ Reporting or commenting “on any child from any form of media or studio or photographic
facilities” that may affect such child’s reputation or infringe upon such child’s privacy
[Sections 23 (1), (3) and (4)].

5
Kriti Sharma, stringency to POCSO act, 4th sept. 2019.
ƒ Disclosing the identity of a child (name, address, photograph, family details, school,
neighbourhood or any other particulars) by any media [Sections 23 (2), (3) and (4)].

Cognizable and Bailable

While providing for a whole range of offences, the POCSO Act does not specify whether the
offences are cognizable or not, or bailable or not. Section 19 of the POCSO Act and Rule 4 (2)
(a) of the POCSO Rules imply that the sexual offences are cognizable as the police receiving
information of commission of such offence is required to record and register a First Information
Report (FIR), per the provisions of Section 154 of CrPC, and furnish a copy of it, free of cost,
to the person making such report. To determine whether a sexual offence is bailable or non-
bailable, it is necessary to see the First Schedule of CrPC (Part II - Classification of Offences
Against Other Laws):

ƒ Whenever the punishment is less than 3 years of imprisonment, the offence is bailable.

ƒ Any term of imprisonment equal to or more than 3 years, the offence is non-bailable. All
sexual offences under the POCSO Act are punishable with imprisonment up to 3 years or more
and are, therefore, non-bailable.

Understanding the Magnitude of the Problem and Data Challenges

 In the last decade (2005 to 2015), while total crimes against children saw an increase
of 52%, cases of ‘child rape’ and ‘penetrative sexual assault’, including ‘aggravated
penetrative sexual assault’, increased by 40%.
 There is no data on child victims with disability and a category of transgenders is yet
to find place in gender disaggregated crime records.
 There is no resource directory available in public domain on specialised services meant
to be provided to the child victim under the POCSO Act, viz., translators and
interpreters for different languages and dialects; sign language interpreters; special
educators; counsellors; social workers; supports persons, including governmental
agencies/ non-governmental organisations.
 Data discrepancies are everywhere; figures collected through RTI from the police and
courts and that collected from courts’ websites do not match.

Recommendation
Given the significantly high number of cases of children aged 16 to 18 years in romantic
relationship coming into the criminal justice system, there is an urgent need for the Ministry of
Women and Child Development to facilitate discussions on the issue of age of sexual consent.

A large number of cases where the accused is known to the child have ended in acquittal due
to the child turning hostile. It is imperative for a robust Victim Protection Programme to be
initiated and implemented to enable the child to deal with the pressure to turn hostile. Providing
such child with a support person will also be a step towards achieving this end.

It should be mandatory for police and the Special Courts to inform children and their families
about their right to legal representation and provision of free legal aid, and record the same in
their documents, such as, diary entries and daily orders.

Sexual offences against children cannot be curtailed by seeking increase in punishment;

instead, the focus should be on increasing the rate of conviction. This requires serious
investment in enhancing the investigation skills of the police and their sensitization as also
building the capacity of Special Courts and Special Public Prosecutors to innovate and move
away from the conventional methods of functioning so as to meet the objectives of a special
legislation like the POCSO Act.

CONCLUSION

The POCSO Act must be commended for expanding the scope of offences to be included under
child sexual abuse to more comprehensively address the issue. It also encourages a child-
enabling environment during the investigation and trial of such offences, which immensely
helps the victim. However, what is lacking is the methodical operationalisation and
implementation of the legislation to meet its objectives. As we cross the fifth year of the Act,
we hope that these gaps will be addressed and bridged. Of greater worry are certain provisions
in the POCSO Act, which do not adhere to the legislation’s goal and require re-appraisal. These
include: raising the age of consent to sexual activity, and the concept of mandatory reporting,
to name just two. It is important that debates among stakeholders are facilitated to draw out
more such issues, as also to strengthen the legislation. Successful prosecution is not the only
test to measure whether a child has attained justice. The concept of justice extends to providing
a child-friendly process through the special procedures, infrastructure and human resources
envisioned under the POCSO Act. The right of the child to freedom from all forms of violence,
issued by the Committee on the Rights of the Child. part of justice delivery, and is not limited
only to victim compensation, but rests on effective coordination with the juvenile justice
system. Justice is not onefold; the interest of a specific child requires to be identified, and her/
his needs fulfilled. The solution may not always lie within the criminal justice system; other
avenues also require to be explored. Precious little is being done towards preventing the entry
of children into the criminal justice system. Under the Constitution, it is the state’s duty to take
steps to prevent violence against children, including sexual violence. “Preventing violence in
one generation reduces the likelihood in the next.” To be effective, preventive programmes
should be integrated into the mainstream of community life. These should be initiated through
professionals working in child-related fields, and should be implemented with community
participation. This will also ensure a strong community support structure, more so for children
at risk.

BIBLIOGRAPY

Paras Diwan - Children & Legal Protection.

Savitri Goonesekar- Children Law and Justice.

O.P. Mishra- Law Relating to women & child.

PRS India: Ministry of Women and Child Development.

PIB Government of India, Ministry of Women and Child Development.