CHAPTER- 1

INTRODUCTION
 CHAPTER- 1

INTRODUCTION

“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

Child rights1, like human rights, come from the idea that all people have fundamental rights that
they are born with, and these rights are inalienable and inviolable. They cannot be taken away
because of a person’s gender, age, religion, race, ethnicity or other factors. It is recognized that
special protection must be given to children to ensure full, happy, and healthy development
without fear of harm or exploitation.

Everyone has a role to play in protecting children. Parents, schools, communities, police, courts,
medical professionals, voluntary organizations, child welfare groups, district child protection
units and other means are responsible for creating an ecosystem that will protect children and
help them live their childhood without fear.

Child sexual abuse is on the rise worldwide. The Soaring rates of juvenile delinquency are faced
by Worldand India is in top five countries. However, criminal law in India is not enough to
address such an important and serious issue in many respects. The Law Commission in its 172nd
Commission Report2 reviewed law after Sakshiv. U.O.I.3The case was reviewed by law with a
sexual offense. The commission had appealed for several amendments to the law to be
implemented in the matter. The IPC was amended several times by the 2013 Criminal Law
Amendment Bill after the Nirbhaya case.

1
Provided under Fundamental Rights enshrined in Constitution of India
2
[Link]
3
Sakshi v UOI, AIR 2004 SC 3566
There are 430 million children in India,4 including one in five children under the age of 18 in the
world. They have been facing big challenges since their birthday. Malnutrition, illiteracy,
kidnapping, forced labor, drugs, sexual abuse, pornography, etc. are not common among children
in India. Researchers are particularly concerned about the issue of child sexual abuse in India.5
Child sexual abuse usually involves health or psychological abuse with the child, who is usually
confident and optimistic about the child.

A person uses a child for sexual arousal or sexual gratification. According to a national study by
the Ministry of Women and Child Development,6 ‘sexual abuse’ is defined as taking a child to
her private parts or bringing a child into private areas and taking nude photos. However, this
statement does not reveal the real reality as most of the cases have not been reported due to
stigma in our society. A study conducted by UNICEF after the Delhi gang of 2012 found that
one child was involved in three cases of rape, and these incidents were increasing at an alarming
rate.7 About 7200 children, including infants, are raped every year, which is a matter of great
concern.8

Until 2012, single sexual offenses against children recognized by law were covered by three
sections of the Indian Penal Code (IPC): Rape (unauthorized sexual intercourse - Section 376),
violation of modesty (Section 354) and unnatural acts "unnatural sexual intercourse with any
male or female animal" (anal sex, homosexuality) 377). Consequently, aggressive sexual abuse,
harassment, and exploitation are not explicitly recognized as a crime and therefore not reported
(assuming they are reported). The growing activity on child protection issues in the media and
public discourse may be due to the enactment of the Protection of Children from Sexual Offenses
(POCSO) Act by the Government of India. The law covers child sexual abuse,

sexual harassment and obscenity (under the age of 18) and obliges special courts to expedite
investigations into these crimes.9

Table 1: NCRB Data on Child Rape Cases

4
The Planning Commission, Government of India’s 12th Report.
5
United Nations Children’s Fund, “The Situation of Children in India – a profile,” May 2011
6
Ministry of Women and Child Development, Government of India, “National Study on Child Abuse: India
2007,”2007
7
UNICEF, “UN in India condemns the gang rape of a student in New Delhi,” December 31, 2012
8
ibid
9
NCRB 2015
 Year All India

2001 2113

2005 4026

2010 5484

2012 8541

2013 12,363

2017 12,903

2018 14176

2019 14818

Established in 2007 as an independent body, the National Commission for the Protection of the
Rights of the Child, the Constitution of India and the U.N. Includes all such laws, policies and
[Link] compliance with the rights of the child specified in the Convention. A
commission has also been appointed to oversee the implementation of the POCSOAct.

1.1 Child Sexual Abuse in India

All civilized societies and nations of the world understand the importance of freedom, protection
and dignity of children.

Need of Laws to combat Child Sexual Abuse:

To protect the rights of all children is unanimous and believes that the future of any nation is
incomplete without protecting the rights of children. The future of any country lies in children,
so everyone should protect the rights of children. Right to food, life, health, education and
dignity are prominent among these rights. The need of laws for combating child sexual abuse lies
in the very fact, if children are protected the future of nation is protected. It is pertinent to note
that, the effects of child sexual abuse on the psychology of child is ever-lasting and it tends to
lower the confidence in the child and scars him or her for life and if such generation is future
face of a country then it would have negative effect on the country’s development as a whole be
it economic, social and at global level.

In the context of India, several schemes and provisions were enacted to protect the rights of
children. In which ICDS and ICPS are prominent. Along with this, the dignity of children has
been protected under the Juvenile Justice Act 2015 and POCSO.

1.1.1 Constitution of India

The Constitution of India gives a major place to the status and protection of children.
Constitution makers have been fully aware to protect the rights of children. This awareness is
reflected in many provisions of the Constitution. Article 15, which was created to prevent
discrimination, has given prominence to protection of children. Article 14, 15, 15 (3), 19 (1), 21,
21 (A), 23, 24, 39 for rights of equality, right to life, right to personal liberty and rights against
exploitation were provided.

1.1.2 Principles of Child Centric Policies and Laws:

The National Commission for Protection of Child Rights was formed to formulate and follow
policies on protecting the rights of children and fulfilling their basic needs. Five essential
management principles are emphasized prominently in child policies. This includes
decentralization, flexibility, and the process of institutional structure, coverage and providing
services by creating a policy guide according to the needs of children. Gram Panchayat have
been enabled for this. Institutional structure has been created at the state, district, block and
village level to protect the right to health, nutrition, education and freedom of children. Even
measures to simplify the process of providing justice to children have been considered. For this,
special codes have been created at the state level to develop codes centered on children in
jurisprudence, trained cadres on child rights and their dignity, privacy and security.
 1.1.3 National Policies and Legislations Addressing Child Rights:

The Fundamental Rights and Directive Principles of the Indian Constitution provide the
framework for child rights. Policies and Legislation have been formulated at the national level
for the rights of children against child trafficking, child marriage, child labor, education and
sexual offenses. Several constitutional provisions and national policies have been framed to
implement the commitment to child rights.

As part of the country's child protection policies, India has enacted laws on child sexual
[Link] Child Protection v. Child Protection Bill was passed by Parliament on 22 May 2011 as
a law relating to child sexual abuse.10 The rules laid down by the government under this Act
were also announced in November 2012 and the law is ready to come into force. POCSO Act,
most sexual offenses were under IPC 1860, but this does not apply to all types of sexual offenses
against children and its general law. It does not distinguish between adult and child victims.

“Child sexual abuse can be prosecuted under the following sections of Indian Penal Code”:

“[Link]. 375- Rape

I.P.C. Sec. 354- Outraging the modesty of a woman

I.P.C. Sec. 377- Unnatural offences”

Table 2: State wise data for Top 5 States in Sexual Assault/ insult to modesty of children11

State Number of cases 2019 Rate

Uttar Pradesh 2652 3

Maharashtra 2370 6.3

Madhya Pradesh 2106 6.8

Delhi UT 766 13.7

10
Parliament passes bill to protect children from sexual abuse". NDTV. May 22, 2012
11
NCRB Data
Kerala 517 5.5

India 12226 2.7

Table 3: State wise Data for top 5 States in Procuration of Minor Girls12

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

POCSO Act 2012:

The new Act establishes a number of offences for which a person can be prosecuted. A person
under the age of 18 is considered a child. It considers the child's biological age but ignores
mental age issues. A case has been filed in SC alleging that a woman of biological age 40 years
but mental age 6 years was raped. "Failure to evaluate the mental age will be an attack on the
entire objective of the statute," the victim's advocate claims. The Supreme Court has deferred its
decision in the issue, deciding whether the 2012 statute includes mental age in its definition or
whether simply biological age is included.

Additional than peno-vaginal infiltration, this Act of 2012 acknowledges other types of
infiltration and criminalizes immoral conduct against children. As far as pornography is

12
ibid
concerned, the law also criminalizes viewing or archiving child pornography.13 The law makes it
a crime to promote sexual exploitation of children.14 It also offers various practical
improvements,15 which significantly simplifies the difficult process of testing for children in
India. The law has been criticized for criminalizing homosexuality between two people under the
age of 18. The 2001 bill does not penalize homosexual acts if one or both partners are over the
age of 16.16

This Act of 2012, provides for the prevention of re-abuse of children by the judiciary, for the
conduct of on-camera hearings for special courts and for child-friendly identification without
disclosure. As a result, during the evidence, the child's parent or another known person may
appear and assist in the invitation of a translator, special educator, or other expert. Finally, the
legislation stipulates that a case of child sexual abuse must be settled within one year of the
charging date, ensuring that these matters are dealt with quickly.

All children under the age of eighteen are protected against sexual abuse, harassment, and
obscenity under the law. It provides the harshest punishment determined by the severity of the
crime. Penalties range from simple and harsh fines to imprisonment.

13
POCSO ACT 2012 Chapter 3
14
POCSO ACT 2012 Chapter 4
15
POCSO ACT 2012 Chapter 5,6,7
16
Good act, bad provision". The Hindu. 26 May 2012.
Figure 1: Punishments under POCSO
Table 4: State wise data for top 5 States in 2019 of POCSO Act, 201217

State Number of cases 2019 Rate

Uttar 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

1.1.4 Child Protection and National Human Rights Commission

The National Human Rights Commission (NHRC) is a symbol of India's concern for the
promotion and protection of human rights. Once implemented, it is concerned about the plight of
juvenile offenders and the plight of children in need of care and protection. The legal department
of the NHRC handles complaints; The NHRC's policy studies, programmes, and projects
monitor the execution of applicable legislation at the national level and advocate the effective
utilization of international approach to enhance the overall functioning of the juvenile justice
system.

1.1.5 Child Protection

According to the 2011 census, “the population of children under the age of eighteen in India was
more than 440 million, which is 37 percent of the total population of the country. In the age
group of 0–17 years, children aged 0–6 years constitute 14 percent of the total population of the
country and 17 percent of 7–14 years old.” The children in the age group 15-17 are 6 percent. In
the context of India, the bulk of the population is weak and dependent on others. Therefore, a

17
NCRB Data
holistic approach and participation is needed to make children a partner in nation development.
Protecting children from violence, abuse, malnutrition and their overall development is essential.
The future of the country cannot be secure without protecting the rights of children. If a child
who sells newspapers daily, picks up garbage, begging, works at a tea shop, carries a burden, it
indicates the dangerous future of the country. It is not fair for any civilized society and country to
deprive children of their family life, destroy their childhood, and distance them from education,
health and safety.

As per MWCD, In India, 170 million children, or 40% of the population, experience adversity.
He is forced to live a malnourished and exploited life on the road and pavement. Efforts are
being made to provide children with the right to food, life and liberty through ICDS. A study
conducted by MWCD in 2007 shows that 53 percent of children have been sexually abused. This
figure is a challenge for child protection. According to the 2011 census, India's sex ratio at the
age of 0-6 is 914. This means that even today many girls are killed before or after birth.

The number of child brides in India is around 24 million. This figure proves that 40 percent of
the world's child marriages take place in India. Due to child marriage, girls have to conceive at
an early age. Many times girls die during childbirth. Child marriage violates the right to
education and health of girls. Child marriage is also a type of sexual offense with girls.

1.2 International Commitment towards Child Protection

India is a signatory to many international laws, rules, declarations and policies relating to the
protection, liberty and rights of the child. The United Nations Convention for the Protection of
the Child, which was adopted in 1992, as well as the United Nations Declaration of the Rights of
the Child, which was adopted in 1959, and the promise to implement all of the UNCRC's
articles, are notable. The Indian government adopted two different UNCRC protocols in
[Link] engagement in war, forced prostitution,child abduction, and child pornography are all
covered by these ethics. India is developing policies to safeguard children from abuse and
exploitation. India is a signatory to such International Covenant on Civil and Political Rights, as
well as the International Covenant on Economic, Social, and Cultural Rights, which is dedicated
to children's human rights. India has ratified three key international treaties to safeguard
children's rights.
 1.2.1 Convention on The Rights Of The Child (CRC):
It was accepted at the UN General Assembly in 1989. It was accepted by many developing and
developed countries including India. This Convention is the pillar of the human rights of
children. Its main objective was to protect all children around the world and bring them under the
same international laws. The Convention was a revolutionary step to protect the rights of
children. The Convention appealed to all countries to improve the family environment by
keeping tolerance with all species so that children can be properly reared. The convention stated
that the concept of ethnicity along with nationality is also important. The goal of the Convention
was to ensure that children's primary and fundamental rights were protected without
discrimination. The International Lawmaking Treaty included four major precepts:

"1) The child's best interests override those of the parents,

2) Enjoying the child's right in a non-discriminatory manner,

3) Having access to basic rights, including the right to life, and

4) Survival development, as well as respecting the right to participate in proceedings or hearings

that may have a positive impact on their rights in any other domestic procedures."

These four guiding principles attempt to meet fundamental requirements while also safeguarding
civil, political, economic, social, and cultural rights. Despite the fact that the Indian delegates
and governments signed and ratified the conference, they have selected diverse national and
international policies relating to the implementation of the conference's rules, laws, norms, and
policies. Children's physical abuse has become a global issue. Drug misuse and its consequences
for physical and mental health are a global public health issue that impacts young adolescents as
well as older people throughout their lives. We must protect childhood's integrity today and in
the future. Viciousness can manifest itself in both direct and indirect ways in the lives of
children.
 1.2.2 Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW):

It also applies to girls under the age of eighteen. Article 16.2 of the Convention emphasizes the
need of preventing child marriage and stipulates that no law on child marriage and marriage can
be enacted. States will take legal action to explain the impact of marriage and the minimum age
requirement.

1.2.3 Saarc Convention on Prevention and Combating Trafficking In

Women and Children for Prostitution:

"The immorality of transporting women and children for the purposes of sexual exploitation does
not correspond to respect and modesty, and it violates women and children's basic freedoms," it
says.

1.2.4 Child Protection and UNICEF

The goal of UNICEF's child protection strategy is to establish a "safe environment" for all
children. This entails collaborating with all stakeholders to safeguard children from all sorts of
violence, abuse, and exploitation, including the government, communities, schools, families,
children, Panchayat members, teachers, and Aganwadi workers. The construction of a response
to a breach of a child's right to protection, which contains numerous critical components, is
referred to as the protection environment.

Figure 2: Key Components of UNICEF

UNICEF assists the MWCD in implementing the ICPS, which gives a huge opportunity for
states, counties, and states to create and strengthen robust preventive and responsive child
protection systems. Creating and strengthening mechanisms, as well as promoting community
collaboration and accountability, are all priorities.

1.3 Review of Literature

Researcher has extensively reviewed the available literature on the research topic and has done
extensive and in depth study of the relevant laws in this regard along with the reports of survey
conducted in this behalf by governmental and non-governmental organizations.

As per study conducted by MWCD in 2007, 53.22% of child in India are victims of sexual
abuse. (The Hindu, 14 July 2010)18

18
Study of MWCD (2007) The Hindu, 14 July 2010
In Sarath Chandra Pottala V. Union of India,19the constitutional validity of POCSO was
challenged by the petitioner, that the special court has power to determine the age of the accused.
However if there is a dispute, the special court has no power to determine the same.

According to the WHO, Child Sexual Abuse is such a forceful act which is executed on child
without the consent of the child since the children are unable to give informed consent for such
acts. It violates the law as well the social norms of society.20

A study conducted by RAHI in 1997 revealed that 76% of the victims were sexually abused
when they were child, among whom 71% were abused by their relatives or near and dear ones.21

According to the ANCPCA in 1997, they were cases reported of child abuse, sexual abuse,
physical abuse and neglect.22

Sexual abuse of children is a burning problem in India and emphasizes on the situation which is
aided by the absence of effective legislation and the silence of the victims. There are variety of
sexual offences in child abuse such as sexual assault, sexual exploitation and sexual grooming.
Theeffects of CSA and its preventive measures are also researched by the researcher.23

According to Save the Children, 2009, the research has found that children placed under
institutional care are prone to physical, emotional and sexual abuse and neglect.24

According to the report released by the, MWCD, GOI in 2007, 56% of children in
institutional care were subjected to physical abuse and 47% reported sexual abuse. The JJA lays
down minimum standards on infrastructure and quality of care for each child care institution, but
often these are not adhered to. Many issues such as overcrowding, lack of hygiene and
dysfunctional infrastructure are widespread.25

As per the Newspaper report of Indian Express, Ahmadabad on 26-11-2004, The NHRC,
has took note of newspaper photograph of a handcuffed child and has directed Bihar police to

19
Sarath Chandra Pottala Vs. Union of India; criminal writ petition no. 2/2014 April 2014
20
Report on Child abuses: WHO (1996)

21
Study by RAHI (1997)
22
ANCPCA 1997
23
Smt. [Link], “Child Sexual Abuse Versus the Protection of children fromSexual offences Bill, 2010”
which is published in Law Profile,inVol 2,issue 7, July 2011
24
Report of Save the Children, 2009
25
MWCD, GOI 2007
explain the reason of doing so. It is a violation of the guidelines of the Supreme Court. This boy
of 12 years had been apprehended for demanding extortion money in Bihar. However the police
are violating the direction of Supreme Court in handcuffing him.26

The International Centre for missing and exploited children (ICMEC)took a review of the
child pornographic laws in the year 2010 in 187countries. It came out that 93 countries have
no laws on pornography. Out of remaining 94 countries 36 countries do not criminalize the
possession of pornographic material regardless of their intent to distribute.27

The report of CRY indicates that there are thousands of children go missing every year.
According to the report millions of children are forced into sex trade. The report revealed a
number of children forced into commercial sex. 40% of total children are found to be involved in
commercial sex and most of them are found in metro cities likes Mumbai, Delhi, Chennai,
Kolkata, and Bangalore. 71% of these children are illiterate.28

According to the National Crime Records Bureau, 2012 Chhattisgarh has topped with 107
cases of incestuous rape. In 2004, the cases have reached to 505, in 2005 it was the highest 750,
in 2006 431 cases reported, in 2007 it was 405, in 2008 there were 309 cases reported, in 2009 it
was 404 cases reported, in 2010 it was the second lowest that is 288 cases were reported and the
lowest reported cased that is 267 in 2011.29

Apart from above mentioned literature, researcher has also reviewed several Legislations enacted
by Parliament in relation to protection of children and their rights:

26
Indian Express, Ahmadabad on 26-11-2004
27
ICMEC review of the child pornographic laws in the year 2010
28
Report of CRY 2012
29
Report National Crime Records Bureau, 2012
And researcher has also studied latest National Crime Record Bureau’s latest crime statistics
report in regard to offences committed against children. The International instruments have also
been reviewed to understand the gravity of child abuse and steps taken globally to curb this
menace.

1.4 Research Hypothesis

• The provisions of POCSO Act, 2012 is effective in both pre-trial and the trial procedure
by providing protection to the victim and saving them from re-victimization.

• Implementation of POCSO Act, 2012 is not effective.

• Child sexual abuse is usually by a person who is in a position of trust and confidence in
relation to the child.
1.5 Objectives and Scope of Work

The major objectives of the present research study are:

1. To trace the historical evolution of the problem.

2. To examine the factors responsible for Child Abuse.

3. To peep into various aspects of ‘Child Abuse’ and determine its repercussions on
the society as a whole.

4. To critically examine the efficacy of law on prevention of Child Abuse.

5. To make an enquiry about the different element & enforcement machinery on ‘Child
Abuse’.

1.6 Methodology

The researcher has proposed to use doctrinal method of research. The present research study is
primarily based upon the doctrinal and analytical method. The research work has mainly focused
problems related to child abuse in India in relation to POCSO Act, 2012. Researcher has referred
existing the literature related to child abuse with respect to present problem and reviewed the
same from various sources.

Doctrinal study includes analysis of research articles, relevant statutes, books, and reports,
articles in periodicals, thesis and information from internet. The researcher attempted to study
the collected information from different sources and critically analyzed, reviewed and presented
the same in the research study. The Researcher has gathered information from the secondary data
sources viz. books, journals, articles in a newspaper and judgments of courts. For the purpose of
this research the researcher has visited various libraries and has personally met and interacted
with the research guide and subject experts to collect the relevant information which is required
for the study. Also the researcher has made an attempt to present contents of the research topic in
detail

In this research study, relevant information sources have been collected from primary and
secondary sources. 1) Primary Sources: Includes applicable regulations enacted in India and
related literature have been referred. 2) Secondary Sources: For Further available literature on
subject sources like journals, books, periodicals, reports, case reporters and from the internet are
utilized.

1.7 Scheme of study:

The research work divided in these chapters

Chapter- 1: Introduction – In that chapter researcher introduced the concept of work and research
area, objective and review of literature.

Chapter-2: Concept of child rights: historical development, status of child – In that chapter
researcher explain the concept of child, child right, definitions and historical development of
child rights in national and international level.

Chapter-3: Child Abuse: meaning, concept, historical development – In that chapter researcher
explain the child abuse meaning, concept, types of abuse, conditions of child in international and
national level.

Chapter-4: Legal Framework for protection of child abuse – In that chapter researcher analyzed
the legal development of protection acts, legislations against child labour.

Chapter-5: Role of judiciary in protection of child – In that chapter concludes and analyzed the
different cases of child abuses and impacts of judiciary.

Chapter-6: International Conventions – In that chapter analyzed the conventions about child
rights and protections. Explain the role of India in those conventions.

Chapter-7: Protection of child and global trends – In that chapter analyzed the global trends and
act of different types of countries.

Chapter8: Conclusions and suggestions – In that chapter researcher conclude the research work
and completed the objectives of research and give suggestion for child abuses and right.