THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 IS IT REALLY WORTH ITS SALT?
– Puja Khetrapal*
The Protection of Children from Sexual Offences Act, 2012 came into force on 14lh November, 2012, marking alandmark moment in India’s history, The Bill was earlier passed in the Rajya Sabha on 10th May, 2012 and in the Lok Sabha on 22nd May, 2012. It had received the assent of the President on 20th June, 2012. In India, which is home to the largest child population in the world, where almost 42% of its total population is under 18 years of age, the enactment of this legislation which remained pending for over a long time was certainly a need of the hour. Over 53% children surveyed in 2007 stated that they had experienced one or more forms of sexualabuse. States like Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both boys and girls. 50% abuses are from persons known to the child or in a position of trust and responsibility. What comes as no surprise is the fact that the perpetrators were family members, household staff, teachers and others known to the child and the abuse was mostly concentrated among the age groups of 5-12. This study was one of the first of its kind and showcased that most children choose not to report the abuse and this evidently results in child sexualabuse becoming one of the least documented violations in the country.
LAW GOVERNING CHILD SEXUAL ABUSE PRIOR TO THE PASSING OF THE ACT
Sexual offences against children, were prior to the enactment of this praiseworthy legislation, covered under different sections ofthe Indian Penal Code (hereinafter 1PC). The IPC does not provide for all types of sexualoffences against children and does not distinguish between adult and child victims.The provisions of the IPC theprimarily criminal statute in India, was hopelessly deficientin dealingwith thewhole range of sexual crimes that are committed against a child and did not make any specificprovisions forcrimes against children. Legalremedies were only available under Sections 375,354 and 377 which covered rape, sexualmolestation and unnaturalsex which are notat allgender neutral. Theselimited provisions of theIPC largely focus on offences committed against the female child, with little emphasis being given to the sexual offences against a male child thereby resulting in a very parochial approach..Additionally, the IPC also failed to take into account the various forms of sexual violence committed on children and the range of sexualcontexts according to theextent of coercion, injury, age and incapacitation of the child. It also did not take any note of the concept of relationship of the perpetrator with the child which as the aforementioned report suggests proves to be crucial in such cases. Thesedeficiencies in the Indian penal system were also highlighted by the Law Commission in 2000 when it suggested that the term sexual assault be used in place of rape and should include all forms of penetration, both human and object. Quite evidently this inadequacy in the law necessitated the formulation of a separate legislation which dealt exclusively with sexual crimes against children.
PRAISE WORTHY PROVISIONS OF THE ACT
The Protection of Children from Sexual Offences Act, 2012 has some remarkable positivefeatures. The law has also taken a big step forward in includingnot only penetrative assault under theambit ofsexual abuse but also expanded the definition to include visual, verbaland physical sexualabuse as well. Itprovides stringent punishments forthe offences defined under theAct as per thegravity ofthe offence.The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.
Reporting of cases of Sexual Abuse
Any person (includingthe child),who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to ‘SpecialJuvenile Police Unit’ or the localpolice who’s duty is to ensure care and protection of child within 24 hours of the reported crime. The law provides for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or to the local police. These agencies are required to make immediate arrangements to give the child adequate care and protection such as admitting the child into a shelter home or to the nearest hospital within twenty-four hours of the report. The Child Welfare Committee (CWC) is also required to benotified within 24 hours of recording the complaint. Any person, who makes false complaint or provides false information against any person, in respect of an offence committed under sections 3, 5,7 and section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both. Where a false complaint has been made or false information has been provided by a child, no punishment shallbe imposed on such child. Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimizing such child in any ofthe offences under this Act, shallbe punished with imprisonment which may extend to one year or with fine or with both.
Child Friendly procedure incorporated in the Act
The statement of the child shall be recorded at the residence of the child or at the place of his choice,preferably by a women police officer not below the rank of the sub-inspector. Evidence has to be recorded within 30 days. No child shall be detained in the police station in the nightfor any reason. Police officer shallnot bein uniform while recording the statement of the child. The police officer making the investigation, shall, while examining thechild, ensure that atno point of time the child come in the contact in any way with the accused. The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child. The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.Assistance of an interpreter or translator or an expert as per the need of the child can be taken.Assistance of special educator or any person familiar with the mannerof communication of thechild in case child is disabled shall be taken. In case the victim is a girlchild, the medicalexamination shallbe conducted by awoman doctor.The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
CRTTICAL APPRAISAL OF THE ACT
The most outstanding achievement of theAct lies in the fact that it fills the lacunae created by the inadequate provisions of the IPC. In addition to filling these lacunae in the law, the Act succeeds in three particular aspects. Firstly, it is gender neutral as it recognizes the fact that, despite presumptions to the contrary, boys are also subjected to sexual abuse. This gives a wider connotation to the Act and enables it to be more effective. Secondly, it shifts the burden of proof onto the accused in a very significant way with the introduction of the concept of “culpable mentalstate”, which includes motive, knowledge, or intention. Thirdly, the Act does away with euphemistic terms such as eve teasing by bringing abouta distinction between sexualassault and penetrative sexual assault.
Thus, the inclusion of these provisions suggests that the Act seems to have got its initial footing right. Its aim is well laid down and its many provisions seem to have the potential to support thesame. It is therefore no surprise thatthe Act was described by thelower houseof parliament as a ‘landmark legislation’. But the question thatarises here is that is the Act really worthy ofthis credit and exuberantpraise? Havethe legislators overlooked certain crucial issues in an apparent rush to make the bill a law?
Shortcomings of the Act
Despite some of these very significant provisions, theAct is lacking in some fundamental ways in which child sexualabuse could be prevented and children protected.Although theAct is meant to protect children from sexualabuse there is nothing in theAct that refers to prevention of abuse. It only deals with actions to be taken after the child has suffered sexual violence. Hence, theAct is a misnomer. The primary issue with theAct is that it criminalizes allconsensual sexualactivity belowthe age of 18. In doing so, it moves on a ludicrous assumption that the adolescents of our country (where rampant child sexualabuse exists) are sexually inactive and all adolescent sexual encounters amount to violation of sexualautonomy of the person and cause harm. Vrinda Grover, a lawyer and human rights activist in New Delhi, is one of many who say that making the age of consent 18, rather than 16, is unrealistic. In India, 18 per cent of women are married before the age of 15 and nearly one in every two are married before the age of 18. To criminalize allconsensual sexualactivity on the ground that everyone below 18 is a child – and that too in a conflicted social environment where child marriages persist on the one hand and where teenagers are becoming increasingly aware about sexuality on the other – can have terrible consequences. Only recently, the Delhi High Court described the move to raise the age of consent from 16 to 18 as “regressive” and “draconian,” while acquitting a youth of kidnapping and raping a 17- year-old girlwho he had gotten married too.
The particular provision has thus, faulted primarily on three grounds. Firstly, it has given scant regard to prevailing socialrealities. Secondly, it is not in consonance with various other laws such as theIndian Penal Code and the Prohibition of Child Marriage Act, 2006. Lastly, the justification thatthe legislature is bound by internationalobligations to raise the age of consent among children is without any merit as no such obligations presently exist. Another point to note is that this Act states that it is applicable to the whole of India, except Jammu and Kashmir. In lightof this provision, thequestion that arises is that don’tthe children of Jammu and Kashmir require protection againstsexualassault? In the violent climateexisting in that state,there is greater likelihood of children being victims of sexualexploitation. Shouldn’tsome provisions be made to prevent this from happening?
CONCLUSION AND SUGGESTIONS
Though the Act is an effective toolwhich while curbing the menace of child sexualabusealso fills out certain frailties in the Indian LegalSystem; it ends up being a classicalexample of a “good act with bad provisions”. By stimulatinga higher age, theAct, as it stands seems set to encourage frivolous and unwarranted complaints. Raising the age limit is not the solution to the problem and would serve no purpose except giving a tool to the police to harass minors. The lawmakers have to take note of the fact that youngsters do engage in consensual sexual activity and putting them behind bars would amount to victimization of the child, which is something theAct aims to prevent.Now that we have the law, we hope that the government – especially the Ministry of Women and Child Development- will ensure that the above lacunae in the law are rectified through the rules that will be passed to enable its effective implementation. And the age of consent must be lowered to 16 by an amendment as it was in the 2001 draft version of the law. Measures can also beundertaken to address the dire need to impart sex education to our children. This would not only impact the ability of the child to make an informed decision in matters relating to choice ofsexualpartners butwould also build an effective response to overtures which constitute sexualabuse such as advances by an adult relative, which many a times goes unreported.
Therefore, no doubt the Act is an obvious step forward and is worthy of all credit and praise but an amendment in clause (d), Section 2 of the Act which provides the definition of a child, while retaining the rest of the provisions provides the mostutilitarian solution to theproblem faced by theAct. This would ensure that the legislation while getting rid of its absurdities does not lose its significance.
– Law & Child-Chaturvedi
– Women & Child – Bhumika Chawla
– Protection of Children from
– Sexual Offences Act, 2012 -B.S. Khetrapal