1

Child Sexual Abuse: An Ugly Breach of OurCommitment to Protect the Innocent.

Rohan Kashyap****

I am filled with shame, disgust, guilt and low self-esteem.

What I thought all along was affection, I realize now -

after 12 years of sexual relationship with my uncle - was

sexual abuse.1

- Anjana

Abstract

The phenomenon of sexual abuse and exploitation ofchildren is not new, and the problem is severe to theextent that children are sold, rented out and sexuallyabused by adults everywhere. While it is almostimpossible to obtain accurate figures, it is a factthat millions of girls and boys worldwide are beingused in prostitution, pornography, trafficking, andother forms of sexual abuse and exploitation. There isno uniformly accepted definition of child abuse. Therehave been a number of definitions of the phrase ‘childsexual abuse’ (CSA). It could be termed as an activityrelating to the engaging of sex organs for sexualgratification, which takes advantage of, violates ordeceives children or young people. CSA has beendefined as any kind of physical or mental violation ofa child with sexual intent, usually by a person who isin a position of trust or power vis-à-vis the child.CSA is also defined as any sexual behavior directed at

**** Third year student, Chotanagpur Law College, Ranchi, Jharkhand. E-mail:rohancnlc@gmail.com1 Quoted at: Frontline, Volume 20 - Issue 21, October 11 - 24, 2003 India'sNational Magazine from the publishers of THE HINDU.

2

a person under the age of 16 years, without informedconsent.As per some other definitions, CSA is any kind ofphysical or mental violation of a child with a sexualintent, usually by an elder person, who is inpossession of trust or power vis-à-vis the child(Bajpai, 2006). CSA becomes exploitation when a thirdparty benefits through a profit. Commercial sexualexploitation of children commonly refers to the use ofa child for sexual purposes in exchange for cash orin-kind favors between the client/customer andintermediary or agent who profits from such trade inchildren. Those who profit from such trade in childreninclude a wide range of persons, including parents,family members, agents, and community members, largelymen, but also women. It includes child prostitution,through trafficking, child sex tourism and childpornography.

Introduction

The subject of child sexual abuse is still a taboo in

India. There is a conspiracy of silence around the subject and

a very large percentage of people feel that this is a largely

western problem and that child sexual abuse does not happen in

India. Part of the reason of course lies in a traditional

conservative family and community structure that does not talk

about sex and sexuality at all. Parents do not speak to

children about sexuality as well as physical and emotional

changes that take place during their growing years. As a

result of this, all forms of sexual abuse that a child faces

do not get reported to anyone. The girl, whose mother has not

3

spoken to her even about a basic issue like menstruation, is

unable to tell her mother about the uncle or neighbour who has

made sexual advances towards her. This silence encourages the

abuser so that he is encourage to continue the abuse and to

press his advantage to subject the child to more severe forms

of sexual abuse.

Very often children do not even realize that they are

being abused. In a study on Women's Experiences of Incest and

Childhood Sexual Abuse conducted by RAHI, some of the

respondents have stated that till the questionnaire was

administered to them they did not realize that they had been

abused as children. They had masked the incident as a painful

and shameful one not to be ever told to anyone. Some deep

seated fear has always moved Indian families to keep their

girls and their 'virginity' safe and many kinds of social and

cultural practices have been built around ensuring this. This

shows that there is knowledge of the fact that a girl child is

unsafe though nobody talks about it. However this fear is only

around girls and the safety net is generally not extended to

boys. There is evidence from this as well as other studies

that boys are equally at risk. As defined by the World Health

Organization, child sexual abuse is the involvement of a child

in sexual activity that he or she does not fully comprehend,

is unable to give informed consent to, or that violates the

laws or social taboos of society. Child sexual abuse is

evidenced by this activity between a child and an adult or

another child who by age or development is in a relationship

of responsibility, trust or power, the activity being intended

4

to gratify or satisfy the needs of the other person. This may

include but is not limited to:

The inducement or coercion of a child to engage in any

unlawful activity

The exploitative use of a child in prostitution or other

unlawful sexual practices

The exploitative use of children in pornographic

performances and materials

However, for the purpose of this study, sexual abuse is

defined as severe forms of sexual abuse and other forms of

sexual abuse.

Severe forms of sexual abuse include:

a) Assault, including rape and sodomy

b) Touching or fondling a child

c) Exhibitionism- Forcing a child to exhibit his/her private

body parts

d) Photographing a child in nude

Other forms of sexual abuse include:

a) Forcible kissing

b) Sexual advances towards a child during travel

c) Sexual advances towards a child during marriage situations

d) Exhibitionism- exhibiting before a child

e) Exposing a child to pornographic materials

A study on Child Sexual Abuse carried out by Save the

Children and Tulir in 2006 looked at the prevalence and

dynamics of child sexual abuse among school going children in

Chennai. The study was conducted with a view to add to the

scarce indigenous body of knowledge on child sexual abuse and

5

with the aim of breaking the silence around the issue,

dispelling certain myths and providing research based

information on child sexual abuse. The team followed major

ethical standards of confidentiality, freedom to participate,

informed consent and a multi-disciplinary team. The major

findings of this study include:

1. Out of the total of 2211 respondents, 42% children faced at

least one form of sexual abuse or the other.

2. Among respondents, 48% of boys and 39% of the girls faced

sexual abuse.

3. The prevalence of sexual abuse in upper and middle class

was found to be proportionately higher than in lower or in

lower middle class.

4. Sexual abuse was found to be prevalent in both joint and

nuclear families.

5. Majority of the abusers were people known to the child and

strangers were a minority.

6. Sexual harassment in public places and exhibitionism was

higher by strangers.

7. Sexual abuse of children was very often a pre-planned

insidious abuse of a relationship by an abuser over the child.

The WHO estimates that 150 million girls and 73 million

boys under 18 have experienced forced sexual intercourse or

other forms of sexual violence involving physical contact,

though this is certainly an underestimate. Much of this sexual

violence is inflicted by family members or other people

residing in or visiting a child's family home- people normally

trusted by children and often responsible for their care. A

6

review of epidemiological surveys from 21 countries, mainly

high- and middle- income countries, found that at least 7% of

females (ranging up to 36%) and 3% of males (ranging up to

29%) reported sexual victimization during their childhood.

According to these studies, between 14% and 56% of the sexual

abuse of girls, and up to 25% of the sexual abuse of boys, was

perpetrated by relatives or step parents. In many places,

adults were outspoken about the risk of sexual violence their

children faced at school or at play in the community, but

rarely did adults speak of children's risk of sexual abuse

within the home and family context. The shame, secrecy and

denial associated with familial sexual violence against

children foster a pervasive culture of silence, where children

cannot speak about sexual violence in the home, and where

adults do not know what to do or say if they suspect someone

they know is sexually abusing a child2.

How far does Indian Penal Code Protects Children from

Sexual AbuseAccording to The Convention on the Rights of the Child,

Article 1 defines “the child” as “every human being below the age of

18 years unless under the law applicable to the child, majority is attained earlier”.

In the Indian legal system, the child has been defined

differently in the various laws pertaining to children.

The Indian Penal Code defines the child as being 12 years

of age, whereas the Indian Traffic Prevention Act, 1956

2 Study on Child Abuse INDIA 2007 Ministry of Women and Child DevelopmentGovernment of India A report prepared by: Dr. Loveleen Kacker, IAS SrinivasVaradan Pravesh Kumar.

7

defines a ‘minor’ as a person who has completed the age of 16

years but not 18 years. Section 376 of IPC, which punishes the

perpetrators of the crime of rape, defines the age of consent

to be below 16 years of age, whereas Section 82 & 83 of the

IPC states that nothing is an offence done by a child under 7

years, and further under 12 years, till he has attained

sufficient maturity of understanding the nature of the Act and

the consequences of his conduct on that occasion.

There are very few sections under the Indian Penal Code

that deal with child sexual abuse. Some terrible home truths

are:

The laws for women are extended to include children.

The major weakness of these laws is that only penile

penetration is considered a grave sexual offence. The

crime is considered lesser when it is oral, or through

penetration with an object.

Although section 377, dealing with unnatural offences,

prescribes seven to ten years of imprisonment, such

cases can be tried in a magistrates court, which can

impose maximum punishment of three years.

If the abuse is repeated several times it affects

children more severely, however as yet there is no law

for repeated offenses against the one child.

How do we apply section 354, on outraging the modesty of

women, with respect to children? How do we define modesty?

The gravity of the offence under section 509, dealing

with obscene gestures, is less. Yet even in such cases, the

child’s psyche may be affected as severely as in a rape.

8

In the Indian context the age of an individual in order to be

determined as a “child” is not uniformly defined. The

consequence of this is that it offers various gaps in the

legal procedure which is used by the guilty to escape

punishment.

In cases of rape the burden of proof is on the victim of

rape, however if the victim is a minor, the question of giving

consent does not arise, as consent of a minor is not concerned

as consent in the eyes of the law. In cases of CSA, at present

the law that is referred to is section 376 of the IPC, where

the age of consent is above 16 years.

Child abuse cases are handled under various sections of the

Indian Penal Code, which are laws meant for adults.

"So far there was not a single law aimed at safeguarding

children and protecting them against abuse. Offences against

children were so far booked under laws under the IPC, which at

times failed to result in prosecution and conviction simply

for the reason that crimes involving children need to be

handled with different tools. 3

For lack of any specific section for boy children, Section

377 (unnatural offences) is presently being used for cases of

child sexual abuse of boys. This is an area of great concern.

A pilot study on the implementation of the existing law on

child sexual abuse4 revealed the following facts:

Statements taken by the Investigating Officers (IOs)

mostly revolve around one episode of CSA.

3 http://www.arpan.org.in/csa.html#anchor8csa. Visited on 08/06/2012.4 Pilot Study by Trupti Panchal, TISS, Mumbai.

9

The increase in the number of acquittals in cases of CSA

is primarily because of insufficient medical evidence.

Medical examinations and reports need to be scrutinized

extensively to recommend appropriate changes so that the

abuse is reflected in all its complexities when it is a

long-term abuse.

All the victims were under the age of 10 years when the

abuse first occurred. The data also shows that 17 of the

abusers were below the age of 18 years.

Child Marriage: A Form of sexual abuse of children

Child marriage also constitutes a form of sexual abuse of

children. In Rajasthan, on Akshya Tritiya day, which is popularly

known as the Akha Teej, hundreds of child marriages are openly

performed. Akha Teej is regarded as the most auspicious day for

celebrating marriages. On this day, even infants who have just

been born or are only a few years old and cannot even sit or

walk are married. In April 2003, the Forum for Fact Finding

Documentation and Advocacy (FFDA), a human right NGO, filed a

public interest case5 seeking strict implementation of the

Child Marriage Restraint Act 1929 (CMRA).6 In December 2006,

the Indian Upper House of Parliament approved a Bill outlawing

Child Marriages called the Prohibition of Child Marriage Act

2006.

5 Forum for Fact Finding Documentation and Advocacy (FFDA) v. Union ofIndia, W.P. No. 212 of 2003 (Supreme Court of India, April 25, 2003).6 CMRA repealed by the Prohibition of Child Marriage Act 2006.

10

The salient features of the Prohibition of Child Marriage Act,

2006, are as follows:

Promoting, permitting, or participating in child

marriages is punishable.

Child Marriage Prevention Officers have been

appointed to deal with cases of child marriage.

Child marriages can be declared null and void at the

option of the contracting party—a child—within two

years of his/her attaining majority.

While granting the decree of nullity, the court

shall order both the parties to the marriage and

their parents or guardian, to return to the other

party, the money, valuables, ornaments and other

gifts received on the occasion of marriage by them

from the other side or an amount equal to their

value.

The court can order maintenance for and residence to

the female contracting party.

If the children are out of child marriage, then

their best interests should be the paramount

consideration.

The following are some of the shortcomings of the

Prohibition of Child Marriage Act,

2006:

The child marriage is declared void only in cases of

compulsion and trafficking.

The onus of declaring the marriage void is on the

court only if the child or his/her guardians file

11

legal proceedings, but in reality, the parents may

never take such a step.

The Act implicitly acknowledges traditional

marriages.

There is no provision for the punishment of

officials under the Act.

There are no incentives for traditional communities

to motivate them to stop the practice of child

marriage.

The Supreme Court of India, on 14 February 20067, made it

mandatory for all marriages to be registered and directed

authorities across the country to amend rules so that its

order could be implemented within three months. This judgment

was expected to have a significant effect on child marriages.

The Court was of the view that one way of curbing the practice

of child marriages was to make it legally mandatory for

everyone to register their marriages to ensure that people

record their ages at the time of marriage. The Supreme Court

asked the Central Government to give wide publicity to this

order. The Central and state governments were asked to

incorporate appropriate provisions for the consequences of

non-registration as well as false documentation during the

registration of marriages. The Court also made it clear that

the rules should specifically contain a provision for

appointment of an officer for this purpose.

Child pornography and child sex tourism

7 Smt Seema v. Ashwani Kumar T.P. Civ No 291 of 2005.

12

Child pornography can be dealt with under the Information

Technology Act, 2000, as the publishing of information, which

is obscene, in electronic form is punishable. The Indian Penal

Code can also be used. Child sex tourism is a frighteningly

well-organized operation and police enforcement against it in

India has been notoriously lax. A decade or so ago, the

Interpol listed the state of Goa in India as an organized hub

of such activities and other states too have been known to

attract such offenders.

The Goa Children’s Act, 2003, is applicable only in Goa

against child sexual abuse, especially those related to sex

tourism. The legislation has specifically made all cases of

abuse of such nature, a non-bailable offence under Section 2

(a) of the Criminal Procedure Code, 1973. The fines and jail

terms against the accused are also severe—Rs. 100,000 with

imprisonment of 1–3 years for sexual assault and incest, and

Rs. 200,000 with a 7–10 years jail term in the case of a grave

sexual assault. The setting up of a Children’s Court to try

all offences against children is a bold step prescribed by

this law. A child-friendly court will help minimize the double

trauma that abused children are subject to in courts, which

even adults find awesome, and terrifying.

According to the Goa Children’s Act, 2003, a lot of the

onus to prevent child trafficking and prevent child sexual

abuse in the form of sale and procurement of children lies on

establishments like hotels and airports and rentals. Any form

13

of soliciting or publicizing or making children available to

any adult or even other children by hotels for purposes of

commercial exploitation is prohibited. This includes hosting

websites, taking suggestive or obscene photographs, providing

materials, soliciting customers, guiding tourists and other

clients, appointing touts, using agents, or any other form,

which may lead to the abuse of a child. Airport authorities,

border police, railway police, traffic police are required to

report any suspected case of trafficking of children or of an

adult travelling with a child under suspicious circumstances.

The sale of children is also prohibited under this Act.

The Act also envisages the government’s role in making

sure that all child prostitutes are removed from their

existing place of exploitation and in ensuring that they are

rehabilitated and integrated into society. The Act further

provides that the State shall provide for the setting up of

one or more Victim Assistance Units, which shall facilitate

the child to deal with the trauma of abuse and assist the

child in processes involved with appearing as a witness before

any Court or authority handling a case of abuse of a child.

The State is also expected to carry out child sensitization

programmes for police officers at all levels, which shall

include an orientation on child rights laws. Child rights laws

and methods of handling child abuse-related cases should also

be specifically included in the Police Training School

curriculum. The State shall undertake child sensitization

training for those involved in healing and rehabilitation and

14

other assistance programmes for children who are victims and

promote programmes of information support and training for

such children.

Some important judicial responses to child sexual abuse and

exploitation

As regards child prostitution in the light of devadasi and

jogin practices, the Supreme Court asked the state governments

to set up advisory committees to make suggestions girls and

children8.

The Delhi High Court initiated several proactive steps by

summoning NGOs and government officers for ensuring effective

rescue, rehabilitation and re-integration. Emphasis was laid

on the accountability of officers, empowerment of the

survivors and preventing prospects of their re-trafficking.9

The Bombay High Court has held that10:

Medical examination of rescued girls to determine

their age and to check if they are suffering from

any medical ailment;

Counseling and aftercare to be ensured;

Children rescued from brothels to be treated as

“children in need of care and protection” under the

Juvenile Justice (Care and Protection of Children)

Act, 2000; and

8 Vishal Jeet v. Union of India, 1990 (3) SCC 318.9 Court on its own motion v. UOI (Crl. M. No. 862/01) in a PIL: Crl. W. No.532/92 filed in Delhi HC for implementation of ITPA.10 Public at large v. State of Maharashtra: W.P. 112/92.

15

The lawyer representing the accused not be allowed

to represent the victims.

It has now been well established that all judicial

proceedings relating to victims of sexual abuse must be

conducted in an ‘in-camera’ trial11. The Delhi High Court

allowed the evidence of victims of trafficking who had been

rehabilitated in their home states to be recorded through

video conferencing, in consonance with the judgment of the

Supreme Court in State of Maharashtra v. Dr. Praful Desai12.

This is the first instance of a court allowing evidence to be

recorded through video conferencing in a case of trafficking.

In the leading case of Sakshi v. Union of India the court

gave the following directions for holding the trial of child

sex abuse or rape:

A screen or some such arrangements may be made where the

victim or witnesses (who may be equally vulnerable like

the victim) do not see the body or face of the accused.

(ii) The questions put in cross-examination on behalf of

the accused, insofar as they relate directly to the

incident should be given in writing to the Presiding

Officer of the Court who may put them to the victim or

witnesses in a language which is clear and is not

embarrassing.

(iii) The victim of child abuse or rape, while giving

testimony in court, should be allowed ,sufficient breaks

as and when required.

11 State of Punjab v. Gurmit Singh, 1996 SCC (CR) 316.12 AIR 2003 SC 2053.

16

Victim and witnesses of trafficking for commercial sexual

abuse and exploitation

Incidents of violence against women and children

(including trafficking) have considerably increased during the

last decade in South Asia though few cases are reported to the

law enforcement agencies and even fewer reach the trial stage.

A small percentage of the accused are convicted. Most cases

result in acquittals. The reason is the reluctance of victims

to come forward in filing complaints against those who have

violated their rights or to testify in court. There is also a

need to have a law on victim witness protection. A draft

protocol called Regional Victim/Witness Protection Protocol to

Combat Trafficking, Commercial Sexual Exploitation and Sexual

Abuse of Women and Children in South Asia has been drafted13.

This protocol recommends basic guidelines on the standards of

prosecution of offenders and specific measures to be taken

collaboratively by the State and civil society. It deals with

the protection of victims, prevention, repatriation,

rehabilitation and re-integration and extradition of such

victims and witnesses of trafficking.

The SAARC Convention on Preventing and Combating

Trafficking in Women and Children for Prostitution was signed

on 5 January 2002 and ratified on 2 September 2003. The SAARC

Convention on Regional Arrangements for the Promotion of Child

Welfare in South Asia was signed on 5 January 2002 and

ratified on 2 September 2003. At the international level,13 Final Protocol drafted by Prof. Asha Bajpai, prepared for Sariq, India.

17

Optional Protocol on the Sale of Children, Child Prostitution

and Child Pornography was ratified and signed on 15 November

2004. More multilateral and bilateral efforts are required to

control this offence, which has now taken the form of an

organized crime.

We need a comprehensive law on child sexual abuse that

addresses the special needs of children, keeps track of sex

offenders so that they do not come into contact with children,

includes mandatory reporting for certain professionals, lays

down court and police procedures that are child-friendly and

sensitive, addresses issues of survivors of child sexual

abuse, and provides compensation to victims. This is because

the above bill has several loopholes and India today appears

to be a ‘haven’ for child sexual abusers and pedophiles. It is

strange but true that the Indian Penal Code does not recognize

child sexual abuse and there is no proper law nor policy on

child sexual abuse in India. The laws dealing with sexual

offences are outdated and do not specifically address child

sexual abuse. Only rape and sodomy can lead to criminal

conviction. Anything less than rape amounts to outraging the

modesty. There are no procedural provisions to ensure that the

best interests of the child are protected. The laws focus more

on technicalities. Medical reports prepared by some

insensitive doctors are vague and inadequate. The absence of a

proper medical report in the case of a sexual assault goes

against the assaulted child. The insensitive interviewing of

children by untrained police personnel also causes further

trauma to the child. Further, a child has to give his/her

18

evidence several times and re-live the trauma and the laws

have no provision to prevent such trauma to the child.

In the jurisprudence of fair trial in India, exceptions

of hearsay evidence are accepted in cases of dying

declaration, murder victims, etc. Why can such an exception

not be made in the case of a child victim’s testimony too?

There is thus a need to amend both the substantive and

procedural laws to ensure successful prosecution and to

protect the best interest of the child. The physical and

psychological well-being of child sexual abuse victims and

witnesses and protection of their best interests are

sufficiently important to outweigh the technicalities of the

law. In child sexual abuse cases, the child victim is the main

witness. The language of the child has to be understood by the

interviewers. Children need legal protection right from

Children of India: Rights and Opportunities the time of the

incident onwards, while filing the FIR (First Information

Report), during the trial and the post-trial period. Video-

recorded testimony (done only once) of a child victim of

sexual abuse must be admissible as evidence in courts.

Protection orders must be issued by the courts. For this

purpose, various professionals must work in co-ordination with

each other. Area-wise joint investigation committees too need

to be formed. Each such committee can consist of a trained

police officer, mental health expert, social worker, child

rights lawyer, teacher, government official and a sensitive

medical doctor. Such teams must be recognized by the law and

immediately swing into action as soon as a child sexual abuse

19

case comes to light. There must be a list of responsible

persons like teachers and doctors who have to report for duty

when such a case comes to light. The State has a duty to

protect minor victims from sexual abuse by foreigners and

pedophiles, who run institutions, in the name of charity. Many

a times they escape even the minimal government inspections

because they ‘do not use funds’ from the State.

The Protection of Children from Sexual Offences Bill,

2011The Statement of Objects and Reasons to the Bill reads as

follows:-14

“Article 15 of the Constitution, inter alia, confers upon the

State powers to make special provision for children. Further,

Article 39, inter alia, provides that the State shall in

particular direct its policy towards securing that the tender

age of children are not abused and their childhood and youth

are protected against exploitation and they are given

facilities to develop in a healthy manner and in conditions of

freedom and dignity.

The United Nations Convention on the Rights of Children,

ratified by India on 11th December, 1992, requires the State

Parties to undertake all appropriate national, bilateral and

multilateral measures to prevent (a) the inducement or

14 Department-Related Parliamentary Standing Committee On Human ResourceDevelopmentTwo Hundred Fortieth Report On The Protection Of Children From SexualOffences Bill, 2011(Presented To The Rajya Sabha On 21st December, 2011)(Laid On The Table Of Lok Sabha On 21st December, 2011)

20

coercion of child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other

unlawful sexual practices; and (c) the exploitative use of

children in pornographic performances and materials.

The data collected by the National Crime Records Bureau shows

that there has been increase in cases of sexual offences

against children. This is corroborated by the ‘Study on Child

Abuse: India 2007’ conducted by the Ministry of Women and

Child Development. Moreover, sexual offences against children

are not adequately addressed by the extant laws. A large

number of such offences are neither specifically provided for

nor are they adequately penalized. The interests of the child,

both as a victim as well as witness, need to be protected. It

is felt that offences against children need to be defined

explicitly and countered through commensurate penalties as an

effective deterrence.

It is therefore, proposed to enact a self contained

comprehensive legislation inter alia to provide for protection

of children from the offences of sexual assault, sexual

harassment and pornography with due regard for safeguarding

the interest and well being of the child at every stage of the

judicial process, incorporating child-friendly procedures for

reporting, recording of evidence, investigation and trial of

offences and provision for establishment of Special Courts for

speedy trial of such offences.

The Bill would contribute to enforcement of the right of all

children to safety, security and protection from sexual abuse

and exploitation.”

21

Bill Summary

The Protection of Children from Sexual Offences Bill,

2011 was introduced in the Rajya Sabha on March 23, 2011.

The Bill was referred to the Standing Committee on Human

Resource Development (Chairperson: Shri Oscar Fernandes),

which is scheduled to submit its report by June 15, 2011.

The Bill seeks to protect children from offences such as

sexual assault, sexual harassment and pornography. India

is a signatory to the UN Convention on the Rights of the

Child since 1992. The parties to the Convention are

required to take measures to prevent children from being

coerced into any unlawful sexual activity.

Any person below the age of 18 years is defined as a

“child”. The Bill seeks to penalise any person who

commits offences such as “sexual harassment”, “sexual

assault”, “penetrative sexual assault”, and “aggravated

penetrative sexual assault”.

A person commits “sexual harassment” if he uses words or

shows body parts to a child with sexual intent, shows

pornography to a child or threatens to depict a child

involved in sexual act through the media. The penalty is

imprisonment for upto three years and a fine.

A person commits “penetrative sexual assault” if he

penetrates his penis into the vagina, mouth, urethra or

anus of a child or makes a child do the same or inserts

any other object into the child’s body or applies his

mouth to a child’s body parts. If however the child is

22

between 16 and 18 years, it shall be considered whether

consent for the act was taken against his will or was

taken by drugs, impersonation, fraud, undue influence and

when the child was sleeping or unconscious. The penalty

is imprisonment between seven years and life and a fine.

The Bill penalises “aggravated penetrative sexual

assault.” Such an offence is committed when a police

officer, a member of the armed forces or a public servant

commits penetrative sexual assault on a child. It also

includes gang penetrative sexual assault and assault

using deadly weapons, fire or corrosive substance. The

Bill also covers assault by staff of private hospital and

staff of an educational institution if the child is in

that institution.

Penetrative sexual assault shall be considered

aggravated if it injures the sexual organs of the child

or takes place during communal violence or the child

becomes pregnant or gets any other threatening disease or

is below 12 years. It also covers cases where the

offender is a relative of the child through blood or

adoption or marriage or foster care or is living in the

same household.

A person commits “sexual assault” if he touches the

vagina, penis, anus or breast of a child with sexual

intent without penetration. If the child is between 16

and 18 years, it shall be considered whether the consent

was taken against the child’s will or by threat or

23

deceit. The penaltyis imprisonment between three to five

years and a fine.

The offence of “aggravated sexual assault” is committed

under similar conditions as for “aggravated penetrative

sexual assault”. The penalty for the offence is

imprisonment between five to seven years and a fine.

A person shall be guilty of using a child for

pornographic purposes if he uses a child in any form of

media for the purpose of sexual gratification through

representation of sexual organs of a child or using a

child in sexual acts or other types of obscene

representation. The penalty is rigorous imprisonment for

upto five years and a fine. On subsequent convictions,

the term of imprisonment is upto 7 years and fine. The

Bill also includes penalties for storage of pornographic

material and abetment of an offence.

An offence committed under this Act shall be reported to

either the local police or the Special Juvenile Police

Unit who has to report the matter to the Special Court

within 24 hours. The police also have to make special

arrangement for the care of the child. In case a person

fails to report a case, he shall be penalised. Also, the

Bill includes penalties for making false complaints.

Each district shall designate a Sessions Court to be a

Special Court. It shall be established by the state

government in consultation with the Chief Justice of the

High Court. The state government shall appoint a Special

Public Prosecutor for every Special Court. The Court

24

shall, as far as possible, complete the trial within one

year. The trial shall be held in camera and in the

presence of the child’s parents or any person trusted by

the child.

The guardian of the child has the right to take

assistance from a legal counsel of his choice, subject to

the provisions of Code of Criminal Procedure, 1973.

If an offence has been committed by a child, it shall be

dealt with under the Juvenile Justice (Care and

Protection of Children) Act, 2000.

Standing Committee Report Summary

The Protection of Children from Sexual Offences Bill, 2011 was

referred to the Department-related Parliamentary Standing

Committee on Human Resource Development by the Chairman, Rajya

Sabha on 28 March, 2011 for examination and report.

The Standing Committee on Human Resource Development

submitted its 240th Report on ‘The Protection of Children

from Sexual Offences Bill, 2011’ on December 21, 2011.

The Chairperson was Shri Oscar Fernandes.

The Bill seeks to protect children from offences such as

sexual assault, sexual harassment and pornography. The

Committee recommended that the Bill be passed after

incorporating the suggestions made by it. It also stated

that the government provide a note stating reasons for

not incorporating certain recommendations.

25

The Committee stressed that the Bill does not include

provisions for relief and rehabilitation of a child who

has been abused. It recommended that an exclusive law on

protection of children on sexual offences should include

all allied aspects. Also, it should ensure that all the

institutional arrangements are fully functional.

The Committee suggested that the training programmes

being conducted by different agencies be assessed so that

the officials are sensitised. The Committee also proposed

that an effective monitoring mechanism be put in place to

monitor the implementation of the

law. Such a system was established for the Juvenile

Justice Act where the Supreme Court designated High Court

judges in every state to monitor the law. Also, the

National Commission for Protection of Child Rights

(NCPCR) could be considered for a monitoring role.

The Committee felt that it was necessary to sensitise and

inform children, teachers and parents about sexual

offences. It could be done through sex education in

schools.

The Committee recommended some modification of definition

of “child”, “shared household”, “special court” and

“aggravated penetrative sexual assault”. It also stated

that a “gang” should be defined and the list of possible

places where assault could take place be expanded to

include religious institutions.

The Bill states that if the child is between 16 and 18

years, it shall be considered whether consent for the act

26

was taken against his will. The Committee was of the view

that if the child is defined to be below 18 years, the

issue of consent should be treated as irrelevant.

According to the Bill, penetrative sexual assault shall

be considered to be aggravated if it causes the child to

become mentally ill or mentally unfit to perform regular

tasks. The Committee advised that this provision be

modified to define mentally ill according to the Mental

Health Act, 1987. Some provisions specifically protecting

Scheduled Castes and Scheduled Tribes children be

included.

The Committee recommended that the Bill include

provisions to protect victims of child trafficking for

sexual purpose since there is no exclusive legal

mechanism for curbing the practice. It pointed to the UK

Sexual Offences Act, 2003 which contains provisions on

trafficking.

If an offence is committed under this Bill, it shall be

reported to either the local police or the Special

Juvenile Police Unit. The Committee proposed that Child

Welfare Committees should also be allowed to receive

complaints.

The Bill makes it mandatory for any person (including a

child) to inform the designated authorities if he

apprehends that an offence is going to be committed.

However, the Committee felt that such a provision would

be too farfetched and difficult to assess. Therefore, it

recommended that this provision be relooked. It also felt

27

that penalising a person for not reporting may be

counter-productive given the social stigma attached to

the issue. The Committee advised that mandatory reporting

be confined to designated authorities such as child care

custodian.

The Committee recommended that the media be prohibited

from reporting the identity of the victim categorically

in line with the Juvenile Justice Act. The Committee

proposed that the ‘Procedures for recording statement of

the child’ be made more extensive in line with the

guidelines given by the Delhi High Court in 2007 and

NCPCR. Children’s courts, set up under the Commission for

Protection of Child Rights Act, 2005, should try offences

too so that there are no multiplicity of institutions.

The Committee was of the view that Special Courts should

not have the discretion to decide about compensation to

the child victim. Compensation should be awarded in each

case and a part of the amount should be paid by the

perpetrator. Alternatively, a Fund may be set up under

the state government or the court for the purpose. Each

penalty clause should specify a minimum amount of fine.

Also, the Rule making clause should indicate specific

areas where Rules are required to be framed.

Conclusion

The right to protection includes freedom from all forms

of exploitation, violence, abuse, and inhuman or degrading

treatment. There are around 250 legislations in India that

28

directly or indirectly deal with children15. Laws on child

sexual abuse and exploitation, corporal punishment, surrogacy

and reproductive tourism, adoption, surrogacy, cyber crimes

against children, education and child labour, have to be

reformed and formulated. It is a matter of concern that the

prevention, rehabilitation and compensation of child victims

have still to be incorporated in various legislations.

We are moving towards the standards set by international

laws. Now, it is important to monitor and enforce the laws.

What is required now is that the spirit of the laws be

inculcated among the law-makers, law enforcers and civil

society so that children get justice.

It must be ensured that these laws do not simply remain on

paper, as child rights are nonnegotiable.

Children must be considered as citizens with rights guaranteed

to them under the Constitution of India, and the national and

international laws. The State infrastructure and services for

children need to be enhanced and improved. The major

15 Some major policies and legislations issued in the country to ensurechildren’s protection and improvement in their status include the Guardianand Wards Act, 1890; Factories Act, 1954; Hindu Adoption and MaintenanceAct, 1956; Probation of Offenders Act, 1958; Bombay Prevention of BeggingAct, 1959; Orphanages and Other Charitable Homes (Supervision and Control)Act, 1960; National Policy for Children, 1974; Bonded Labour System(Abolition) Act, 1976; Child Marriage and Restraint Act, 1979; ImmoralTraffic Prevention Act, 1986; Child Labour (Prohibition and Regulation)Act, 1986; National Policy on Education, 1986; Prevention of IllicitTraffic in Narcotic Drugs and Psychotropic Substances Act, 1987; NationalPolicy on Child Labour, 1987; Infant Milk Substitutes, Feeding Bottles andInfant Foods (Regulation of Production, Supply and Distribution) Act, 1992;National Nutrition Policy, 1993; Pre-natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act, 1994; Persons with Disabilities(Equal Protection of Rights and Full Participation) Act, 2000; JuvenileJustice (Care and Protection of Children) Act, 2000; National HealthPolicy, 2002; National Charter for Children, 2004; and National Plan ofAction for Children, 2005.

29

significance of the Convention on the Rights of the Child and

other international instruments ratified by India is that it

represents a commitment to improving the situation of children

in India. Thus, they can be used by public advocates to force

the government to take action on child issues.

Awareness of the rights and laws by various stakeholders

including children is essential. We have to recognize the

enormity of the problem, and tackle it politically, legally,

and socially with significant commitment from the State and

civil society. The effects of the processes of globalization,

privatization and liberalization on children must be seriously

considered and addressed. The negative linkage of

globalization and privatization on the rights of children in

several countries across the world needs to be examined.

Today, the country is registering 8-10 per cent growth and

claiming that it would become a world economic power by 2020.

Can we, however, become a world economic power with our

children being abused, exploited

and trafficked, and their rights violated?16

16 The Legislative and Institutional Framework for Protection of Children inIndia by Asha Bajpai.