The term child usually includes the age group between 0-18 years of age. The
United Nations Convention on the Rights of the Child defines a child as," A
human being below the age of 18 years unless under the law applicable to the
child, the majority is attained earlier."
India at present has a total population of 1.39 billion which amounts to 17.5%
of the total population of the world. Out of these 1.39 billion people, 42% are
children that is under 18 years of age. India is home to 19% of the total
children in the world. Even though being home to such a large population of
children, India lags severely behind in terms of strict Child Sexual Abuse laws.
Child sexual abuse (CSA) 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
for which the child is not developmentally prepared and cannot give consent, 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 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 sexual
- The exploitative use of a child in prostitution or other unlawful sexual
- The exploitative use of children in pornographic performances and
Until recently, Child sexual abuse was not even majorly recognized as a criminal
offense in India; rape was the main if not only, specific sexual offense
recognized in India. In 1992, India ratified the United Nations Convention on
the Rights of the Child. Under this convention, India promised to protect its
children from all categories of sexual abuse and exploitation.
In 2012, the POCSO act was passed after rigorous efforts by several activists,
non-governmental organizations, etc. Before 2012, India was in a state of vacuum
in terms of laws related to dealing with child sexual abuse.
Laws Relating To Child Sexual Abuse Before 2012
- United Nations Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child was adopted by
United Nations General Assembly in 1989. The convention states the required
guidelines to make the world a better place for children (under 18). It
includes different essential rights including the right to education, right
to sanitation, right to protection from mental and physical abuse,
protection from rape and sexual exploitation, etc.
The convention is ratified by 194 countries. The United Nations Convention
was ratified by India in 1992 thereby binding itself to several regulations
and norms. These norms also include measures against child sexual abuse
which are applicable in India as well.
- Article 34 of the convention states to protect the children from:
- Sexual exploitation
- Inducement to engage in any unlawful sexual activity
- Use of children in prostitution
- Use of children in pornographic performances.
- Article 19 of the convention states to take legislative, administrative,
social and educational measures to protect from all forms of:
While in the care of parents or any other person who has the care of the
- Injury Or Abuse
- Mal-Treatment Or Exploitation, Including Sexual Abuse.
IPC Sections Prosecuting Child Sexual Abuse
Before any act was enacted specifically for the prosecution and regulation of
child sexual abuse cases, such cases were governed under IPC sec. 354, 375.
However, all of these sections contained certain ambiguities or flaws as a
result they could not provide effective protection to children.
- Section 354: Assault or criminal force on woman with intent to outrage her
Section 354 of IPC deals with outraging the modesty of a woman by the use of
criminal force or assault. The section although deals with 'outraging modesty'
fails to define the word 'modesty', as well as only, mentions women and not men.
This leaves men out of the spectrum of receiving justice.
- Section 375: Rape
Section 375 defines rape and provides circumstances falling under the act of
rape. The major flaw with the section is that just like sec. 354 it also only
mentions women and fails to mention men.
Goa Children's Act, 2003
Goa Children's Act was brought in 2003 with the motive to promote, protect and
preserve the best interest of children in Goa. Goa emerged as the first state in
India to bring a law specifically for the protection of children including
provisions relating to sexual abuse.
The act extended to the whole of the state.
It specified that 'The State shall ensure that children are protected from child
abuse, sexual offenses, child trafficking, child prostitution and violation of
their rights against exploitation and that they are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
Section 8 of the act deals with the prescription of punishment in case of sexual
abuse against children. Clause 2 of sec. 8 provides:
- Whoever commits any sexual assault as defined under the act, shall be
punished with imprisonment for a term that may extend to 3 years and a fine
- Whoever commits a grave sexual assault shall be liable for a punishment
of at least 7 years which can be extended up to 10 years and a fine of Rs. 2,00,000.
- Whoever commits incest shall be liable for a punishment of 1 year and a
fine of Rs. 1,00,000.
Some other punishments for different instances were also included. The act even
though might not have been as comprehensive as some of the laws present today
but was definitely a major step in the right direction.
Pocso Act, 2012
Various efforts by different Non-Governmental Organisations and the Ministry of
Women and Child Development created a lot of momentum regarding the absence of
laws around child sexual abuse. This set-in motion the driving force for the
acknowledgment of the concerned issues and media attention. Such efforts made by
the Ministry of Women and Child development led to the drafting and
implementation of POCSO (Protection of Children against Sexual Offences Act) in
POCSO act defines and criminalizes sexual assault, child pornography, sexual
harassment, penetrative sexual assault, etc. involving a child i.e., someone
below the age of 18 years. The act also mandates the setting up of special
courts for the feasible proceeding of the cases under POCSO. POCSO has been a
major step in protecting children from sexual abuse as it provides for harsh and
rigorous punishments based on the severity of the crime. Punishments under the
act range from simple to stringent including life imprisonment and even death
sentence under certain circumstances.
Section 5 and section 9 of the act define 'aggravated' penetrative sexual
assault and non-penetrative sexual assault, which when performed by people
belonging to several different categories such as police officers, members of
the armed forces or security forces, public servants, management staff of jails,
hospitals, educational institutions, etc. and under various circumstances
attract even more harsh punishments. This includes inflicting children with
serious sexual assault thereby causing a child to become pregnant, causing
grievous hurt or bodily injury, infecting the child with the HIV virus, etc. The
definitions provided under the act are very elaborative and comprehensive in
nature and cover most of the aspects of child sexual abuse.
Apart from this the act also covers a wide array of aspects related to the use
of children for pornographic purposes and the storage of pornographic material
including children. The instances covered under the act are extremely expansive
in nature ranging from usage of the material on the internet or in electronic
form to printed form as well. It also prescribes punishment whereby if a person
fails to delete or destroy the pornographic material or stores it for the
purpose of telecasting or dispersing it except for the purpose of reporting or
for use as evidence in court, shall be subject to fine or imprisonment whichever
might be appropriate under the circumstance.
The distinguishing feature of the POCSO act is that it not only punishes the
attempt (sec.18) but also the abetment (sec.17) to commit an offense. Not only
this but it also prescribes under sec. 29 that under certain circumstances the
accused will be presumed guilty until proven innocent. The act also puts forward
several guidelines keeping in mind the protection of children from being exposed
to the strenuous proceedings of law.
Section 36 of the act specifies that the
child shall not be brought before the accused at the time of providing evidence
while keeping in check that the accused is capable of hearing the child's
testimony and speaking with his defense attorney. In addition to this, sec.23
establishes that apart from certain circumstances the identity of the child has
to be kept as a secret and not to be revealed. Such specifications are intended
to reduce the trauma faced by the child and promote enjoying a normal life.
The setting up of Special Courts under sec.28 plays an important role in setting
the act apart and making it more child friendly. In order to make it more
favorable sec. 33 gives special courts the authority to allow the child to take
frequent breaks during the proceedings, provide a child-friendly environment by
allowing a family member or other trusted adult to be present in court, and
ensuring that the child is not called to testify in front of the court on a
regular basis or avoid aggressive questioning. For speedy trial, the POCSO act
states that within 30 days of the special court receiving notice, the child's
statement must be recorded. and complete the proceeding within a year as far as
The POCSO act as a whole has been a major step towards safeguarding the rights
of the children of the country and also the fact that it is gender neutral
provides adequate attention to male children of the nation who have been
side-lined and debarred of justice.
Major Impediments With The Pocso Act
Although the POCSO is highly progressive and acknowledged countrywide, there are
still several problems with the implementation and functioning of the act.
Therefore, certain complications and ambiguities with the act have been
- Determination Of Age:
A major problem associated with the functioning of the POCSO act has been the determination of the age of the minor. The act is silent
on the fact that which documents should be preferred to determine the age of the
victim even though it plays a crucial role in the outcome of the charges and
trial proceedings. In Jarnail Singh v. State of Haryana: AIR 2013 SC 3467,
the Supreme Court held that the age of a child, who is the victim, has to be
determined on the basis of section 12 in The Juvenile Justice (Care and
Protection of Children) Rules, 2007 which holds that preference should be given
to the school documents of the child while determining the age.
If other documents apart from the ones provided by the school are submitted,
then the child has to undergo a bone ossification test, which in most cases
provides a rough estimate of the age of the child. But the process of bone
ossification is very complicated and at times time-consuming as well and the
results aren't necessarily accurate. Therefore, the provisions of the POCSO act
have to be much clearer regarding the documents which will be preferred to
determine the age of the child and whether the accused can be given the benefit
of the doubt if the medical testing can't make a proper determination.
- Mandatory Reporting:
The POCSO act's Section 19 sets a need for reporting
child sexual abuse to police and other law enforcement authorities in case
someone has knowledge of such an act being committed or even when there is only
an apprehension. This includes any citizen of the society and especially those
working in close relation with children in education, social, health, and
religious affairs. Punishments have also been prescribed when a failure to
report such instances occurs. These punishments can range from six months to one
year of imprisonment or fine or both.
Although mandatory reporting has been included as a measure to help voice the
children in need, it is resulting in more pitfalls and trauma for the victims.
Most of the victims who were hesitant in coming forward and reporting the crime
were the ones who described their surrounding society to be patriarchal or
insensitive. They were also concerned about the stigma around sexual abuse and
its reporting and the blame they would have to deal with if the offense was not
proven. Also, in many a case, the assaulter is also the breadwinner of the
family. Hence, the unwillingness is due to the reality of dealing with survival
and sustaining the needs of the family in the absence of the sole breadwinner.
Mandatory reporting also puts medical practitioners in a state of quandary. On
one hand, they are bound to report any instances of child sexual abuse that they
come to know of regardless of the consent of the victim, and on the other hand,
mandated to maintain the confidentiality of the patient and their right to
privacy. They are forced to violate the trust of the child even if the child
does not want to report the abuse in case they want to avoid stigmatization and
- Age Of Consent:
A major issue with the POCSO act is that it does not
recognize the consent given by minors. Under the spectrum of POCSO, a lot of
young couples involved in consensual sexual activities find themselves tangled
in the criminal justice system. Since the consent of minors is considered
invalid, consensual activities also come under the purview of rape or sexual
abuse. In most of these cases, the male child/men are charged under various
sections, while the females are treated as victims in spite of their consent.
This strips teenagers of their bodily autonomy and treats them as property of
the state and also creates a stigma around adolescent sexual relationships.
Also, many times this practice can impose a lot of trauma and mental stress over
the male child/man who has been falsely accused of rape even though it was
consensual. It also impacts the justice delivery system of the country as courts
get overburdened by such cases and divert the required attention from the
investigation and prosecution of actual cases of child sexual abuse. Hence, a
lot of times it is observed that the POCSO is not in sync with societal
Pocso Amendment Act, 2019
The Protection of Children from Sexual Offences (Amendment) bill 2019 was first
introduced in Rajya Sabha by the Minister of women and child development, Ms.
Smriti Zubin Irani on July 18, 2019. On July 24, 2019, the Rajya Sabha approved
it, and on August 1, 2019, the Lok Sabha did as well. The bill was brought to
make the provisions under the POCSO act even more strict. The death penalty was
added and some new offenses were also introduced such as child pornography.
Along with this, the provisions for some older offenses were also widened.
Important Related Cases
- Penetrative Sexual Assault:
A person is considered to have committed
penetrative sexual assault under Section 3 of the POCSO Act if they place their
penis within the child's mouth, urethra, vagina, or anus; inserts any item into
any area of the child's body; applies or places his tongue on any part of the
Before the 2019 amendment, the punishment prescribed under the act was a minimum
of 7 years and could be extended to life imprisonment and fine. The bill,
however, increased the period of minimum punishment from 7 years to 10 years. In
addition to this, the bill also stated that if a person commits penetrative
sexual assault against someone who is under 16 years of age, such person shall
be punished with a minimum imprisonment of 20 years and it could go up to life
- Aggravated Penetrative Sexual Assault:
Aggravated Sexual Assault is defined
under section 5 of the act as the performance of penetrative sexual assault by a
person of authority such as police officers, members of the armed forces, etc.
resulting in the child getting pregnant or contracting the HIV virus and such.
The amendment bill expanded the definition of aggravated penetrative sexual
assault by including two additional reasons. These are:
The punishment for aggravated penetrative sexual assault which prior to the
amendment was a minimum of 10 years to life imprisonment was increased to a
minimum of 20 years which may extend up to the death penalty.
- A sexual assault that results in the death of the child.
- A sexual assault committed during a natural calamity.
- Aggravated Sexual Assault:
Aggravated sexual assault is defined under the sec.
9 of the POCSO act. When someone makes sexually suggestive physical contact with
the breast, penis, anus, or vagina without intending to penetrate, that behavior
is referred to as "sexual assault.". Such actions when performed by people
holding special authority are termed aggravated sexual assault. The definition
of section 9 was further expanded by adding two more provisions:
- An assault committed against a child during a course of natural calamity.
- Whoever persuades a child to get administered or administer any sort of
hormone or injects any chemical substance into the child with the intent
that the child attains sexual maturity at an early stage.
- Pornographic purposes:
Sec. 13, 14, and 15 of the act deal with the use of
children for pornographic purposes, punishment for the same, and punishment for
the storage of pornographic material involving children. The provisions and the
scope of definitions remained the same as it was in 2012 but the dimensions of
the punishment were changed and made more stringent under certain circumstances.
- The punishment for the use of children for pornographic purposes was 5
years. This has been increased to a minimum period of 5 years and the
maximum period is upon the discretion of the court.
- The punishment for the use of children for pornographic purposes which
results in the child facing aggravated penetrative sexual assault was life
imprisonment with no minimum limit. The bill added a minimum limit of 20
years which can extend up to life imprisonment or the death penalty.
- Storage of Pornographic material:
The punishment for the storage of
pornographic material has been prescribed under section 15 of the act. The act
specified that the storage of pornographic material for displaying or
transmitting shall be punished with imprisonment that may extend up to 3 years
and fine with no minimum limit. The new amendment set up the limit for minimum
imprisonment at 3 years which can be extended up to 5 years. Along with this,
the bill also included two more offenses within the spectrum of storage of child
pornographic material. These are:
The amendment bill puts forward a much more stringent framework to help prevent
sexual abuse against children. It acts as a deterrent by putting forward much
more strict punishments as compared to before and increasing the inclusivity of
- Failure of destruction, deletion, and reporting of pornographic material
- Sending, showing, or disseminating the content, unless it is for
A major standout point of the bill is that it is
gender-inclusive and does not discriminate between children belonging to any
gender be it cis male, trans male, cis female, trans female, or any other
gender. The bill also suggests the death penalty in cases of aggravated
penetrative sexual assault.
This step can help engrave fear of the law in the
hearts of people and prevent them from committing such actions. Therefore, it
can be said that the POCSO (amendment) act, 2019 has made tremendous efforts to
make the act more in tune with the current requirements of society.
- Attorney General for India v. Satish and another, AIR 2021:
In the judgment of Attorney General for India v. Satish and another, the Hon'ble
Supreme Court heard the appeals filed by the Attorney General of India, the
National Commission for Women, and the State of Maharashtra against two
judgments passed by the Bombay High Court. Under the judgments, the Bombay High
Court ruled that skin-to-skin contact is essential for an offense of sexual
assault to be established under the POCSO Act.
To understand the rationale behind the decisions and judgments made by Supreme
Court in the Attorney General for India v. Satish and another, we need to look
at the factual matrix of the two Bombay High Court judgments.
- Satish v. State of Maharashtra (2021):
In this case, the victim, aged 12
years old, had been lured by the accused to his house on the pretext of giving
guava. The accused then pressed her breasts and tried to remove her salwar and
when the victim started shouting, the accused pressed her mouth. The complaint
was lodged against the accused by the mother of the victim. The special court
convicted Satish under sec. 342, 354, and 363 of the Indian Penal Code, 1860,
and sec. 8 of the POCSO Act, 2012.
The accused filed an appeal against the said order under the Bombay High Court.
Justice Ganediwala presiding over the case acquitted the accused under sec. 8 of
the POCSO Act and charged him with minor offenses under sec. 342 and 354 of the
IPC. The judgment was made on the grounds that whether the top was removed or
whether the accused inserted his hands inside the top of the victim was not
specific and in the absence of such facts the act would not fall under the
purview of 'sexual assault'.
- Libnus v. State of Maharashtra (2021):
In this case, the accused entered
the house of the victim, aged 5 years, knowing that her mother and father were
not present. The accused then caught her hands, moved her frock upward with one
hand, and lowered his pants with the other hand. He, thereafter, unzipped his
pants and showed his penis to the victim, and asked her to lay down on the
The incident was reported by the mother of the victim. The convict
was accused of the offenses punishable under sec. 448 and 354-A(1)(i) of IPC and
sec. 8, 10, and 12 read with sec. 9(m) and 11 of the POCSO Act by the Special
The accused, Libnus, filed an appeal against the order under the Bombay High
Court. High Court set aside the convictions charged under sec. 8 and 10 of the
POCSO Act and maintained the ones under sec. 354(1)(i) and 448 of the IPC act
read with sec. 12 of the POCSO Act.
The High Court cited the ejusdem generis concept, which refers to any other act
and includes the characteristics of acts that are identical to the conduct
specifically listed under sec. 7. The acts of 'holding the hand of the victim'
or 'opening up the zip of his pants', in the opinion of the court, do not fit
under the purview of the definition of sexual assault.
The Supreme Court quashed the judgments of the High court and both
accused Satish and Libnus were directed to surrender themselves before the
concerned special court. The Supreme court held that any act executed with
sexual intent involving physical contact with no signs of penetration would
amount to sexual assault under sec. 7 of the POCSO act and skin-to-skin contact
is not essential for establishing the offense of sexual assault.
- Alakh Alok Srivastava v. Union of India and Others, AIR 2018:
The petition dealt with two issues. The first issue was related to
an eight-month-old female child who had become a victim of a crime committed
under the POCSO Act, 2012 and the second issue was regarding the speedy disposal
of cases under the POCSO Act and that too in child-friendly ways as prescribed
under the act. The issues were brought before the Supreme Court as a writ
petition. Under the petition, Supreme Court ruled out the guidelines that had to
be followed by special courts while dealing with cases under the POCSO Act.
The first prayer dealt with the treatment of an eight months old female
child who was the victim of a crime under the POCSO Act. A team of doctors
belonging to the All-India Institute of Medical Sciences was sent to check up on
the child. The examination revealed no abnormality and the child was stable. The
consent of the family of the child was taken and she was transferred to AIIMS
for further treatments and check-ups.
The second prayer dealt with the speedy disposal of cases and the enormous
number of cases pending before the court under the POCSO Act. A graphic report
detailing the number of cases pending in various states was submitted by the
petitioner. under the act and asked for the intervention of the Hon'ble Supreme
Court and sensitivity in matters related to the legislation.
The Supreme Court issued the following guidelines to be followed
during the proceedings of cases under the POCSO Act:
- The High Courts must make sure that the Special Courts handle and decide
the cases that are being handled under the POCSO Act and that the officers
concerned with these cases are sensitive enough to deal with matters of
child protection and psychological response.
- The Special Courts, if not already, should be established and ought to
be charged with handling the cases brought under the POCSO Act.
- Instruction should be issued by higher courts to the Special Courts that
proceedings should be handled in a fast-track manner without any unnecessary
adjournments and in a time bound manner as laid down under the POCSO Act.
- The POCSO Act trials should be governed by a three-judge committee that
will be created by the chief justice of the High Courts. In the event that three
judges are not accessible, the chief justice should appoint a bench of one
- The Director General of the Police or officers of the equivalent rank of
each state should formulate a task force that shall inform that the
investigation is being continued properly and the required witnesses are
being presented before the courts on the dates fixed.
- In order to ensure that the spirit of the act is upheld, High Courts
must take the necessary steps to make the Special Courts a child-friendly
The term 'sexual abuse' still holds a lot of taboo in our society but the POCSO
Act has made tremendous efforts in tackling and reducing the extent of this
thinking. Ever since the implementation of the act, the number of cases reported
under the category of child sexual abuse has extensively increased representing
an upward trend in the mentality of society.
The act has not only educated
people but also sensitized them on the mentioned topic and has made reporting
child sexual abuse not only admissible but also obligatory. POCSO as an act is
extremely unique in terms of Indian society keeping in mind the vacuum faced
under the category of child sexual abuse laws prior to 2012. It is also very
comprehensive and inclusive in nature. The act does not discriminate between
children of different genders be it cis male, cis female, trans male, trans
female, etc., thereby eradicating the ideology that only females are the
Although along with the several mentioned advantages, the act also deals with
various impediments and loopholes. There is a major need for the effective
enforcement of the act at different levels. A multidimensional approach is the
requirement of the day which will necessitate the joint efforts of the
government authorities both at the central and state level, police forces,
judicial system, medical body, etc.
This will help in the implementation of the
act in its true spirit and help eradicate certain loopholes. Speedy trials and
child-friendly proceedings are imperative and guidelines put down by the Supreme
Court under the Alakh Alok vs. Union of India
, 2018 should be effectively
Apart from this, the above-mentioned impediments such as the age of consent,
mandatory reporting, determination of age, etc. should also be dealt with. Also,
POCSO should also try to acknowledge the aftermath of the trial and the trauma
that is faced by the children. Efforts should be made to provide the much-needed
psychological help to the children as well; especially in instances where the
abuser is a relative or someone known to the victim.
Further police officers and
officials dealing with the victims should be provided proper training. This will
provide the children with the required emotional support and help them in
opening up about the problems and abuse that they faced.
POCSO presents a mixed bag of results. On one hand, it is very progressive and
inclusive in nature but on the other hand, presents some major problems. The
need of the hour for POCSO is to keep evolving and matching its pace with the
ever-changing society of India.
- WHO, Report of the consultation on child abuse prevention, Geneva, World
Health Organization, 1999, p. 15