Protection of Children from Sexual

Offences Act, 2012

The issue of Child Sexual Abuse is widespread across India, impacting children of all ages, socio-
economic classes and genders. Half of the country’s children face some form of abuse, Reports 1
estimates that in 2015, close to 1.7 billion children in the world had experienced inter-personal violence
in a previous year. This figure includes 1.3 billion boys and girls who experienced corporal punishment at
home, 261 million schoolchildren who experienced peer violence, and 100,000 children who were
victims of homicide in a previous year. In addition, it includes 18 million adolescent girls aged 15–19 who
had ever experienced sexual abuse, and 55 million adolescent girls in the same age group who had
experienced physical violence since age 15. Almost half of the Indian children face some kind of abuse
and 21% of them face severe sexual abuse. Boys account for 53% of all reported sexual abuse while girls
account for 47% of reported sexual abuse. 2

To combat these issues The Protection of Children from Sexual offences Act, 2012 was enacted to
provide a robust gender-neutral Statute for prevention of sexual exploitation, harassment, abuse,
assault of children in India while safeguarding the interest of the child at every stage of the judicial
process. POCSO received the President’s assent on 19 June 2012 and was notified in the Gazette of India
the very next day on 20th June. The main features of this act include:-

 Defines Child3 as any person below the age of eighteen years;

 It is a gender neutral law, wherein the law takes cognizance of sexual crimes committed against
both girls and boys under the age of 18 years.
 Addresses a wide range of sexual offences which include anything from complete and partial
penetration, non-penetrative sexual assault, stalking of a child, showing children pornography,
using the child for pornography and exhibitionism. The law protects children from both contact
and non-contact sexual abuse.
 Prosecutes any person regardless of age or gender for engaging in a sexual act with a child
irrespective of whether the latter consented to it and provides for more severe punishment
when the offence is committed by person in position of trust or authority.
 Pronounces the importance of mandatory reporting of sexual offences.

1
Ending Violence in Childhood: Global Report 2017
2
Child Abuse Report, Women and Child Development India, 2007
3
Section 2 (d) of Pocso act, 2012.
 IMPORTANT CASE LAWS BEFORE THE ENACTMENT OF
POCSO 2012

1. Gaurav Jain vs. Union of India and others.4

A writ petition was filed pleading for separate schools and hostels for children of prostitutes. It was
contended that since these are in fact children of prostitutes they must be given a separate home away
from their mothers’ profession along with a chance to mingle with the society as all children should.

JUDGEMENT:- The court ordered to Set up a Committee consisting of 4 Advocates and 3 Social Workers
to look into the matter and directing listing of the matter. The Honorable Justice Mishra also stated “We
are of the view that instead of disposing of this writ petition with a set of directions, a Committee should
be constituted to examine the material aspects of the problem and submit a report containing
recommendations to the Court on the basis of which further orders can be made. We accordingly direct
that a Committee for such purpose shall be set up and it shall examine the matter from various angles of
the problem taking into consideration the different laws relevant to the matter and place its report
before the Court within eight weeks from now.”

On receipt of the Committee’s report the court held that “Children of prostitutes should not be
permitted to live in inferno and the undesirable surroundings of prostitute homes. This is particularly so
for young girls whose body and mind is likely to be abused with growing age for being admitted into the
profession of their mothers. While separate schools and hostels for prostitute children are not desirable,
accommodation in hostels and other reformatory homes should be adequately made available to help
segregation of these children from their mothers living in prostitute homes as soon as they are
identified.” The Court directed the Ministry of Welfare, Deptt. of Women & Child Development
functioning under the Union of India to deposit a sum of Rs.20,000 within two weeks to meet the
expenses of the Committee.

2. Sakshi vs. Union of India (UOI) and Others. on 26/5/20045

This was one of the most important cases related to judicial proceedings in cases of child sexual abuse as
well as to give proper definition to terms such as “Rape” in sections 375/376 and expanding its coverage
to provide protection to a victims of several different kinds of sexual offences as these victim suffer no
less than victims of “rape” in terms of IPC and these other sexual offences are generally covered under
sections 354 and 377. The existing trend of the respondent authorities was to treat sexual violence,
other than penile/vaginal penetration, as offences tailing under Section 354 of the IPC as outraging the
modesty of a women or under Section 377 IPC as unnatural offenses, and not as a sexual offence under
Section 375/376 IPC.
4
Citations : 1990 AIR 292 1989 SCR Supl. (2) 173 1990 SCC Supl. 709 JT 1989 (4) 315 1989 SCALE (2)1126
5
AIR 2004 SC 3566, 2004 (2) ALD Cri 504
JUDGEMENT:- The writ petition was well appreciated as the court stated “The suggestions made by the
petitioners will advance the cause of justice and are in the larger interest of society. The cases of child
abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore,
urgently required. We hope and trust that the Parliament will give serious attention to the points
highlighted by the petitioner and make appropriate legislation with all the promptness which it
deserves.” The honorable Bench also gave the following directions related to providing protection to a
victim of sexual abuse at the time of recording his statement in court.

(1) The provisions of Sub-section (2) of Section 327 Cr.P.C. shall, in addition to the offences mentioned in
the sub-section, would also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) 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, in so far 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

IMPACT: - The legacy of this judgment is still relevant today as each case following this judgment follows
the same guidelines related to providing protection to a victim of sexual abuse at the time of recording
his statement in court as established. This judgment along with many others of the same kind 6 were
pioneers in making sexual assault related as strict and robust as they are today.

6
Vishakha vs. State of Rajasthan and other similar case
 Landmark judgments and recent cases

1. Independent Thought vs. Union of India on 11th October, 20177

This case holds significant importance as it was one of the most impactful cases related to Protection of
children from sexual Abuse and prevention child marriage in the year 2017 as it dealt with a topic where
the provisions of I.P.C. and POCSO ACT clashed with each other.

BACKGROUND: - Independent Thought, one of the leading NGOs which dealt with child rights filed a
Public Interest Litigation (PIL) in Supreme court of India challenging the constitutional validity of
exception 2 of Section 375 of I.P.C. 1860. This provision of I.P.C. stated that sexual acts or sexual
intercourse by a man with his own wife, wife not being under 15 years of age is not rape. This violated
the fundamental rights of girl child including article 14, 15 and 21 of the Constitution of India as well as
being directly in contradiction with multiple provisions as well as ethos of POCSO act which states that
all sexual acts with minor (below the age of 18 years) are punishable according to sections 4, 6, 8, 10 and
12 of the same act.

JUDGEMENT:- In the judgment the learned judge opined that sexual intercourse with a girl below 18
years of age is rape regardless of whether she is married or not. It was also stated that such exception in
Indian rape law negates the very purpose of Prohibition of Child marriage Act, 2006. The exception
carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an
unmarried girl child and has no rational nexus without any clear objective sought to be achieved. This
exception also creates an apparent conflict or incongruity between the provisions of the IPC and the
POCSO Act. The rape of a married girl child (a girl child between 15 and 18 years of age) is not rape
under the IPC and therefore not an offence in view of Exception 2 to Section 375 thereof but it is an
offence of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and punishable
under Section 6 of that Act. This conflict needs to be resolved in the best interest of the girl child and the
provisions of various complementary statutes need to be harmonized to present a comprehensive and
cohesive legal structure.

The honorable judge stated “There is no doubt that pro-child statutes are intended to and do consider the
best interest of the child. These statutes have been enacted in the recent past though not effectively
implemented. Given this situation, we are of opinion that a few facts need to be acknowledged and
accepted. Firstly, a child is and remains a child regardless of the description or nomenclature given to
the child. It is universally accepted in almost all relevant statutes in our country that a child is a person
below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a
surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether
she is a married child or an unmarried child or a divorced child or a separated child or widowed child”.

Thus this case puts primarily focus on one of the most important provision of POCSO ACT that is section
42-A. This section specifies all the provisions of POCSO act are in addition to and not in derogation of
the provisions of any other law in force including I.P.C. Moreover, the section provides that in the
7
AIR 2017 SC 4904
event of any inconsistency between the provisions of the POCSO Act and any other law, the
provisions of the POCSO Act shall have overriding effect. Thus The Supreme Court gave the order to
criminalize the sexual intercourse with a minor wife aged between 15 and 18 years of age stating that this
is the only pragmatic option to harmonize the system of laws relating to children.

IMPACT:- The decision was generally well received, Common consensus being that it restores balance
by striking down the IPC exception which was in contravention with the obligations imposed by
international instrument searches United Nations convention on the rights of the child (CRC) and the
convention for the elimination of all forms of discrimination against women (CEDAW) as well being in
contravention with Prevention of child marriage act, 2006 as it was seen as legitimizing the practice of
child marriage. Although it raised few questions as the decision remains quiet on the matter of marital
rape of adult women as the court stated “we make it clear that we have refrained from making any of
observation with regards to marital rape of women who is 18 years of age and above since that issue is
not before as at all. Therefore we should not be understood to advert to that issue collaterally”. This case
and issue also gained a lot of attention as it was supported by Nobel Laureate Kailash satyarthi and his
Bachpan Bachao Andolan.

2. Dr. Sr. Tessy Jose vs. The State Of Kerala on 1 August, 20188
This case is very important as it gives priceless Insight into Section 19(1) and 21(1) of POCSO Act, 2012.
The interpretation of these sections helped in adjudication of future cases of similar kind as this case
clarifies many of the terms used in the provision as well as the meaning and intention behind them. This
case was filed in the aftermath of the infamous Thalassery rape case where a parish priest Vadakkancheril
Mathew alias Robin Vadakkancheril was accused of and later convicted of raping and impregnating a 16
year old girl and several other women but here the appellant were nuns and nurses, who were charged
with the aforementioned sections while providing required treatment and care to the victim while she
gave birth to her baby. This appeal was filed in The Supreme Court where it was heard by Justice
A.K.SIKRI.

BACKGROUND:- Father Robin had raped the victim when she was a minor (16 years of age) in the
year 2016. As a result, she became pregnant. As per victim’s mother, when the victim started complaining
about pain in her stomach, thinking it to be some problem related to stomach, she brought her to the
hospital where the appellants were working, on 7th February, 2017. It was found that the victim was in
advance stage of pregnancy. In fact, soon after she was brought to the hospital, she went into labour. She
delivered the child. Insofar as the appellants are concerned, their role is that they attended to the victim.
Appellant no. 1 is a 66 years old lady who is a Gynecologist and had conducted the delivery. Appellant
no. 2 is a Pediatrician who had attended to the baby of the victim after the delivery. Appellant no. 3 is a
69 years’ old Hospital Administrative. She was roped-in in that capacity though she did not attend to the
victim or the baby. However, the charge against these appellants is primarily on account of purported
commission of an act under Sections 19(1) of POCSO Act. This Section reads as under:

8
2018(4) RCR(Criminal) 114
“Section 19 (I) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person
(including the 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—

(a) the Special Juvenile Police Unit; or

(b) the local police

JUDGEMENT:- As is clear from the aforesaid provision, a person who had an apprehension that an
offence under the said Act is likely to be committed or has knowledge that such an offence had been
committed would be required to provide such information to the relevant authorities. Thus, what was
alleged against the appellants is that they had the knowledge that an offence under the Act had been
committed and, therefore, they were required to provide this information to the relevant authorities which
they failed to do. It was concluded by honorable Justice A.K.SIKRI that no such conclusion could be
drawn from the records and arguments presented by the prosecution. The statement of the mother of the
victim and the statement of the victim was recorded by the police. They had not stated at all that when
they brought the victim to the hospital, her mother informed the appellants that she had been raped by the
accused when she was a minor and the victim’s age was recorded as 18 years old when she was admitted
into the hospital. The entire case set up against the appellant is on the basis that when the victim was
brought to the hospital her age was recorded as 18 years on that basis appellant could have gathered that
at the time of conception she was less than 18 years and thus a minor. Therefore the appellant should have
taken due care in finding as to how the victim became pregnant. Fastening the criminal liability on the
basis of aforesaid allegation is too far-fetched. The provision of section 19(1) puts legal obligation on
person to inform relevant authorities when he or she has knowledge that an offence under the act has been
committed.

The court opined that the term used here is “knowledge” which is information received from another
source and thus the appellants were not under any obligation to seek or gather information about the
victim’s pregnancy and they abided their professional duty by taking care of the victim and the new born.
If at all, the appellants were not careful enough to find the cause of pregnancy as the victim was only 18
years of age at the time of delivery. But that would not be translated into criminality. Thus these appeals
were allowed by The Honorable Supreme Court.

IMPACT:- This decision further reinforced the fact that these statutes are made to empower children, to
curb their exploitation and the honorable Judiciary of India would not allow frivolous use of these statutes
for harassment of dutiful innocent citizens of India. After this decision, the POCSO court also acquitted 6
accused - 5 nuns from the Christu Raj convent and 1 administrator who were accused of covering up the
incident for lack of substantial evidence and two years after the heinous rape case of a 16-year old from
Kannur came to light, the Thalassery POCSO Court has convicted Fr Robin Vadakkumchery of the
Mananthavady diocese, who was accused of raping and impregnating the minor in 2016. He was given
total of 60 years of rigorous imprisonment in the 3 separate sentences but was allowed to serve them
together thus going to jail for 20 years.
 3. Ms. Eera through Dr. Manjula Krippendorf Vs. State (Govt. of NCT of
Delhi) [21/07/17]
This case is one of the most interesting legal studies of Indian legal history as it deals with the subjects
which are rarely explored. This case raises perhaps some of the most interesting questions Related to
sexual assault and mental disability which reduces the mental ability of an adult person to that of a child
and ask the question whether these people should be treated as adults or minors. This case remains one of
the landmark cases of sexual assault against people with mental disability in India as well as exploring the
effects and extent of Protection of children from sexual offences Act, 2012.

BACKGROUND:- Eera, an intellectually disabled thirty-eight-year-old patient of cerebral palsy, was

allegedly raped. Represented by her mother, she argued that she should be allowed to avail herself of the
more victim-friendly procedures accessible to child victims under the Protection of Children from Sexual
Offences Act, 2012 (POCSO)9. The pivotal issue that emanates for consideration in this appeal, pertains
to interpretation of section 2 (d) of Protection of children from sexual offences act, 2012 (POCSO) and
MS. Eera and council argued that the definition in the aforementioned section which defines “Child” as
any person below the age of 18 years should engulf and engage in its connotative sense the mental age of
the person as determined by prevalent science pertaining to psychiatry so that an extremely intellectually
challenged person can be included in the holistic concept of a “Child” even though they have crossed the
biological age of 18 years. Ms. Eera was represented by her mother Dr. Manjula on the foundation that
she is suffering from cerebral palsy (R.   Hemiparesis) and, Therefore though she is biologically 38 years
of age, yet her mental age is approximately 6 to 8 years. It was urged by the appellant that a purposive
interpretation of the statute is invoked and to characterize POCSO as a beneficent legislation 10. Various
provisions of the Indian Penal Code, 1860 were also drawn on to emphasize that the legislature
understood issues of mental capacity as relevant to criminal justice 11.

On the other hand, the council for the accused referred to the meaning of the word ‘child’ in inter alia the
United Nations Convention on the Rights of the Child 1989, which contains no reference to mental age. 12
He, therefore, suggested that since the literal meaning of the provision was plain and intelligible, giving it
any other interpretation would “lead to ambiguity, chaos and unwarranted delay in the proceedings and
also it would have the effect potentiality to derail the trial and defeat the purpose of the Act, for the
informant will have the option to venture on the correctness of the mental age.

JUDGEMENT:- The Division Bench of the Supreme Court ruled against the petitioner (Nariman J.
concurring), holding that such an understanding of statute would run counter to the current law on

9
While this comment recognizes that those whose cases are prosecuted under POCSO may or may not be proved
to be ‘victims’, it nonetheless used the term ‘victims’ in recognition of the fact that most of the procedural
amendments discussed in this piece have been introduced to assist those who have, in fact, been victimized
10
The Eera case, ¶9.
11
draws a comparison between various provisions of the IPC where the legislature has recognized a person of
unsound mind to be on the same pedestal as child which indicates that IPC prescribes protection on the basis of
maturity of understanding, to the persons suffering from unsoundness of mind. (The Eera case, ¶9.)
12
Mr. Hegde, learned senior counsel, who has been engaged by the Court to assist on behalf of respondent No. 2,
has referred to Article 1 of the United Nations Convention on the Rights of the Child which has been acceded to by
India on 11.12.1992. Relying on the definition in the Black’s Law Dictionary and the Advanced Law Lexicon by P.
Ramanatha Aiyar, 3 rd Edn.
statutory interpretation. This consequently led to the culprit being punished under the charges of section
375 IPC. In the majority judgment, Misra, J, relied on the ‘text and context’ of the provision, bearing in
mind that a liberal interpretation would be more appropriate for a legislation that is intended to advance
social welfare or human rights. However, he found that to interpret age as including mental age would be
“tantamount to causing violence to the legislation by incorporating a certain words to the definition” and
would create “anomalous situations without there being any guidelines or statutory provisions.” The
reasoning was that, while POCSO requires us to assume that everyone below the chronological age of 18
years is incapable of consent, the same yardstick cannot be used for those with mental retardation, since
this can range from mild to severe impairment. However, consent is irrelevant in the case of those below
18 years of age because of the legal fiction that children below that age are unable to understand the
nature and consequences of the sexual act. This legal fiction is created to safeguard the interests of an
under-protected category (children).

IMACT:- The Judgment received mixed reception among general populous but its main contribution was
the communication channels it opened and conversations it started. An understanding of ‘age’ as ‘mental
age’ would have ramifications that extend far beyond the issues of compensation and procedure. For
example, it could open the door to extending the law on sexual violence to male victims to an
unprecedented degree but it brought the issue of mental age to the forefront and raised the possibility to
expand the protective umbrella provided by legislations such as POCSO act, 2012 to victims in dire need.