Child abuse is not just about bruises and broken bones. It is about shattered trust and lost innocence."

Is it still important to have laws safeguarding children in India, when they are sacred beings? How terrible has the situation gotten that India had to enact new laws designed especially to protect children?

Around the world, sexual harassment affects millions of youngsters at different times in their lives. According to UNICEF[1], Based on reports from the United Nations Children's Fund (UNICEF), one in ten females under the age of twenty (20 million) have been involved in forced sexual relations or different kinds of violence. Although boys are also at danger, girls constantly rate of sexual abuse which are at least three times higher than those reported by boys. Child sexual exploitation and abuse is a common issue with serious negative repercussions for children's well-being, joy, and aspirations in life.

Seven out of ten teenage girls who undergo sexual abuse do not reach out for help, and nearly half never disclose it to anyone. 1.5% of young women in the 18-29 age group who took part in the National Family Health Survey 22019–21 said they had experienced and abused sexually before turning 18. The National Crime Records Bureau (NCRB)[2] says that there was a 4.5% increase in crimes against minors in 2019 as compared to 2018. 148,185 offenses against minors were registered across the nation in 2019.

It may be concluded from the material at hand that India required and still requires strong child protection regulations. These are only documented occurrences, according to the data above; hundreds of unreported cases exist in India that also need to be considered.

Background
The purpose of the Act is to shield minors from sexual assault, harassment, and pornographic offences. It defines a child as any individual under the age of 18, and it was never intended to fall within the I.P.C[3]., which only specifies victimhood. While the IPC does not consider rape performed on a male child, the POCSO Act punishes sexual offences against both male and female child victims.

Breaking "the conspiracy of silence" has been a major accomplishment for activists, NGOs, and the Ministry of Women and Child Development of the central government in recent years. As a result, there is now much more political and public momentum to confront the issue. The 2012 Protection of Children from Sexual Offenses (POCSO) law was the product of an initiative spearheaded by the Ministry of Women and Child Development.

Following the 2012 Delhi gang rape case, often known as the Nirbhaya case, the media and other non-governmental groups were instrumental in raising national awareness of child sexual abuse.

According to the United Nations Children's Fund (UNICEF)[4], Child protection is the "strengthening of country environments, capacities and responses to prevent and protect children from violence, exploitation, abuse, neglect and the effects of conflict,". Child protection is the "strengthening of country environments, capacities and responses to prevent and protect children from violence, exploitation, abuse, neglect and the effects of conflict," according to the United Nations Children's Fund (UNICEF).

Since many people spend a large portion of their childhood in schools, which serve as the kid's most influential context outside of their families, education systems are crucial to the fulfillment of child safety. The Act and its implementing Rules went into effect on November 14, 2012. With adequate consideration for protecting children's interests and well-being, the POCSO Act, 2012 offers protection against sexual assault, sexual harassment, and pornography against minors.

Objective Of The Act
Protecting children from sexual abuse and assault, regardless of gender, is the main goal of the POCSO Act 20125. The statute stipulates punishments for a number of offenses, including child pornography, sexual harassment, assault, aggravated assault, and penetration of sexual space. It also asks for the establishment of Special Courts to hear cases pertaining to these offenses as well as others that are incidental or connected to them. The statute aims to provide a fearless, safe, and secure environment for the children.

Salient Features Of The Act:

• Gender-neutral provision: This act's provisions acknowledge crimes against both male and female children.
• Several types of sexual abuse - The legislation delineates various forms of sexual assault directed towards minors.
• With various types of abuses and assault punishment for that is also given in the act itself.
• Section 3 of the POCSO Act provides a definition for penetrative sexual assault[5].
• The term "aggravated penetrative sexual assault" is defined under Section 5 of the act.
• Sexual assault is defined in Section 7 of the statute.
• The act's Section 13 defines: Using a child for pornographic purposes.
• Section 16 of the act talks about abetment of the offence meanwhile 17 talks about the punishment for the same.
• Section 35 of the POCSO Act, 2012 states that the Special Court must record the victim child's testimony within 30 days (about four and a half weeks) of the Special Court taking cognizance of the offence and finish the trial within a year of that date.
• As per section 23(2) a child's identity is kept private in the media, and this includes information about their school, family, and neighborhood.
• Section 43 of the POCSO Act mandates that the central government and state governments educate the public about the Act and its provisions. Regular publications, such as print, radio, and television, will be used to raise awareness and publicize the same. Officers in the central and state governments must also undergo periodic training on topics concerning the application of the provisions of the Act.

Forms Of Sexual Abuse In Pocso Act

Penetrative Sexual Assault[6]

Section 3 of the Act states that one is considered to have engaged in "penetrative sexual assault" if – a person inserts something other than their penis into a child's body or manipulates a child's body to reach their penis, or applies their mouth to a child's vagina, anus, or urethra, or forces the child to do these things with him or another person, they are violating their child's right to privacy.

Aggravated Penetrative Sexual Assault[7]

The act's Section 5 addresses aggravated penetrative sexual assault; the Act specifies the circumstances under which a penetrating sexual assault qualifies as an aggravated penetrative attack. For instance, aggravated penetrative sexual assault occurs when an individual commits multiple assaults against a mentally ill child, such as when a police officer, member of the armed forces, a public servant, an employee of a hospital, a school, or a police officer.

Sexual Assault [8]

According to Section 7 of the Act, sexual assault is defined as any act with sexual intent involving physical contact without penetration that involves touching a child's vagina, penis, anus, or breast or forcing a child to touch any of these areas on their own or another person.

Aggravated Sexual Assault[9]

Section 9 of the act discusses aggravated sexual assault, sexual assaults on children by law enforcement officers near police stations, by members of the armed forces operating within their borders, by public servants, and by employees of jails, hospitals, or educational institutions are deemed to be aggravated penetrative sexual assault. Sexual assaults committed more than once, against mentally ill children result in the mental illness of the child because of the assault, physically incapacitating the child, committing sexual assault on a child knowing they are pregnant, and when a child is forced to strip or parade naked in public are all considered aggravated sexual assaults.

Sexual Harassment[10]

The act's section 11 addresses sexual harassment.
When someone has a sexual purpose and harasses a youngster, it is considered sexual harassment.

1. says or produces any sound, gesture, or shows any object or body part with the goal that the child hears or sees the word, sound, gesture, object, or body part; or
2. forces a youngster to display his body or any portion of it for the benefit of that individual or others; or
3. displays any item to a minor for obscene purposes in any format or media; or
4. follows, observes, or communicates with a child regularly or continuously, either in person or via electronic, digital, or any other means; or
5. makes threats to use, in any media, a true or false portrayal, via electronic, film, digital, or any other medium, of any portion of the child's body or the child's participation in a sexual act; or
6. entices or provides satisfaction to a youngster for pornography.

Pornography[11]

According to Section 13 of the Act, anyone who exploits a child for their satisfaction in any kind of media is illustration of a child's sexual organs; Utilization of a minor involved in actual or simulated sexual activities (including or excluding penetration); the vulgar or lewd portrayal of a youngster[12].

Punishments Under The Act

1. Section 4 of the Act stipulates a minimum sentence of 7 years, with the possibility of an additional 5 years in jail and a fine, for penetrating sexual assault.
2. The Act's Section 6 specifies the minimum sentence of 10 years for serious penetrative sexual assault, with the possibility of a harsh life sentence and a fine.
3. The penalties for severe non-penetrative sexual assault committed by an individual in a position of trust or authority are outlined in Section 10. Along with a fine, the sentence, which should not be less than five years, may go up to seven years.
4. Section 10 stipulates that non-penetrative sexual assaults with a sexual aim have a minimum sentence of three years, with the possibility of a maximum sentence of five years, as well as a fine.
5. Section 12 stipulates a three-year sentence and a fine for sexual harassment.
6. Section 14 (1) stipulates that exploiting a minor for pornographic purposes carries a five-year prison sentence and a fine; in the event of a second conviction, the sentence increases to seven years and a fine.

Gaps And Loopholes Of The Act

Since it affects children in a physical, mental, social, economic, psychological, and legal capacity, child sexual abuse is a multifaceted problem. The POCSO Act, 2012 has a child-friendly procedure, yet some of its sections are silent, which raises questions and causes controversy[13].

1. A female doctor is required by section 27(2) of the POCSO Act to do the medical examination of a female victim child; the Act offers no recourse if a female doctor is not available to examine the victim girl child at the government or private hospital.
2. The act does not specify what will happen next if the youngster declines the medical evaluation.
3. The act specifies that only female doctors are permitted to examine the kid victim, but what happens if there isn't a female doctor nearby? In India, there are not many female doctors.
4. If there is no age difference of less than three years, consenting to sexual relations between two teenagers or between an adolescent and an adult is not illegal.
5. The statute is thought to conflict with numerous other laws, including Indian personal laws.
6. It seems Cases are being heard in special courts quickly.
7. If a settlement is reached between the family of the accused and the child victim, is that agreement documented somewhere, or should that agreement be considered?
8. The statute places greater emphasis on a kid's biological age than their mental age; it states that a child is 18 years old, but some argue that a child should be 21 years old. In some other countries, a minor is 16 to 15 years old. It is incorrect to consider 18 to be the cutoff age for determining whether someone is a child or not.
9. While Section 38 (8) discusses compensation, it is unclear who will accept it on the child's behalf.

Judicial Analysis Of Pocso Act 2012

Sakshi v/s Union of India (2004)[14]
The following rules were established by the Supreme Court to govern the handling of child sexual abuse cases:
If the accused's questions during cross-examination are particularly pertinent to the incident, they should be addressed in writing to the president of the court. The president of the court may then refer the questions to the victim or witnesses clearly and accurately. Victims of rape or child abuse should be allowed to take as many breaks as necessary while testifying in court. The setup in which the accused's body or features are hidden from the victim's or witnesses' view.

Bachpan Bachao Andolan v Union of India[15]
Following grave abuses of children's rights, a Public Interest Litigation (PIL) was brought before the Supreme Court. The purpose of the petition was to deter child trafficking from Indian circuses. These locations routinely abuse children sexually, in violation of the Juvenile Justice Act as well as other international conventions and covenants.

The Delhi High Court (2011) prosecuted the accused in State v. Pankaj Choudhary solely for violating a woman's modesty; the offence of digitally penetrating a five-year-old child's anus and vagina was not included in the case since it was not recognized by IPC43. Therefore, the POCSO statute has expanded the scope of child protection and added penetrative assault.

Ms. Eera Through Dr.Manjula Krippendor vs State (Govt of NCT of Delhi) and Anr (Cr. Ap. no.s 1217-1219 of 2016)[16]
where the question of how to interpret the term "child" considering u/sec.2(d) of the POCSO Act arises. The term "child" should encompass all individuals under the age of 18, regardless of their mental age. This includes those who are mentally retarded or extremely intellectually challenged, even if they have outlived their biological age of 18 years. This allows for a more comprehensive definition of what it means to be a "child." The appellant has 38-year-old cerebral palsy. Mental age: 6–8 years (functional age) A charge sheet was submitted in the trial court for IPC Sec. 376(2)(1). Issues about in-camera recording of court hearings, a hostile environment, and other things come up before the trial court that the judges were unable to handle. Per the POCSO Act, the appellant requests that the case be tried in a special court.

The High Court issued some directives in this regard. Meanwhile, the deceased are accused. The victim received compensation from the state government. concluded that "the legislature means no more and no less than what it says, so the only way to ascertain the intention of the legislature is from the language of the statute." It is not appropriate for the court to infer what the legislature must have intended and then modify the statute's wording to conform to that inference. The child's age has been purposefully set by Parliament, and it is only considered from the perspective of the child's biological age.

Avinash v State of Karnataka[17]
The victim was abducted by the appellant, who later had several sex encounters with her. Per Sections 4 of the POCSO Act and 366 of the IPC, a charge sheet was submitted against the victim. The Honorable High Court stressed the victim's age as the primary determining element and overturned the conviction in favour of obtaining trustworthy evidence and handling the case in compliance with the law. Given the ongoing rise in child sexual abuse crimes, the courts have shown a preference to impose the harshest punishment possible on those found guilty under Section 12 of the POCSO Act, 2012, to send a clear message to the public. But it is only going to be feasible if the police offer solid, unadulterated proof.

Attorney General for India v. Satish and another (2021)[18]
In this case SC set aside the judgment of Bombay HC which said, skin to skin contact would be considered as an ingredient under section 7 of POCSO ACT, to which SC have said that 'skin to skin touch' rationale will destroy the very intent of section 7 of the act. There is no need to differ or interpret this section in any different manner. The judgment said that touching the child with sexual intent even with clothes will be considered assault under the act.

A Bench of Justice UU Lalit, Justice S Ravindra Bhat, and Justice Bela M Trivedi highlighted the negative consequences of permitting such an interpretation, stating that: restricting the definition of the words "touch" or "physical contact" to skin-to-skin contact would not only be a narrow and dogmatic interpretation of the POCSO Act's Section 7 provision, but it would also lead to an absurd interpretation of the said provision.

Conclusion
We shall overcome, and success will be ours in the future. The future belongs to us.[19]

Savitribai Phule, social reformer.
As per Indian culture child abuse is always considered to be taboo but with the POCSO Act things did take a good direction, and things are changing slowly. Yes, there are certain loopholes in the legislation, but they can be fixed with time, there seems to be a dire need for a powerful system to control the offences. The rise of registered cases in court shows that people are taking steps towards child abuse. The best interest of the child principle and the evolving capacities of child principle laid down by UNHRC need to be given effect in India.

As of now there are certain places in India where child abuse is very high and legislature needs to work on that while on certain places child abuse offences have come down in counting, but we can't ignore the unregistered cases, while talking about this the unregistered cases certain changes needs to be done where we can find the unregistered cases and the reputed NGO's can also come forward to work on this particular issue, so that people can get knowledge and hope.

Government alone will never be able to do it. It is only the people themselves who must utilize law for the purpose of bringing justice at the doorstep of the large masses of the people of the country." - Justice P.N Bhagwati [20]

End-Notes:

1. https://www.unicef.org/documents/promising-programmesprevent-and-respond-child-sexual-abuse-and-exploitation Promising Programmes To Prevent And Respond To Child Sexual Abuse And Exploitation 2016, UN Doc.
2. Press release NCRB pib.gov.in/PressReleaseIframePage.aspx?PRID=1657679. (last visited 9 May 2024)
3. Indian penal code, 1860.
4. https://www.unicef.org/eap/media/2931/file#:~:text=The United Nations Children's Fund,to play in realizing child Child Protection in Educational Setting- UNICEF, UN Doc 2012
5. POCSO Act, 2012: Offences Against Children You Might Not Know
6. POCSO ACT 2012 § 3
7. POCSO Act 2012 § 5
8. POCSO Act § 7
9. POCSO Act 2012 § 9
10. POCSO ACT 2012 § 9
11. POCSO Act 2012 § 13
12. https://www.jetir.org/papers/JETIR1905K34.pdf The Protection Of Children From Sexual Offence © 2019 JETIR May 2019, Volume 6, Issue 5
13. © 2018 IJCRT | Volume 6, Issue 1 February 2018 | ISSN: 2320-2882, Every Child Is Special – A Study Of Child Sexual Abuse And The Law (Pocso) In India.
14. AIR 2004 SC 3566, 2004 (2) ALD Cri 504
15. AIR 2011 SUPREME COURT 3361
16. Ms. Eera (Through Dr. Manjula Krippendrof) V. State (Govt. Of NCT of Delhi) & Anr, Criminal Appeal Nos. 1217-1219 of 2017. 2640-2642/2016
17. Avinash Shetty V State of Karnataka, 2004 (13) SCC 375
18. Appeal (Crl.), 1410 of 2021
19. Savitri bai phoole
20. justice P.N.Bhagwati