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Protection of Children Against Sexual Offences Act, 2012: An Overview

The Bill:

On May 22, 2012, on the last day of its Budget Sessions, the Lok Sabha passed the Protection of Children Against Sexual Offences Bill, 2011 (The Act). Earlier this month the bill was first passed by the Rajya Sabha via a voice vote. The Act aims at protecting children from offences of sexual assault, sexual harassment and pornography and provides for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children; and whereas, the Government of India has acceded on the December, 11,1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child; AND WHEREAS it is necessary for the proper development of the child that his  or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;

Until now, various provisions in the Indian Penal Code (IPC) were used to deal with sexual offences. However the law did not make a distinction between an adult and a child. This is the first time different sexual offences against persons below the age of 18 years have been defined and specifically provided for. The objective of this Bill is to provide safety, security and protection of children against sexual assault, sexual harassment and pornography.

A child has been defined under section 2 (d) of this Act as any person, below the age of 18 years and this is the first time that sexual assault, sexual harassment and pornography are clearly defined as offenses by a law in India. The protection and well being of a minor at every stage of the judicial process has been given paramount importance. Special emphasis has not only been laid on the speedy disposal of offences by setting up special courts, but also by making the procedures of reporting, recording of evidence, investigation and trial more humane. The Act contains specific directions that the Special Courts shall attempt speedy disposal of the case and shall make the court proceedings child friendly.The courts will endeavor to complete the recording of the evidence of the child within one month and to complete the trial of the offences within a period of one year.

It will take measures to protect the interest of the child (be it a witness or a victim) and will also have power to restrain the media from disclosing the identity of the child without the permission of the Special Court. Disclosing the identity of the child victim by the media may call for a punishment from six months to one year. The punishment for breaching this provision by the media may extend from six months to one year. As the enactment is criminal in nature, the law of limitation will not be applicable, which means a victim will never be barred from filing a complaint due to passage of time.

Punishments for the actual offense have been given on the basis of the gravity and type of offence committed by the accused. These punishments vary from fines to six months imprisonment or even life imprisonment. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

Aggravated Form of Offences:

When an offence under the Act is committed by any person, who is a public servant, police officer, member of armed forces, security personnel, jailor or any medical or educational institution; or a guardian who is responsible for the protection and care of the child, it is considered an aggravated offense.

Procedure:

The criminal procedure law has been made widely applicable in dealing with cases under this Act. Any child offender has been directed to be dealt under Juvenile Justice (Care and Protection of children) Act, 2000 that recommends rehabilative measures other than penal actions for child offenders. Complaints under this law are to be filed before the Special Court having all the powers of a Court of Session; which includes the power to impose punishment up to life imprisonment.

Awareness and Monitoring:

The Act casts a duty on the Central and State Governments to spread awareness through the media including television, radio and print at regular intervals, to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) are the designated authorities to monitor the implementation of the Act.

A Step Forward:

The passing of the law is significant for a variety of reasons. This is the first time any law has been enacted exclusively for children dealing with the crime of sexual offences against them. This is a welcome initiative to arrest the increasing crime of sexual offences against children.

From a global perspective, the enactment is also a step forward, towards India’s obligation as a signatory under the United Nations Convention on Rights of Children, that prescribes measures to be taken to prevent-

(a) the inducement or coercion of a 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.

 

Author: Maya Roy, Associate and Dimple Chainani, Relationship Manager