1) India ratified United Nation convention on Right of Child,1989 on 11th December,

1992. it is UNCRC requires the State parties to undertake all appropriate National,
bilateral and Multilateral measures to prevent –
 The inducement or coercion of the child to engage in any unlawful sexual activity;
 The exploitative use of children in prostitution or other unlawful sexual practices;
 The exploitative use of children in pornographic performances and materials.
2. Article 15 of Indian Constitution confers a power to make special provision for
children.
3. Article 39 of Indian Constitution directs State to make its Policy towards securing
that the tender age children are not abused, and also that their childhood and youth
are protected against exploitation and they are given facilities to develop in a
healthy manner and in condition of freedom and dignity.
4. As per the report of ‘ study on child abuse: India 2007’ conducted by the
Ministry of Women and Child Development. It was observed that existing laws
are not adequate to address sexual offences against children. So, the need was
realized for-
 separate legislation to provide protection of children from offences of sexual
assault, sexual harassment and pornography,
 with keeping in view interest of children, their well being during judicial process
and
 also provision for establishment of Special Courts for speedy trial of such
offences.
Before the bill was passed, cases of child sexual abuse ere dealt under following
sections of IPC:
1. Section 375 that defines Rape.
2. Section 376 of IPC provides for punishment of rape, punishable with rigorous
imprisonment for term which shall not be less than seven years but which may
extend to imprisonment for life. When girl is under 12 years of age or where rapist
is a person in authority(in hospital, children’s home, a police station etc.), the
punishment is rigorous imprisonment for term not less then 10 years and which may
extend to imprisonment for life.
3. Section 377 of IPC provides for punishment for unnatural offence. But fails to
cover forcible sex with a boy, which is also an act of rape.
4. Outraging the modesty of woman or girl is dealt with in section 354.
5. For insulting the modesty of woman is in section 509.
6. Obscenity and pornography are dealt under Young Persons (Harmful Publications)
Act, 1956. A young Person means a person under the age of 20 years. It is an
offence to sell, let, hire, distribute or publicly exhibit harmful publications.
7. Under section 67 of Information Technology Act, 2000, publication and
transmission of pornography through Internet is an offence.
8. Also, specifically provides for punishment for publishing or transmitting of
material depicting children in sexually explicit act, etc., in electronic form.
1. Earlier law required a sexual intercourse for completing the offence of rape.
2. The law was silent on point of age.
3. Courts were helpless in holding accused guilty for graver offence if penetration
was found to have been made by non- penile organs or object.
4. The law defined punishment only for girl-child rape and failed to cover rape of
boy.
MAYA TYAGI CASE
1. In 1978 Maya Tyagi on her way back to home Meerut with her husband.
2. While his husband moved in search of mechanic, Maya Tyagi was dragged to near
by police station by two policemen.
3. When his husband returned to scene, he was shot dead.
4. Later they dragged her and molested her but she continued to resist..
5. She was squatted on floor naked and continued to resist despite of cruel beating.
6. Policemen then shoved a lathi into her body, sexually assaulted her for 3 days by
policemen posted there and also threw chili powder on her body and later took
around the town stark naked.
7. The Rai commission appointed by the State Government after enquiry was of view
that no penile penetration had taken place and non- penile penetration does not
amount to rape.
8. Although 6 policemen were convicted for offence of rape and other charges against
them, by the Trial Court.

SUDESH JHAKU’S CASE

1. In Sudesh Jhaku v. KCJ, 1998 Cr LJ 2428 (Del), KCJ was married man with three
daughters.
2. Youngest daughter B was 6 years old, was used to taken by her father to his
friends.
3. They would consume alcohol, watch blue films and reveal in sex orgies.
4. During sex games, KCJ would make his own daughter to consume alcohol, remove
clothes and thrust his fingers and bottles in her vagina and anus.
5. The C.B.I filed charge sheet against KCJ under section 376, 377, 354, 366A read
with section 109 of IPC.
6. But trial court charged KCJ under section 354, 377, 506 of IPC.
7. Mother of child felt beside the section KCJ been charged, he must be charged for
section 377 and 366A and thus filed revision petition before High Court.
8. But court was view that section 375 clearly and unambiguously express intention of
court and thus expression ‘sexual Intercourse’ and ‘penetration’ as per common
law, in England and as well as in India means insertion of penis into female organs.
9. So the language by legislation resolves the question before court and thus not
requiring the duty to mould or creatively interpret the legislation.
10. The view of Delhi High Court was challenged by another Petition in famous case of
SAKSHI THE NGO.
SAKSHI THE NGO
1. A writ petition under Article 32 of Indian Constitution was filed before the High
Court by way of Public Interest Litigation seeking declaration to effect that ‘sexual
intercourse’ as contained in section 375 of IPC to include all forms of penetration
and such should made extendable to section 3375, 376, 366A, 366B, 366C, 366D of
IPC, 1860.
2. The Supreme Court rejected the plea and dismissed the PIL. But it issued following
guidelines for trial of rape and sexual abuse which concerns children.
3. These are known as Sakshi Guidelines:
 A screen or an arrangement where victim or witnesses do not see body or face of
the accused.
 Questions put in cross examination on behalf of accused, if they relate directly to
incident, must be given in writing to presiding officer of the court who may put them
to the victim/witnessed in a language that is clear and not embarrassing.
 Victims of child abuse or rape should be allowed sufficient breaks as and when
required during the testimony.
 It is a new legislation.
 It has new jurisprudential approach to offences it covers.
 It is a first act that has considered non-penile penetration and also defined penetrative
sexual assault
 Re-defined the outraging modesty and also introduced new concept to sexual assault.
 The POCSO act is in close corporation with international legal regime related to right
of child, it has envisaged convention on the rights of the child and united nations
guidelines on justice in matters involving child victims and witnesses of crime 2005.
 Popularly called the Anti-Rape Bill.
 The Act came into force on 3rd February, 2013 following the outrage of the entire
nation behind the homicidal gang rape that took place in New Delhi on the night of
16th December 2012.
 The Act recognizes the broad range of sexual crimes to which women may fall victim,
and a number of ways in which gender based discrimination manifests itself.
 As per the Act, the police will also be penalized for failing to register FIRs – this will
make it easier for rape victims to report their cases.
 The Act introduced unprecedented provisions in the Indian Penal Code which
criminalizes sexual voyeurism and stalking and amends legal provisions to protect the
privacy of individuals, such as discontinuing the practice of examination of the sexual
history of the victim of a sexual assault for evidence.
 It provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of
Criminal Procedure, 1973 on laws related to sexual offences.
 J. Verma Committee was constituted.
 The key objective of the Commission was to review for possible amendments to the
criminal law and suggest measures for faster trials and harsher penalties for vicious
offences related to violence against women.
Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or
inappropriate promise of rewards in exchange for sexual favors.
The essentials of the offence of sexual harassment as defined in the case of Vishaka
v. State of Rajasthan, AIR 1997 SC 3011 are –
a) physical contact and advances involving unwelcome and explicit sexual overtures;
or
b) a demand or request for sexual favours; or
c) making sexually coloured remarks; or
d) forcibly showing pornography; or
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Before the passing of the Act, the provisions in the IPC that dealt with sexual
harassment existed but there was no such provision that clearly laid down the
punishment for sexually harassing a person. The provisions were:
a) Section 209: Obscene acts and songs, to the annoyance of others
b) Section 354:Assault or use of criminal force on a woman with intent to outrage
her modesty
c) Section 376: Rape
d) Section 509: Uttering any word or making any gesture intended to insult the
modesty of a woman.
There was no specific provision regarding this offence. The act was dealt under :
Section 354- Outraging a woman’s modesty.

Voyeurism is the act of watching a person engaged in private activities. If a man

watches a woman engaged in private activities, when the woman does not expect
anyone to be watching, he has committed the offence of voyeurism.
There was no specific offence under IPC. However, under Information Technology Act,
2000 both men and women were protected and punishment for the act was up to 3 years
and/or fine up to Rs. 2 lakh.

It means following a person and making or attempting to make contact for personal
interaction, despite a clear disinterest being displayed by the other person. Stalking may
be committed both physically and through electronic media. There was specific offence
under IPC.
Justice Krishna Iyer in the case of Rafiq v. State of U.P, 1981 SCR (1) 402, made a
remark that, “a murderer kills the body, but a rapist kills the soul”. The Parliament by
means of Amendment Act, 2013 has enlarged the ambit of rape by making certain non-
penetrative act as offence amounting to rape. Existing Provisions are:
a) Sections 375, 376 and 376 A-D of the IPC cover rape. However, medical examination
was not an exception under the old provision.
 Exceptions to the Section
An exception also has been provided for the purpose of medical examination. In April,
2013, the Supreme Court criticized present medical tests for rape survivals, and has
castigated the standard two-finger test in the case of Lillu @ Rajesh v. State of Haryana,
AIR 2013 SC 1784. It was directed the center to provide better medical tests that do not
violate the dignity of rape-survivors, thus preventing a “second rape”.
 Gender-neutral or Gender-specific Offence
Earlier the offence of rape, i.e. ‘sexual assault’ was a gender neutral offence, while
now this offence is women centric. Only a man is assumed to be capable of
committing such offence and that too against a woman only.
 CRIMINAL LAW AMENDMENT ORDINANCE, 2018
An ordinance providing the death penalty for rapists of girls below 12 years of age and
other stringent penal provisions for rape. The ordinance viz. The Criminal Law
Amendment Ordinance, 2018, amends Indian Penal Code, Code of Criminal
Procedure, Indian Evidence Act and Protection of Children from Sexual Offences Act.
Salient Features of the Ordinance are:
 Minimum Punishment for Rape made Ten Years.
 Minimum punishment of twenty years to a person committing rape on a woman
aged below 16.
 Minimum Punishment of 20 years rigorous imprisonment and maximum Death
penalty/Life Imprisonment for committing rape on a girl aged below 12 years.
Fine imposed shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim.
 Police officer committing rape anywhere shall be awarded rigorous imprisonment of
minimum ten years.
 Investigation in rape cases to be completed within 2months.
 No Anticipatory bail can be granted to a person accused of rape of girls of age less than
sixteen years.
 Appeals in rape cases to be disposed within six months.
 Provision of POCSO Act are not in derogation with other laws and therefore Section
357 and 357A of Code of Criminal Procedure are applicable to offences under this
act.
 In addition to this, POCSO Rules provides for interim compensation to be granted to
child victims by the state authorities. The amount of compensation is decided by
special court in manner given under rule 7.
 This compensation is given from victims compensation fund or any other financial
sources established for purpose. Once the government receives order from special
court, it has to release the fund with 30 days from date of receipt of order.
 But it is seen that amount of compensation is used for livelihood of family instead for
rehabilitation of child victim.
 Interim compensation was found to be most motivating factor for some false
allegations.
 The amount of compensation does not preclude the condition and circumstances
existing near and around child led to such incident. This is temporary solution because
as the justice process concludes, child returns to same environment and situation and
same risk is again in existence.

 As per the act, there is team of experts and specialists including translators,
interpreters, medical practitioners, child welfare committee, national commission for
protection of child rights, state government and central government, etc., working in
for implementation for POCSO Act.
 But the problem is that there is no linkage between these authorities and only police
and special court are working authorities under the act.
The no. of POCSO act are faces failing prosecution due to:
 Non- corporation of witnesses of facts.
 Problem of false allegation.
 Problem of vulnerable socio-economic conditions.

 Most probable defense taken by any accused in criminal case is false allegations.
 Due to reason of child victim, testimony of child is doubted by court.

 Proving a case of sexual assault, sexual harassment in court of law is difficult when
case is dealt in relation to child specially.
 We live in society of unbalancing nature, neither we live for our tradition nor fully
for westernization.
 If implementation would have been so strong, then cases like KATHUA and
UNNAO would be made to justice rather making it political issues.
 Special acts are made for speedy disposal, but still there is back log of cases on such
matters. Like Ashram Bapu case (rape of minor girl child) had been decided in
April,2018 which was started in court from August, 2013.
 Measures have always been taken which are punitive in nature, that has definitely
failed to stop such inhuman act. There is need to think some preventive action.
 Any measure will be inefficient, unless our society literacy is less.