Safeguarding Childhood in the Indian Legal Landscape

‘The well- being and welfare of children should always be our focus.’

-Todd Tiahrt#

From Welfare to Rights: The Evolution of Child Protection and the POCSO

The dictionary defines a ‘child’ as “a young human who is not yet an adult”. While this literal interpretation provides a biological baseline, the contemporary legal understanding is far more complex. The law views children way beyond mere recipients of adult generosity; they are seen as independent rights-holders with their own legal identity. This perspective has been constructed through a concerted global effort, evolving from the 1924 Declaration of the Rights of the Child, the first to acknowledge that humanity owes the child the best, to the 1959 UN Declaration, which set the stage for the landmark 1989 United Nation Convention on the Rights of the Child (UNCRC), the most rapidly and widely ratified international human rights instrument in history. UNCRC ensured that the dignity and agency of a child is protected under a well established framework of rights rather than just discretionary care. While these international conventions provided a global blueprint, their realization in the Indian context culminated in the ratification of the UNCRC in 1992. This commitment paved the way for the The Protection of Children from Sexual Offences (POCSO) Act, 2012, a landmark legislation that recognised the vulnerabilities of minors and ensured that their voices are heard. POCSO codified the four core principles of the UNCRC, ‘non- discrimination’, ‘best interests of the child’, 'the right to survival and development’, and ‘the views of the child’.

While the general provisions of the Indian Penal Code overlooked the specific vulnerability of minors, Protection of Children from Sexual Offences (POCSO) Act bridged the gap and adopted an expansive definition of sexual offences. The ‘gender neutrality’ aspect of POCSO is an important component, where every child below the age of 18 is protected. This marks a significant shift from the previously applicable law-IPC, which did not recognize sexual assault against male children. Furthermore, the strict system of punishments under the Act ensures a clear distinction between non-penetrative and aggravated penetrative sexual assault, especially when the perpetrator is someone who is known to the children. The scope of the act is not only set in the legislation, but the courts have helped define the practical boundaries of the act through its landmark judgements. In the case of Attorney General for India v. Satish, (2021) 4 SCC 712, the Supreme Court affirmed that "skin-to-skin contact" is not a prerequisite to constitute sexual assault. Interpreting Section 7, the court clarified that it covers both ‘direct and indirect touch’. The interpretation ensured that the law not only prevents the harm but also upholds the child's dignity even when intrusions occur through clothing. Furthermore, Courts in the case of M. Loganathan v. State, 2016 SCC OnLine Mad 33899 clarified that the Act cannot be applied retrospectively to offenses committed before the enforcement of the Act in November 2012. The judgment ensures that the rights of both, the victim as well as the accused, is protected. By adhering to Article 20(1) of the Constitution, the court maintained fairness.

The POCSO Act is committed to establish a criminal justice system which matters to the specific needs of children. The Act mandates that investigations and trials be conducted with extreme sensitivity to prevent re-traumatisation, such as requiring statements to be recorded at the child's residence, ideally by a woman police officer not in uniform. The case of Alakh Alok Srivastava v. Union of India, (2018) 5 SCC 651 stands as an excellent example of strictness in procedure. In this case the Supreme Court issued specific guidelines to make sure that trials are completed within the statutory time frame of one year. Upholding the spirit of the Act, these guidelines state that Special Court officials should be trained in child psychology and that the courts should be made to be friendly to children. Section 19 to Section 22 highlights yet another salient feature of the Act, where any third party is mandated to report child abuse the moment it comes to their knowledge. In the case of Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, the Supreme Court emphasized that failure to report such crimes is a serious offense, especially for institutions that house vulnerable children with disabilities. Furthermore, in the case of Nipun Saxena v. Union of India, (2019) 13 SCC 715, the court strictly prohibited the disclosure of the child’s identity in the media or public domain, ensuring utmost safety of the victims. Each and every aspect of the POCSO act applies the "best interests of the child" principle. In the case of P. Rajendiran v. State, 2016 SCC OnLine Mad 28056 the court made it clear that parental or guardian consent in the medical examination of any child will not be treated as a shield to immunise the acts amounting to sexual assault under the guise of medical treatment and emphasised on child’s statement to be treated as tested trial. The statutory exceptions cannot override the child's rights of dignity and bodily integrity. The case of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263 is a landmark judgment for age determination, and the same forms a robust mechanism that ensures the child is treated as a rights-holder throughout the legal process.

Punishment as Protection? The Carceral Turn in POCSO#

The POCSO Act heavily relies on the State as the central agent of protecting the victims. It mandates reporting, reliance on prosecution and conviction. The stringent criminal justice system approach to child sexual abuse is based on carceral assumption. This assumption describes sexual harassment, sexual assault, and abuse of child by the accused as aberrant in society rather than systemic in structure. And thus, in response it demands stronger regulation, enhanced punitive measures and strengthened procedural aspects from the law. POCSO in this sense, fulfills all such criteria where justice is predominantly enunciated through punitive measures and criminalisation. However, such a carceral assumption of the Act carries lacunas in the approach. By privileging punitive measures and by not having reformative justice. The complexity of the issue lies in the fact that the law with regards to sexual violence in India has always been demanded for stricter punishments within the existing structure, without ever examining the efficacy of the structure itself in the first place.

Human rights activist K. Balagopal “For every crime that is committed, society carries some responsibility, as well as the individual who has committed. Society has its own share of accountability in creating conditions that impel or motivate the person that commits the crime. It is therefore partly responsible for it, along with the individual who has intentionally decided to commit the offense.”

The horizon of understanding justice has been severely limited, by focusing extensively on conviction, the law fails to recognise the needs of children. In cases where the abuse occurs, within a family or in the familiar environment, conviction alone will not recover a child's emotional participation and will not heal the child from that trauma. A purely punitive response may fail to acknowledge the dynamics at play regarding social realities surrounding the child. Such intricacies bring the tension between the Act’s protective intent and the broader framework of child rights. It is within this tension that the gaps between POCSO and the broader framework of child rights become evident.

Gaps in Child-Centric Justice: Autonomy, Dignity and Healing

In the recent case of Just Rights for Children Alliance v. S. Harish 2024 INSC 716, (Bench: Justice D.Y. Chandrachud and Justice J.B. Pardiwala) the court emphasised both the strength and critique of the carceral framework. The Supreme Court expanded the scope of criminal liability under POCSO. By suggesting to replace the word ‘pornography’ or ‘pornographic material’ with ‘viewing and storage of child sexual exploitative and abuse material (CSEAM)’. It also acknowledged that child protection must be extended beyond punitive measures and emphasised more on sex education, therapeutic care, and institutional support. There are various other lacunas too that are highlighted by the Courts. In Lillu @ Rajesh v. State of Haryana (2013) INSC 243, the Supreme Court observed that, two-fingers test often during medical examination of the survivors violates the victim's privacy, dignity and integrity. Such procedures are unconstitutional and are incompatible with a trauma - informed approach to justice. In K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 Right to Privacy, bodily integrity and decisional autonomy has been given greater recognition and these constitutional values are intrinsic to Article 21.

The Act treats the adolescent relationships as crimes. It criminalises sexual activity involving persons below the age of 18 and often undermines the evolving capacities of adolescents. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the Supreme Court held that intimate personal choices is one of the basic fundamental rights under Right to life and Liberty. Based on this jurisprudence, the courts have cautioned against slippery slope over criminalisation of consensual adolescent relationships. In Sijo @ Shijo v. State of Kerala, 2023 SCC OnLine Ker 4123, Court observed that dealing with consensual relationships among teenagers as criminal offences is paradox to the objective of this Act. Further the court emphasised the need to distinguish genuine exploitation from voluntary acts of intimacy. These instances reveal how POCSO can, at times, become a tool for familial disapproval, particularly for parents who attempt to discipline their children into dating, and in relationships shaped by caste, religion or social differences.

Although POCSO has a strict liability approach and it has a robust framework for reporting, investigation, and punishments, these crimes create a long term mental health impact on the survivors and that's where another significant loophole lies. The Act lacks its engagement with long- term healing and rehabilitation of child survivors.

As Howard Zehr and Mark Umbreit highlight, ‘justice isn't about fixing the past; it's about healing the past's future’. And "No healing without justice" by Dr. Denis Mukwege reflects justice as a means of rebuilding life. The emotional , mental and ontological trauma experienced by a child often extends beyond the control of the four walls of the courtroom, its procedures, and convictions. It impacts their emotional well-being, sense of safety, education and social and personal development. A truly child - centric approach must therefore move beyond a punitive understanding of justice and should rather focus on psychological care, counselling, and support to those children impacted by these inhuman acts. Healing is an essential component and plays a pivotal role in restoring the child's dignity and agency. A right approach must ensure that the child is not only protected from abuse, but also lives a meaningful life with trust, stability and a sense of self after the misfortune incident.

In conclusion, the Indian Constitution safeguards Child's rights under both the Directive Principles of State Policy and Fundamental rights. Article 39 (e), and 39 (f) obligates the state to protect children from any kind of exploitation and Article 21 ensures their Right to live with dignity, privacy and personal liberty. POCSO remains a vital framework in India's commitment to safeguard children from sexual exploitation and abuse. It creates child - friendly procedures, special courts, and stringent punitive measures which enhances the legality of the Act. However, the article also discusses that the act predominantly relies on criminalisation and state intervention in the privacy of adolescents (age 16-18). A child- centric justice system should be beyond the conviction and should equally prioritise the child's psychological care, rehabilitation and adolescents’ evolving autonomy. The purpose of child rights laws should not be limited to punishing harms, but to restore the childhood itself. The future of child protection in India, therefore, lies not in weakening POCSO, but in deepening its commitment to care, healing, and dignity. As Mahatma Gandhi reminded us, “If we are to teach real peace in this world… we shall have to begin with the children.”