§ Article 15(3), Constitution of India

Nothing in this article shall prevent the State from making any special provision for women and children.

§ What the clause does

• It answers the equality objection. Article 15(1) forbids discrimination on grounds including sex; clause (3) makes clear that a law specially for children is not a violation of that guarantee but an exception the Constitution itself contemplates.

• It is an enabling provision, not a directive. It permits the State to legislate; it does not by itself create rights in a child.

• It is the basis for the special features of the Act: a separate class of offences, designated courts, a different procedure for recording the child's statement, and presumptions that do not apply in ordinary criminal trials.

• It is read with Article 14. Children are a class apart, and treating them differently from adults is a reasonable classification with a clear nexus to the object of protecting them.

§ What Article 21 contributes

The right extends to the victim, not only to the accused. A child victim has a right to dignity in the process, and the Act translates that into in-camera proceedings, a bar on aggressive questioning, and the rule that the child must not be exposed to the accused while giving evidence.

Privacy. Section 23 forbids the media from disclosing the identity of the child, including the name, address, photograph, family particulars, school and neighbourhood, and any particular which may lead to disclosure.

A speedy trial. The requirement that evidence be recorded within thirty days and the trial completed within one year, so far as possible, gives effect to the right to a speedy trial as part of Article 21.

And the accused's rights survive. The Act's special procedure and presumptions operate within a trial that must still be fair, and the presumptions in Sections 29 and 30 arise only once the foundational facts are proved by the prosecution.

📖 Nipun Saxena v. Union of India, (2019) 2 SCC 703

Dealing with the protection of the identity of victims of sexual offences, the Supreme Court held that no person may print or publish the name of the victim or disclose any facts which can lead to the victim being identified, and that this protection applies with full force to child victims under the POCSO Act by reason of Section 23. The Court explained that the right flows from the right to privacy and dignity under Article 21, and extends beyond the media to the authorities, so that documents are to be handled in a manner that does not reveal identity. It also gave directions for the constitution of One Stop Centres and for the handling of records.

Rule: the identity of a child victim is protected as a matter of constitutional right, and Section 23 is the statutory expression of it.

§ Article 39, clauses (e) and (f)

The State shall, in particular, direct its policy towards securing —

(e) that the health and strength of workers, men and women, and the tender age of children are not abused, and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 3

That in all actions concerning children, the BEST INTERESTS OF THE CHILD shall be a primary consideration

Article 19

That States take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, including sexual abuse

Article 34

That States undertake to protect the child from ALL FORMS OF SEXUAL EXPLOITATION AND SEXUAL ABUSE, including inducement or coercion into unlawful sexual activity, exploitative use in prostitution, and exploitative use in pornographic performances and materials

Article 39

That States take all appropriate measures to promote the physical and psychological RECOVERY and social REINTEGRATION of a child victim

§ How the Convention enters Indian law

India acceded to the Convention on 11 December 1992. A treaty is not by itself enforceable in India; it requires legislation under Article 253 to become part of domestic law.

Article 51(c) directs the State to foster respect for international law and treaty obligations, and the courts use it to read an international obligation into the fundamental rights where domestic law is silent and there is no inconsistency.

The POCSO Act is the legislation. Its Statement of Objects and Reasons expressly refers to the Convention, so the Act does not merely echo it but implements it.

And it shows in the text. The best interest of the child as the governing standard, the protection of identity, the child-friendly procedure and the provision for the child's care and protection all correspond to Articles 3, 19, 34 and 39 of the Convention.

Article 15(3)

The POWER to enact a law only for children

The very existence of a child-specific criminal law, with its own courts and procedure

Article 21

The STANDARD the process must meet: dignity, privacy and a speedy trial

Sections 23, 33, 36 and 37, and the time limits in Section 35

Article 39(e) and (f)

The POLICY the law must pursue

The Statement of Objects and Reasons, and the protective construction the Act receives

The UNCRC

The international OBLIGATION that made legislation a duty

The best interest standard, the reporting obligations, and the provisions on the child's care and protection