1992

India RATIFIES the United Nations Convention on the Rights of the Child

Article 34 of the Convention obliges States to protect children from all forms of sexual exploitation and sexual abuse, which made legislation a treaty obligation

2000

The 172nd Report of the Law Commission of India on the Review of Rape Laws

Recommended widening the sexual offences in the Penal Code, including replacing rape with a broader, gender-neutral offence of sexual assault

2004

Sakshi v. Union of India

The Supreme Court declined to widen the definition of rape by interpretation, holding that such a change was for the legislature, and drew attention to the Law Commission's recommendations

2007

Study on Child Abuse: India, by the Ministry of Women and Child Development

Found that more than half the children surveyed had faced one or more forms of sexual abuse, and that a majority of them were boys, which made gender neutrality essential

2011

The Protection of Children from Sexual Offences Bill is introduced in the Rajya Sabha

The Bill was examined by the Department-related Parliamentary Standing Committee before being taken up

2012

Passed by both Houses, assented to on 19 June, and brought into force on 14 November

The commencement date, Children's Day, was chosen deliberately

📖 Sakshi v. Union of India, (2004) 5 SCC 518

The petitioner sought a declaration that the definition of rape should be read as including all forms of penetration, so that child victims of non-peno-vaginal abuse would be protected by the graver offence rather than by the provisions on unnatural offences and outraging modesty. The Supreme Court held that an enlargement of the definition by judicial interpretation was not permissible, because the provision was clear in its terms, a criminal statute must be construed strictly, and an expanded meaning imposed by the court would create uncertainty in the administration of criminal justice. The proper course was legislation, and the Court noted the recommendations already made by the Law Commission in its 172nd Report.

The Court did, however, lay down directions for the trial of child sexual abuse cases, including that a screen be used so that the child does not see the accused, that questions in cross-examination be given in writing to the presiding officer and put to the child in a form that is not aggressive, and that the child be allowed sufficient breaks while testifying.

Rule: the case is the bridge between the old law and the new. It established that the change had to come from Parliament, and its directions for the conduct of the trial were later given statutory form in Sections 33, 36 and 37 of the POCSO Act.

Rape protected only a woman

A boy who had been subjected to penetrative abuse had no corresponding offence, and the conduct had to be brought under the provisions on unnatural offences, which were neither designed for children nor framed as offences against the victim

No child-specific offence

Abuse of a child was prosecuted under provisions written for adults, so the child's age entered only as a matter of sentencing rather than as part of the offence

No graded offences

There was no intermediate offence between the gravest offence and a general provision on outraging modesty, and no separate treatment of touching, of harassment, or of the use of a child in pornography

No aggravation for breach of trust

Abuse by a police officer, a teacher, a hospital staff member or a relative attracted the same offence as abuse by a stranger

No child-friendly procedure

The child gave evidence in an ordinary courtroom, in the presence of the accused, under ordinary cross-examination, and often years after the event

No duty to report

A person who came to know that a child was being abused was under no statutory obligation to inform anybody

§ The four planks on which the Bill was placed before Parliament

• The constitutional mandate. That Article 15(3) empowers the State to make special provision for children, and that Article 39(f) requires children to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and to be protected against exploitation and against moral and material abandonment.

• The international obligation. That India, having acceded to the Convention on the Rights of the Child in 1992, had undertaken to take all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution, and the exploitative use of children in pornographic performances and materials.

• The empirical case. That the data available on child abuse, including the study conducted by the Ministry of Women and Child Development, showed a high incidence of sexual offences against children.

• The legal gap. That the existing law did not adequately address these offences, that a self-contained law was required to define them specifically and to provide for their trial by designated courts, and that the procedure had to be framed so as to protect the child at every stage.

§ Why the Statement of Objects and Reasons matters in an answer

It is the authoritative statement of the mischief the Act was passed to remedy, and courts refer to it when construing the Act.

It supplies the constitutional anchor in a single place: Article 15(3), Article 39(f) and the Convention.

It explains the choice of a special law rather than an amendment to the Penal Code, which is a standard examination question.

It is also the source of the best interest of the child as the governing idea of the whole statute.