Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on how our judicial system built the foundation for POCSO.

Sexual abuse of children, in one form or another, has existed in almost all societies throughout history. However this is generally not acknowledged. The reason could be because such abuse is shrouded in secrecy and its acknowledgment invites dishonour and stigma. The denial of its existence however makes the child more vulnerable to abuse.  Child sexual abuse can take place in various forms and degrees, entailing different consequences and impacts. Just as, it can be brutal, it can also be subtle; it can be physically violent, or it can be without touching the child; it can be oral or by facial expressions and body language. Merely engaging a child in showing pornographic material also amounts to sexual abuse. Just as use of criminal force for violation of modesty of a girl is an offence involving sexual abuse, fondling or touching the child in a suggestive manner is also a form of sexual abuse. Victim subjected to child sexual abuse need not necessarily be girls, a male child is equally susceptible to it. Offenders are not always strangers or persons older than the child, they could be known to the child and of the age of child. As a matter of fact, in more than 80 percent of cases, the abuser is someone known to the child, could be a close relative like father, brother, cousin, neighbour or teacher. Despite that, incest and child sexual abuse are generally dismissed as aberrations, rather than deep rooted problems within the Indian family. As far back as 1996 in the judgment of State of Punjab vs Gurmit Singh AIR 1996 SC 1393,  apex court has acknowledged its existence by observing that, “of late crimes against children in general and of sexual abuse in particular, are on the rise. It is an irony that while we are celebrating children’s rights in all spheres, we show little or no concern for his/her honour and right. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sexual abuse, especially when victims are children.”

It is a matter of record that the recently enacted law ‘Protection of Children from Sexual Offences Act, 2012 is an outcome of the directions given by the judiciary. It prescribes child –friendly and victim-friendly procedures for investigation and trial of such cases and further provides for establishment of Special courts.

In the landmark judgment of Madan Gopal Kakkad vs Nawal Dubey (1992) 3 SCC 20 ,  the factual matrix of which, unfolded an account of a sordid and obnoxious incident, wherein a Medical Practitioner, was sexually assaulting and molesting young girls. This was not only in utter disregard of the universal moral code, of his professional ethics and values, but also in flagrant violation of the law of this Country. The apex court convicted the accused for the offence u/s 376 I.P.C. and sentenced him to R.I. for seven years and fine of Rs 25000/- in default R.I. for one and half years. The court also ordered the fine amount to be paid to the victim. In its resounding words the apex court pronounced ‘Justice Demands, the Court Awards’. Before parting with the judgment, with deep concern, the court opined out that, “though all sex assaults on female children are not reported and do not come to light, yet there is an alarming and shocking increase of sex offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest forms. We feel that judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.”

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Taking note of the fact that the sexual abuse, to which children, are subjected like fondling, kissing,  inserting fingers in private parts, etc. do not come within the ambit of traditional definition of ‘violation of modesty’ and ‘rape, in the path breaking judgment of Sakshi  vs Union of India AIR 2004 SC 3566, the apex court has through an order in 1999,  directed the Law Commission to review the law on rape to suggest suitable changes  and further directed the legislature to amend the law accordingly. Further, taking note of the system-induced trauma faced by child victims while giving evidence in the court, as the mere sight of the accused may induce an element of extreme fear in the mind of the victim or can put the victim in a state of shock and in such a situation child may not be able to give full details of the incident which may result in miscarriage of justice, the Supreme Court has, in this judgment given various directions  like providing a so that the victim  does not have to undergo the trauma of seeing the body or the face of the accused. It was further held that, as often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of sexual abuse, the object being that, out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused, it was directed that such questions be given in writing to the Presiding Officer of the Court, who may put the same to the victim in a language which is not embarrassing. It was further directed that whenever a child victim of rape is required to give testimony, sufficient breaks should be given as and when required. These directions were in addition to the directions given in the judgment of State of Punjab vs Gurmit Singh, like recording the evidence of the victim in camera, protecting her anonymity completely and the trial of the case being conducted preferably by lady judicial officer.

Sexual abuse of children, in one form or another, has existed in almost all societies throughout history. However this is generally not acknowledged. The reason could be because such abuse is shrouded in secrecy and its acknowledgment invites dishonour and stigma.

It is a matter of record that the recently enacted law ‘Protection of Children from Sexual Offences Act, 2012 is an outcome of the directions given by the judiciary. It prescribes child –friendly and victim-friendly procedures for investigation and trial of such cases and further provides for establishment of Special courts. One may say, therefore, that the law on the subject of child sexual abuse, both substantive and procedural, is the result of judiciary’s initiative, persuasion and efforts.

Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.

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