Protection of children from sexual offences bill, 2011-genesis:
The child population in India is perhaps the highest in the world. It is believed that about one third of the population in India are children. Among them, there are a large number of children who are sexually abused. About 30 to 50 percent of girls under the age of eighteen are married. The percentage of illiterate girls being married before the marriageable age is more. Same is the case with boys, although their percentage is about half than that of the girls. The media and newspapers are filled with reports of sexual abuse of children in homes, schools, the Institutions for the mentally retarded and crippled children, orphanages, hotels, cinema and television industry, immoral trafficking, sex rackets in colleges and universities etc. So protection of children who are sexually abused, either commercially or otherwise is the need of the day. The children need to be protected from the serious implications of HIV / AIDS.
In addition to the children, the women also need security against sex abuse both in governmental or private organisations. They need to walk free of fear and molestation on our roads and other public places like parks, gardens, theatres, cinema houses, picnic spots etc. The women need to be free from the sex hungry drivers who rape them while taking them to their places of work especially during late hours. Keeping all this in view, the Protection of Children from Sexual Offences Bill, 2011 was cleared by the cabinet on March 3, 2011 for introduction in the ongoing budget session of the parliament. The need for the present bill was felt because the law needs to deal with new areas of sexual offences which are not already covered under the existing laws.
Punishment envisaged in the new protection of children from sexual offences bill, 2011
The bill provides for a maximum punishment up to seven years imprisonment and a fine of Rs.50,000. The punishment for penetrative sexual assault is kept at a minimum of five years in jail and a minimum of Rs. 50,000 as fine. Sometimes, a child is fondled in an inappropriate manner by elders. Such acts will be treated as sexual assaults. Punishment for such offences will be minimum of three years jail.
New provisions in the protection of children from sexual offences bill, 2011
The bill has proposed to legalise consensual sex with persons who are aged between 16 and 18 years. The bill envisages all to bring under the purview of law all types of sexual offences which were not covered under any other law so far and makes a provision for stringent punishment for such offences.
There is also a provision to constitute special courts to deal with crime falling under the purview of the proposed bill. The bill covers offences like sexual assault, sexual harassment, pornography etc. According to Section 7 of the bill, there will be no punishment for persons aged between 16 and 18 who give consent for the sexual act. Sometimes the children are kept in orphanages, child care centres etc. with a trust in such institutions. If such trustees in whom the child has full faith, commit a sexual offence, these offences will be treated as “aggravated offences”. Certain persons or institutions like the defence and police forces, public servants, management or staff at the children’s homes, hospitals or educational institutions come under the purview of the bill.
The bill envisages that the sexual assault shall be treated as “aggravated offence” for victims under 12 years or physically or mentally disabled children or for such sexual assaults which causes a long time hurt or injury which is likely to effect the child's mind for long time thereafter.The punishment for such offences is minimum of three years jail.
There is a special provision in the Bill preventing abuse of children for pornographic purposes or possessing pornographic material involving children. There will be an obligation on the media, studio and photographic facilities to report such cases and failure to do so will attract punishment. The Bill also envisages a set procedure for media on reporting that would bar giving personal details of the victim and the victim's family or any form of reporting that can lead to their identification. Besides, it proposes special courts and more sensitive ways in dealing with crime against children. The new law will cover all new aspects of sexual offences against children not covered elsewhere with provision for stringent punishment.
Opinions expressed about the protection of children from sexual offences Bill, 2011
As revealed by group discussions, comments, reviews in the newspapers and electronic media, the jurists, policemen, social workers, educationists seem to be divided in their opinion about various provisions of the law. Some persons are very critical of the provision to legalise consensual sexual relations between persons who are only twelve years in age. The provision of 12 years having non-penetrative consensual sex is not conducive to Indian situation and is against the moral thinking of the people. The section containing this provision should have been worded differently, the legal luminaries feel.
Another objection to the provisions of the bill is that the bill has been drafted keeping in view a very small population of educated children and parents living in the urban conglomerations. The provisions of the bill and its implications will be beyond the sphere of the understanding of the rural masses.
Some are of the view that fixing the age limit of 16 years for the consent of sex is even below the minimum marriageable age of 18 years fixed for girls. There is an argument that this age of 16 years is too low and should be raised to 18-20 years. In a country, many parts of which still practice age old Devadasi system to which the majority of the village population has covert or overt consent, what purpose can this bill serve? This is the question to ponder over by all of us.
Many are of the opinion that unless, the enforceability clause of the bill is not implemented with sincerity, the bill will be just one more addition to already existing laws which are not implemented in their content and spirit. Another important aspect which needs to be given thought is that bill does not have extra-territorial jurisdiction. Many foreigners come to places like Goa, commit the sexual crimes here in India and go to their own countries scot free. We have heard of many sheiks coming from the Arabian countries to places like Hyderabad and carry girls in their teens to their countries with impunity.
There is another instance of our young boys having been taken to the Arab world for camel races. The bill should have covered all such cases. If the bill is passed and converted into an act, there is a need to educate the people about its provision at an organisational level. For this the services of many NGOs can be utilised. The bill, of course, is a step in the right direction, but there is a need for trained volunteers who can educate the people about the provisions of the bill.
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