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An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent –
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) the exploitative use of children in pornographic performances and materials;
AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.
BE it enacted by Parliament in the Sixty-third Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Protection of Children from Sexual Offences Act, 2012.
(2) It extends to the while of India, except the State of Jammu and Kashmir.
(3) It shall comes into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
(2) (1) In this Act, unless the context otherwise requires, -
(a) “aggravated sexual assault” has the same meanings as assigned to it in section 5;
(b) “aggravated sexual assault” has the same meaning as assigned to it in section 9;
(c) “armed forces or security forces” means armed forces of the Union or security forces or police forces, as specified in the Schedule;
(d) “child” means any person below the age of eighteen years;
(e) “domestic relationship” shall have the same meaning as assigned to it in clause (f) of section 2 of the Protection of Women from Domestic Violence Act, 2005;
(f) “penetrative sexual assault” has the same meaning as assigned to it in section 3;
(g) “prescribed” means prescribed by rules made under this Act;
(h) “religious institution” shall have the same meaning as assigned to it in the Religious Institutions (Prevention of Misuse) Act, 1988;
(i) “sexual assault” has the same meaning as assigned to it in section 7;
(j) “sexual harassment” has the same meaning as assigned to it in section 11;
(k) “shared household” means a household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child;
(l) “Special Court” means a court designated as such under section 28;
(m) “Special Public Prosecutor” means a Public Prosecutor appointed under section 32.
(2) The words and expressions used herein and not defined but defined in the Indian Penal Code, the Code of Criminal procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or the Acts.
CHAPTER II
SEXUAL OFFENCES AGAINST CHILDREN
A. PENERATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR
3. A person is said to commit “penetrative sexual assault” if –
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
4. Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extent to imprisonment for life, and shall also be liable to fine.
B. AGGRAVATED PENETRATIVE SECUAL ASAULT AND PUNISHMENT THEREFOR
5. (a) Whoever, being a police officer, commits penetrative sexual assault on a child –
(i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child –
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or
(g) whoever commits gang penetrative sexual assault on a child.
Explanation. – When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a child, which –
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently, or
(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;
(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or
(l) whoever commits penetrative sexual assault on the child more than once a repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or
(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or
(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or
(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or
(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.
6. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extent to imprisonment for life and shall also be liable to fine.
C. - SEXUAL ASAULT AND PUNISHMENT THEREFOR
7. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
8. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extent to five years, and shall also be liable to fine.
D. –AGGRAVATED SEXUAL ASAULT AND PUNISHMENT THREFOR
9. (a) Whoever, being a police officer, commits sexual assault on a child –
(i) within the limits of the police station or premises where he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer, or
(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child –
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the security or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or
(g) whoever commits gang sexual assault on a child.
Explanation. – when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits sexual assault on a child, which –
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or
(l) whoever commits sexual assault on the child more than once or repeatedly; or
(m) whoever commits sexual assault on a child below twelve years; or
(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or
(o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or
(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits sexual assault on a child knowing the child it pregnant; or
(r) whoever commits sexual assault on a child and attempts to murder the child; or
(s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or
(t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or
(u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault.
10. Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
E. – SEXUAL HARASSMENT AND PUNISHMENT THEREFOR
11. A person is said to commit sexual harassment upon a child when such person with sexual intent, -
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefore.
Explanation. – Any question which involves “sexual intent” shall be a question of fact.
12. Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extent to three years and shall also be liable to fine.
CHAPTER III
USING CHILD FOR PORNOGRAPHIC PURPOSES AND PUNISHMENT THEREFOR
13. Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes –
(a) representation of the sexual organs of a child;
(b) usage of a child engaged in real or simulated sexual acts (with or without penetration):
(c) the indecent or obscene representation of a child, Shall be guilt
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