SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

material or detain any person for this purpose. 499 Persons who fail to provide or provide false
information to officers are liable to imprisonment. 500
Child sexual abuse is addressed in India primarily through Sections 375 and 377 of the
Indian Penal Code, 1860. Section 375 provides that sexual intercourse with a girl under the
age of 16 is rape regardless of her consent. In Sakshi v. Union of India & others 501 the
Supreme Court of India deliberated on procedural aspects in child sexual abuse and rape
cases and held that in trials of such cases the identity of the victim or witnesses for the
prosecution should be able to be able to attend and participate in the trial in a manner that
prevents the disclosure of their identity to the accused. Further questions put by the accused
to the victim or witnesses should be given in writing to them in a clear manner which is not
embarrassing.
As discussed in the Chapter 2 on de-criminalisation of same-sex conduct, the Delhi High
Court was asked to determine the constitutionality of Section 377 in so far as it covered adult,
consensual, same sex conduct. 502 The reason for this limited plea by the petitioners (instead of
asking for the entire provision to be struck down) was the fact that Section 377 is the only
provision available in Indian law to address the sexual abuse of boys and non penile-vaginal
sexual abuse of girls. Accordingly, the Delhi High Court only took adult, consensual samesex
conduct out of the purview of Section 377 while urging the government to implement the
Report of the Law Commission to update India’s law in sexual violence and provide for a
proper provision related to child sexual abuse.
India’s Information Technology Act, 2000 specifically punishes publication, transmission,
browsing, downloading, exchanging or promoting of material in electronic form which
depicts involved in sexually explicit acts or conduct. In 2008, the Act was amended to
include, among other things, offences related to child pornography and child sexual abuse.
The law punishes any person who cultivates, entices or induces children into an online
relationship for purposes of indulging in a sexually explicit act or facilitates the abuse of
children online. In relation to child pornography, the law punishes not only the transmission
of material depicting children in sexually explicit conduct but also whoever “collects, seeks,
browses, downloads, advertises, promotes, exchanges or distributes,” such material. An
exception is carved out for publication which is proved to be justified for public good as it is
in the interest of science, literature, art or learning or for bona fide heritage or religious
purposes. A child is defined to be any person below the age of 18 years. 503
Goa is the one state in India that has brought a child rights legislation into force, and its
popularity as a tourist destination has played no small part in creating the impetus for this
law, the Goa Children’s Act, 2003. This law is expansive in its coverage and touches on
issues of, inter alia, sexual abuse, exploitation, and HIV. It lays down in broad terms the
rights of the child and declares that the provisions of the Convention on the Rights of the
Child which has been acceded to by the Indian government are now the law in the state of
499 Sections 34, 35, ibid.
500 Section 37, ibid.
501 AIR 2004 SC 3566
502 Naz Foundation (India) Trust v Government of NCT of Delhi & others, WP(C) No.7455/2001 [Delhi High
Court], Date of Decision: 2nd July, 2009
503 Section 67B, Information Technology Act, 2000 (India)
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