Suparna Sinha
in Criminal Law
Asked January 22, 2014

Is POCSO Act better for child rape victims?

  • 2 Answers

Is there any advantage for a child rape victim to proceed under the prevention of children and sexual offence act, 2012? Can traffickers be proceeded against under this act? I ask this because I hear proof or accusation of "sexual assault" is an important pre-requisite to proceed under the legislation? Is this the only shortcoming of the act?

Answers 2

Default avatar
Ashwini Panwar

The Doctrine of eminent domain generally speaking, means that the government or the King has the supreme power to take the property of any person over the interest of general public, over the years this has been made possible only by awarding compensation to the land owner of the private property. This doctrine is based on two maxims: i) salus populi supreme lex esto meaning that welfare of people is paramount law and ii)  necessita public major est quan meaning public necessity is greater than private necessity. So, eminent domain is the power of the sovereign to acquire the property from private hands for public use where the individual’s consent doesn’t matter. However, this doctrine is applicable only when there is no other substitute. Acquisition or taking possession of private property which is implied in clause (2) of Article 31 of Indian Constitution, such taking must be for public purpose. The other condition is that no property can be taken, unless the law authorizes such appropriation contains a provision for payment of compensation in the manner as laid down in the clause. To facilitate this power, the Constitution was amended and the Right to Property was reduced from a Fundamental Right to a Constitutional Right.

Sec. 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 talks about Preparation of Social Impact Assessment Study which involves consulting panchayats, municipalities etc. and the Study must list out the measures required to address the impact of acquisition. The Study is the published and evaluated too. Sec. 11 of the Act talks of the publication of notification for acquisition while Sec 12 states that the officers should carry out a survey of the land and should pay for damages under Sec. 13. Objections to the publications are heard under Sec. 15 while Under Sec. 16 Rehabilitation and Resettlement Schemes are prepared which is reviewed by the Collector under Sec. 17. While these are the steps that are followed at the initial stage, the following Sections are essential for the procedure:

Sec. 20 Land to be marked out, measured and planned including marking of specific areas

Sec. 21 Notice to the persons interested

Sec. 23 Enquiry and land acquisition award by Collector

Sec. 26 Determination of market value of land by Collector

Sec. 30 Award of solatium (compensation)

Agree Comment 0 Agrees about 5 years ago

Default avatar
Ashwini Panwar

First, I would answer the question whether traffickers can be punished under this Act. The  Act does not have any Section regarding trafficking. As far as the pre requisite for proceeding under this legislation is concerned, the Act deals with sexual assault, sexual harassment, use of child for pornographic purposes and abetment of and attempt to commit an offence. So, sexual assault is not the only pre requisite for this act. However, the fact that traffickers can’t be tried under this act doesn’t mean that it is shortcoming of this Act. The Immoral Traffic (Prevention) Act, 1956 deals with all the offences pertaining to trafficking. Some of the offences it deals with are listed below:

  •  Procuring, inducing or taking person for the sake of prostitution
  • Prostitution in or in the vicinity of public place
  • Seduction of a person in Custody
  • Coming to the Prevention of Children from Sexual Offences Act, 2012, you need to know that there was no law that extended to the entire country to protect children from Sexual Offences. The Indian Penal Code, 1860 was the only Act under which offenders could be punished. Section 354 of the Code talks about assault with an intent to outrage the modesty of a woman. So, Men (In our case, boys) are not covered under this. The same is the case with Section 375, which talks about rape. So, rather than serving as an advantage, this act fills a loophole that helped offenders to get away with the heinous crimes they used to commit.

    Agree Comment 0 Agrees about 5 years ago

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