What Criminal Law Can and Cannot Do for the Weaker Sections
Chapter One Hundred Nine
Syllabus topic 4, "Violence against the Weaker Sections."
Pages 478 to 482 of 663
The module's closing assessment: six protective statutes, and the question why the violence they answer has not fallen.
In one line: criminal law can name a wrong, express a society's condemnation of it, deter where detection is likely, and compensate where a scheme provides for it; what it cannot do is remove the conditions that produce the wrong, and every statute in this module is an attempt to reach a structural problem with an instrument built for individual acts.
Why this chapter exists
Because the last question on a paper is usually the general one, and because a student who has been through Module III has six statutes and a great many cases and no way to say what they add up to. This chapter is the assessment.
The six statutes, and what each was for
| Statute | The group | The central provision |
|---|---|---|
| Protection of Children from Sexual Offences Act 2012 | The child | Penetrative and aggravated sexual assault, presumptions, the child-sensitive trial |
| Juvenile Justice (Care and Protection of Children) Act 2015 | The child in an institution | Sections 74 to 83, cruelty, begging, intoxicants, corporal punishment, use by a militant group |
| Rights of Persons with Disabilities Act 2016 | The disabled person | Section 92, the offence of atrocity |
| Transgender Persons (Protection of Rights) Act 2019 | The transgender person | Sections 3 and 18 |
| Prohibition of Child Marriage Act 2006 | The married child | Sections 3, 9 to 12 |
| Bonded Labour System (Abolition) Act 1976 | The bonded and migrant worker | Sections 2(g) and 4 |
Add to those the Domestic Violence Act 2005, the sexual harassment statute of 2013, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 which Module IV takes up, and the general criminal law itself.
What criminal law has actually done
Be fair before being critical; an answer that is only critical reads as unconsidered.
It named wrongs that had no name. Before 2012 there was no offence describing sexual assault on a child that was not framed around a woman's modesty. Before 2016 there was no offence describing the destruction of a person's wheelchair as a wrong to the person. Before 2019 no statute in India used the word transgender. Naming is not nothing: what has no name is not counted, and what is not counted is not addressed.
It removed defences. The marital rape exception now stops at eighteen. The consent of a child under eighteen is irrelevant under POCSO. A custom or agreement requiring bonded labour is void. Each of these is the removal of a lawful excuse that violence previously enjoyed.
It shifted burdens. POCSO presumes the culpable mental state. Section 3(3) of the 2016 Act puts the burden on the person who discriminated to show a proportionate means to a legitimate aim. The 1976 Act presumes an agreement from social custom.
The rest of this chapter
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The rest of this subject
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