Chapter 1-f
Chapter 1-f
Chapter 1-f
INTRODUCTION
“There is no trust more sacred than the one the world holds with children. There is
no duty more important than ensuring that their rights are respected, that their
welfare is protected,that their lives are free from fear and that they can grow up in
peace”-
Kofi Annan1
1
Kofi Atta Annan, winner of 2001 Nobel Peace Prize is a Ghanaian diplomat who served as the
seventh Secretary-General of the United Nations from January 1997 to December 2006.
1
such horror- child abuse – have become serious social problems in the
societies, yet it occurs infrequently or not at all in many of the world‟s
societies. Child abuse seem‟ s to increase in situations of rapid socio- cultural
change, urban migration, family disorganization, and the like, no clear cut set
of prognostic variables has been identified. Indeed, it seems that factors that
predict child abuse in one society will not be predictive in another. Only active
public and professional concerns led to the emergence of the truer picture of all
forms of the child abuse and neglect: physical, sexual, emotional, and failure to
thrive owing to maternal deprivation. 2 The present thesis is an attempt to make
a socio legal analysis of the juvenile justice system and study of child abuse
which is existing in different form and how they have been addressed in
different existing legislation and government policies.
Census 2011 had counted more than 440 million children in India below
18 years of age constituting 37% of the total population of the country. Within
the age group of 0-17 years, children between 0-6 years constituted about 14%
of the total population of children in India followed by 17% between 7-14
years and the remaining 6% in the age group of 15-17 years. 3 In the case of
India, a huge chunk of the child population is vulnerable at birth till they attain
self-sustaining capabilities, physically, emotionally and mentally. Thus a
holistic approach is needed for children to enable them to become active
participants in their own development and the development of the Nation.
2
Jill E. Korbin, Child Abuse and Neglect: Cross-cultural Perspective University of California
Press, 1983,page ix.
3
http://www.butterflieschildrights.org/Situation of Children and Child Rights in India.
pdf/accessed on 12/04/2017
their own development and the development of the Nation. A child who sells
flowers or magazines at a traffic light every day is not just another salesperson,
but someone who is deprived of a normal and secured family life, and denied
his or her basic rights of nutrition, health, education, and
development.4 Unfortunately, it is common to see children in vulnerable and
difficult situations. At an age where they should be in school and learning,
children are married off; engaged in work– in farms, households, restaurants,
and in industries; trafficked for labour and sexual exploitation; and exposed to
abuse and violence.5
4
http://www.insightsonindia.com/wp-content/uploads/2013/09/child-protection-in-india.pdf,
accessed on 12/02/2017
5
Child Protection in India , Dora Giusti, Aneerudh Kulkarni
yojana.gov.in/topstory_details.asp?storyid=396 accessed on 14/03/2017
6
http://www.insightsonindia.com/wp-content/uploads/2013/09/child-protection-in-india.pdf
7
The Integrated Child Protection Scheme (ICPS) is a governmental program implemented by
the Government Of India to help secure the safety of children, with a special emphasis on children
in need of care and protection, juveniles in conflict or contact with the law and other vulnerable
children. Its primary purpose is to create a central structure to provide oversight and
standardization for pre-existing and evolving child protection schemes in India. Proposed in 2006
and implemented in 2009, the ICPS is administered at the state level by state child protection
committees and societies and at the district level by district child protection societies, among other
institutions
8
http://www.childlineindia.org.in/pdf/MWCD-Child-Abuse-Report.pdf accessed on 12/02/2017
9
Child Protection in India - Insights Available at www.insightsonindia.com/wp-
content/uploads/2013/09/child-protection-in-india.pdf
Child marriage is also preventing girls from going to school, developing
skills to get a job and, growing to their full potential. In fact, India has the
record of having the highest absolute number of child brides: about 24 million.
This represents 40 percent of the 60 million world‟s child marriages10.
10
https://www.unicef.org/.../pdfs/SOWC-2011-Main-Report-chapter-2_12082010.pdfaccessed on
12/04/2017
Creating an atmosphere of open and frank discussions on child
protection, including engagement with the media and civil society to
raise and address child protection concerns; Building children‟s own
capacities to protect themselves and demand their rights, through
knowledge and skills;
11
The United Nations Children's Fund (UNICEF is a United Nations (UN) programme
headquartered in New York City that provides humanitarian and developmental assistance
to children and mothers in developing countries. It is a member of the United Nations
Development Group.
12
http://www.development4you.org/2013/09/child-protection-in-india.html accessed on 12/042017
block level child protection committees, with a mandate to ensure that children
are protected from all forms of violence, abuse, and exploitation, and on the
other, it ensures that a child sensitive and effective response mechanism is put
in place to provide specific services to children who have been victims of any
form of violence and exploitation. The scheme also brings with it adequate
provisions for financial and human resources to provide a range of services. 13
13
Ibid
juveniles who come in conflict with law and children who are in need of care
and protection. While the Law Division of the NHRC has been dealing with
complaints; the Policy Research, Projects and Programmes Division of the
NHRC has been monitoring the implementation of the related Act at the
national level as well as studying and recommending effective application of
those international instruments that intend to improve the overall functioning of
the juvenile justice system in the country14.
Article 14: The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India;
Article 15: The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them;
Article 15 (3): Nothing in this article shall prevent the State from
making any special provision for women and children;
Article 19(1) (a): All citizens shall have the right (a) to freedom of
speech and expression;
Article 21A: Free and compulsory education for all children of the age
of 6 to 14 years;
Article 39: The state shall, in particular, direct its policy towards
securing:
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are not
forced by economic necessity to enter vocations unsuited to their
age or strength;
19
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament
(December 2005). NCPCR is a statutory body under the CPCR Act,2005 under the administrative
control of the Ministry of Women & Child Development ,Government of India. The Commission's
Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in
consonance with the Child Rights perspective as enshrined in the Constitution of India and also
the UN Convention on the Rights of the Child.
involved in addressing the needs of each and every child. 20 It would also entail
solutions to the problem based on local context and dealing with the matter
with a sense of urgency. Therefore, a rigid centrally sponsored scheme with
directions from an approved budget line may not always be a suitable solution.
All actions are to be institutionalized and taken up in a predicable manner and
not in an ad hoc fashion. Also, considering that entitlements to health, nutrition,
education and so on are mutually interdependent it is necessary that the
concerned departments do not function in silos but converge their plans and
services at least at the level of block and district. 21
All legislations for protection of child rights have to take categorical and
unambiguous position on children‟s rights, ensuring state commitment and
obligation to provide all structures, institutions and processes form delivering
services to children. The legislations are to adhere to principles of universality
as against targeting equity and social justice to cover all children up to 18 years
of age. Special provisions for affirmative action for the disadvantaged children
are to be included in all legislations, in the framework of rights and universal
coverage. Many of these principles that are based on rights based perspective
20
National Commission For Protection of Child Rights available at www. ncpcr.gov.in/view_ file.
php?fid=407
21
Ibid
have been incorporated in some of the recent legislations such as the right to
education act or the act to protect children from sexual offences.22
(a) National policies: The major policies and legislations formulated in the
country to ensure child rights and improvement in their status include:
22
Ibid
23
availale at https://www.nls.ac.in/.../National%20charter%20for%20children% 20200/accessed
on 23/03/2017.
11
Survival, life and liberty;
(b) National Plan of Action for Children (NPAC), 2005 was formulated by the
then Department of Women and Child Development (now MWCD) in 2005.
The Plan is being monitored by the Prime Minister's Office. The Action Plan
aims at ensuring all rights to children up to the age of 18 years. It affirms the
government's commitment towards ensuring all measures for the survival,
growth, development and protection of all children. It also aims at creating an
enabling environment to ensure protection of child rights. States are being
encouraged to formulate State Plans of Action for Children in line with NPAC.
The National Plan has identified several key priority areas that include
children's right to survival, development, protection and participation besides
monitoring and review of policies and programmes. The NPAC also stresses
the need for budgetary allocations to achieve child protection goals.
24
available at https://www.loc.gov/law/help/child-rights/international-law.php/accessed on
12/04/2017.
exploitation. India is also a signatory to the International Conventions on Civil
and Political Rights, and on Economic, Social and Cultural Rights which apply
to the human rights of children as much as adults.
The purpose of these four core principles is to ensure the basic requirements of
civil, political, economic, social, and cultural rights and vice versa.Although
the Convention has been signed and ratified by the India delegations and
governments, they have actually chosen different national and international
policies concerning the implementation of the provisions, rules, regulations and
principles of the Convention.
Substance abuse among children has become an issue of concern
throughout the world. Increasing substance abuse and its impact on physical
and psychosocial health is a worldwide public health concern affecting the
early youth and subsequently the whole life of the individuals. We need to
guard the integrity of childhood now and into the future. Viciousness in the
lives of children can take direct and indirect forms.
confidentiality
Section 23: Punishment for cruelty to juvenile or child: The Act provides for
punishment (imprisonment up to six months) if a person having the actual
charge of, or control over, a juvenile or the child, assaults, abandons, exposes
or wilfully neglects him/her, causes or procures him/her to be assaulted,
abandoned, exposed or neglected in any manner likely to cause such
juvenile/child unnecessary mental or physical suffering.
Section 24: Employment of Juvenile or Child for Begging: The Act provides
for punishment (imprisonment for a term which may extend to 3 years and
fine) if a person employs or uses any juvenile/child for the purpose or causes
any juvenile to beg.
Section 26: Exploitation of Juvenile or Child Employee: The Act provides for
punishment (imprisonment for a term which may extend to 3 years and fine) if
a person ostensibly procures a juvenile/child for the purpose of any hazardous
25
available at www.un.org/documents/ga/res/40/a40r033.htm/accessed at 23/06/2017
employment, keeps him in bondage and withholds his earnings or uses such
earning for his own purposes.
Child sexual abuse laws in India have been enacted as part of the
nation's child protection policies. Fifty three percent of children in India face
some form of child sexual abuse. The need for stringent law has been felt many
times.26Goa Children's Act, 200327was the only specific piece of child abuse
legislation before the 2012 Act. The Parliament of India passed the Protection
of Children against Sexual Offences Bill, 2011regarding child sexual abuse on
May 22, 2012 into Act.28The rules formulated by the government in accordance
with the law have also been notified in November 2012 and the law has
become ready for implementation.29Before POCSO Act, most of the sexual
offences are covered under IPC 1860. But does not provide for all types of
sexual offences against children and its general legislation. It does not
distinguish between adult and child victims. Child sexual abuse was prosecuted
under the following sections of Indian Penal Code:
However, the IPC could not effectively protect the child due to various
loopholes like:
IPC 375 doesn't protect male victims or anyone from sexual acts
of penetration other than "traditional" peno-vaginal intercourse.
26
"Need stringent laws to curb child sexual abuse: Tirath". News.in.msn.com. 2012-03-053 March
2012. Retrieved 14 May 2012. Also see Taneja, Richa (13 November 2010). "Activists bemoan
lack of laws to deal with child sexual abuse". DNA India. Retrieved 14 May 2012.Also,"Need
stricter laws to deal with child abuse cases: Court". Indian Express. 12 April 2011. Retrieved
2012-05-1414 May 2012.
27
"CHILDLINE India Foundation: Documents - Cause View Point - CHILD SEXUAL ABUSE-
The Law and the Lacuna". Childlineindia.org.in. 2010-01-19. Retrieved 2012-05-14.
28
"Parliament passes bill to protect children from sexual abuse". NDTV. May 22, 2012
29
Law for Protecting Children from Sexual Offences
IPC 354 lacks a statutory definition of "modesty". It carries a weak
penalty and is a compoundable offence. Further, it does not protect the
"modesty" of a male child.
In IPC 377, the term "unnatural offences" is not defined. It only applies
to victims penetrated by their attacker's sex act, and is not designed to
criminalize sexual abuse of children.
POCSO ACT 2012: The new Act30provides for a variety of offenses under
which an accused can bepunished.
It defines a child as a person under age of 18 years age. It encompasses the
biological age of the child and silent on the mental age considerations. A recent
case in SC has been filed where a women of biological age 40yrs but mental
age 6yrs was raped. The victim's advocate argues that "failure to consider the
mental age will be an attack on the very purpose of act." SC has reserved the
case for judgement and is determined to interpret whether the 2012 act
encompasses the mental age or whether only biological age is inclusive in the
definition.31Finally in 2017 in the case of Ms. Eera v. State (Govt.NCT of
Delhi)32the court held that on a reading of the POCSO Act, it is clear to us that
it is gender neutral. In such a situation, to include the perception of mental
competence of a victim or mental retardation as a factor will really tantamount
to causing violence to the legislation by incorporating a certain words to the
definition. By saying “age” would cover “mental age” has the potential to
create immense anomalous situations without there being any guidelines or
statutory provisions. Needless to say, they are within the sphere of legislature.
To elaborate, an addition of the word “mental” by taking recourse to
interpretative process does not come within the purposive interpretation as far
as the POCSO Act is concerned.
30
The Protection of Children from Sexual Offences Act, 2012 pdf
31
encompass-mental-age/article17436626.ece
32
2017 SCC OnLine SC 787
POCSO Act, 2012 recognizes forms of penetration other than peno-
vaginal penetration33and criminalizes acts of immodesty against children too.
The act is gender-neutral. With respect to pornography, the Act criminalizes
even watching or collection of pornographic content involving children 34The
Act makes abetment of child sexual abuse an offense 35It also provides for
various procedural reforms,36making the tiring process of trial in India
considerably easier for children. The Act has been criticized as its provisions
seem to criminalize consensual sexual intercourse between two people below
the age of 18. The 2001 version of the Bill did not punish consensual sexual
activity if one or both partners were above 16 years37
The POCSO Act, 2012 make provisions for avoiding the re-
victimization of child at the hands of the judicial system and thus, it provides
for special courts which conduct the trial in-camera and without revealing the
identity of the child that is as child friendly as possible. Hence, the child may
have a parent or other known person present at the time of testifying and can
call for assistance from an interpreter, special educator, or other professionals
while giving evidence. Above all, the Act stipulates that a case of child sexual
abuse must be disposed of within one year from the date of the offence when it
is reported, providing speedy justice to these issues.
The act provides protection to all children under the age of 18 years
from the offences of sexual assault, sexual harassment and pornography. It
provides for stringent punishments, which have been decided as per the gravity
of the offence. The punishments range from simple to rigorous imprisonment
of varying periods along with fine.
Penetrative Sexual Assault (Section 3) - Not less than seven years which
may extend to imprisonment for life, and fine (Section 4)
33
The Protection of Children from Sexual Offences Act, 2012 Chapter 2
34
POCSO ACT 2012 Chapter 3
35
POCSO ACT 2012 chapter 4
36
POCSO ACT 2012 Chapter 5,6,7
37
"Good act, bad provision". The Hindu. 26 May 2012. Retrieved 9 September 2014
Aggravated Penetrative Sexual Assault (Section 5) - Not less than ten
years which may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7) - Not less than three years which may extend
to five years, and fine (Section 8)
Aggravated Sexual Assault (Section 9) - Not less than five years which
may extend to seven years, and fine (Section 10)
Sexual Harassment of the Child (Section 11) - Three years and fine
(Section 12)
Use of Child for Pornographic Purposes (Section 13) - Five years and
fine and in the event of subsequent conviction, seven years and fine
(Section 14 (1)).
38
The Immoral Traffic (Prevention) Act, 1956 available at https://indiankanoon.org/doc/69064674
Section 6: If any person is found with a child in a brothel it shall be
presumed, unless the contrary is proved, that he has committed an
offence of detaining a person in premises where prostitution is carried
on;
Omission of Section 8;
Section 13(2-5) confers the powers of Special Police Officer under this
Act to the Sub-inspector in the place of Inspector of Police;
From the said Schedule, the entry relating to Section 8 of the ITPA is
being omitted as a consequential nature.
Child Labour (Prohibition and Regulation) Act, 1986: The Act was
formulated to eliminate child labour and provides for punishments and
penalties for employing children below the age of 14 years in from various
hazardous occupations and processes. The Act provides power to State
Governments to make Rules with reference to health and safety of children,
wherever their employment is permitted. It provides for regulation of work
conditions including fixing hours of work, weekly holidays, notice to
inspectors, provision for resolving disputes as to age, maintenance of registers
etc. Through a recent notification, child domestic workers up to 14 years of age
working in hotels and dhabas have been brought within the purview of the Act.
It is one step towards the total elimination of child labour.
The Prohibition of Child Marriage Act, 2006: The Child Marriage Restraint
Act, 1929 has been repealed and the major provisions of the new Act include:
The Court may also make an interim or final order directing the male
contracting party to the child marriage or parents or guardian to pay
maintenance to the female contracting party to the marriage and for her
residence until her remarriage;
The Court shall make an appropriate order for the custody and the
maintenance of the children of child marriages;
Examine and review the legal safeguards provided by or under any law
for the protection of child rights and recommend measures for their
effective implementation;
Prepare and present annual and periodic reports upon the working of
these safeguards;
STATEMENT OF PROBLEM
With the repeated string of sexual abuse or rape of children being reported
across the nation and a public outcry raging on the streets like molten lava
flowing uncontrolled from a bursting volcano, the victimized and abused child
suffers in silence. Traumatized, dejected and horrified family members of
unfortunate victims find themselves helpless, confused and unable to cope up
with the heinous crime. Even though on 22 May 2012, the Parliament passed
the Protection of Children against Sexual Offences Act, 2012 (POCSO) and
which came into force on 14 November 2012, this special law to protect
children from offences of sexual assault, sexual harassment and pornography,
remains an unimplemented law, unknown to most and beyond knowledge or
information of those who need to apply it. Sadly, the result is that POCSO, an
Act, which is a necessity in India where,as per census 2011 more than 440
million children counted below 18 years of age constituting 37% of the total
population of the country.Over 53 percent of children reportedly surveyed in
2007 stated that they had experienced one or more forms of sexual abuse, is not
complied with despite being on the statute book. Rhetoric demands stiff
penalties, expeditious new laws and fast track courts little realizing that
POCSO, as a wholesome law already says it all. The researcher problem is
based on certain drawbacks in the POCSO law around the following issues
which will be specifically focused which undermines the effectiveness of
existing legislation.
1. Consent: if the child/adolescent refuses to undergo medical examination
but the family member or investigating officer is insisting for the
medical examination, the POCSO Act is silent and does not give clear
direction. There is an urgent need to clarify the issue of consent in such
cases. However, it would be prudent to take informed consent from
parent when the survivor is a child (below 12 yr) and consent from both
parent and the victim, if the survivor is an adolescent (age group from
12 -18 yr). However, emergency treatment needs to be initiated without
getting into these consent issues or legality to protect the life of the child
Moreover the act has raised the age of consent from 16 to 18 years
without considering scientific evidence on adolescent sexuality.
Children involved in sexual activity will be treated as juveniles in
conflict with the law. In cases of consensual sexual relationships
between those in the age group of 16 and 18 years, how can we
distinguish between the victim and the perpetrator?
3. Treatment cost: The law has casted legal obligation on the medical
fraternity and establishment to provide free medical care to the
survivors. If there are no proper facilities or costly procedure is required,
the State should take responsibility of reimbursing the cost, otherwise
hospital may provide substandard medical treatment procedure or may
deprive the survivor from comprehensive treatment.
4. Consented sexual intimacy: Sexual contact between two adolescents or
between an adolescent and an adult are considered illegal under the
POCSO Act 2012, because no exception has been granted in the Act
under which an act of sexual encounter with a person under 18 is an
offence irrespective of consent or the gender or marriage or age of the
victim/the accused. However, it is proposed that any consensual sexual
act that may constitute penetrative sexual assault should not be an
offence when it is between two consenting adolescents, otherwise both
the adolescents will be charged under the POCSO Act, 2012. On the
other hand, the latest amendment of the Indian Penal Code concerning
rape laws in 2013 clearly reports that the age of consent for sex has been
fixed to 18 yr, hence, anyone who has consensual sex with a child below
18 yr can be charged with rape, which may increase the number of rape
cases. One more serious repercussion is that obstetric and gynecologists
need to report all the MTP (medical termination of pregnancy) cases
performed on children (below 18 yr).
6. Most states have not yet notified special courts or appointed special
public prosecutors. Cases of offences against children are therefore still
being brought before regular criminal courts, thus denying children their
right to a child-friendly system and structure.
9. Reporting: It is well known that the cases of child sexual abuse are
usually not reported. Further, knowing and reporting child sexual
offence is highly difficult and highly personal decision for many family
members and also for survivors. Both survivors and family members
feel embarrassed and ashamed bearing the guilt, anger, frustration and
emotional turmoil of the act. The fear of re-victimization because of
medical examination, criminal justice system and poorly informed
society members keeps them silent and undergo torture for long
duration. A golden rule to all the medical professionals working with
children is to report all reasonable degree of suspicion in child sexual
abuse to the legal authorities.39 Hence, professionals need to keep watch
on sexual abuse, explore and assess the child thoroughly.
The researcher will also be mapping the issues on the following research
questions:
5. What are the laws related with Child sexual Abuse in India and in other
Countries.
7. How effective the POCSO Act 2012 and Juvenile Justice (Care and
Protection Act) Act 2015 and its implementation.
Thus, the purpose of this study is to delve into the socio-legal aspects of
child sexual abuse across India and reasons behind despite the existence of a
various legislation that is prohibitive in nature towards the specific issue of
child sexual abuse.
To find the reasons for the slow process of and resistance to change.
To bring the true picture of the various bodies framed under the Act and
whether they discharge their duties effectively.
Whether the existing provisions are sufficient for proper need, care and
education to the juvenile/child in the homes
To study the profile of the abused children and the social and economic
circumstances leading to their abuse.
Childhood sexual abuse and review the impact it can have, explore the
long-term effects and symptoms associated with childhood sexual abuse,
and counseling implications.
RESEARCH METHODOLOGY
DATA COLLECTION
The study will be carried through doctrinal research into the various
arguments brought through by child rights activists, government bodies,
legislative actions, recent court cases, law commission reports and practices in
other countries that could contribute towards the development of law in India.
Qualitative data collected through a cross-sectional doctrinal research would
aid the researcher in crystallizing the issues.
For the purpose of empirical study on CSA data was collected by way of
semi-structured questionnaire. A questionnaire containing 30 questions was
prepared.To test current situation of CSA help from an on-line survey will be
taken to gather primary source data from institutions currently engaged in the
survey on this issue to collect quantitative data. The researcher proposes to
undertake both empirical and non-empirical study to understand and analyze
the sensitive issue, keeping in mind the socio-cultural background of the Indian
society.
This study seeks to address one of the burning problems our country is
facing today. Child sexual abuse as had been already explained above had been
in existence since time immemorial but its nature and characteristics have been
growing with every passing day. The observations and information received by
carrying out the preliminary study have been that there is a serious drawback in
the Prohibition of Child Sexual Offences Act, 2012. It has also come to light
that there is a need to harmonize the various laws and establish primacy of the
POCSO over the other existing laws.