Child Abuse and Protection Measures under Law In India
By Nemi Bhavsar
Child abuse is harm to, or neglect of, a child by another person, whether adult or child. Child abuse happens in all cultural, ethnic, and income groups. Child abuse can be physical, emotional - verbal, sexual or through neglect. Abuse may cause serious injury to the child and may even result in death. A problem that is only beginning to come into light in India rape, sexual abuse, and sexual harassment are worldwide issues of gender violence. There is very little research done in this area in India and only a few books have been written, keeping the subject even further from the consciousness of the country. However, the problem persists with staggering incidence, and Indians unique profile adds to the complexity of an already difficult subject. Fortunately, the issue of child sexual abuse is slowly becoming a more recognized issue, and for this reason, this paper will focus much on sexual abuse against minor children: the laws, victims, and perpetrators. Finally, an analysis of the aspects of Indian culture that make this issue particularly difficult to understand and cope with will be presented. The law mandates setting up of Special Courts to facilitate speedy trials in CSA cases. The paper highlights the intended benefits and the unintended consequences that might arise from the application of the law in the Indian context. Undoubtedly, the passing of POCSO has been a major step forward in securing children's rights and furthering the cause of protecting children against sexual abuse in conjunction with a related legislation to clamp down on child marriages called the Prohibition of Child Marriage Act 2006.
Child Sexual Abuse in India
Growing concerns about female infanticide, child rapes and institutional abuse of children led to the commissioning of the first large scale government sponsored research study to assess the extent and nature of child abuse in India (Kacker et al. 2007)1. The study, based on a well-designed methodology, covered 13 states (two states from each of the six geographic zones in the country) including states with the highest through to the lowest crime ratesinci of offences against children. Half of sexual abuses reported were committed by "persons known to the child or in a position of trust and responsibility" (Kacker et al. 2007: vii). Carson et al. (2013)2 survey of the current state of knowledge on CSA in India concluded that empirical studies report a much higher incidence of CSA than previously acknowledged by authorities or by families. The paper summarises the findings of several studies and reports that 1820 % of CSA occurs in the family and around 50 % in institutional settings.
Legal response to India
Until 2012, the only sexual offences against children recognized by the law were covered by three sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse without consent- section 376), outraging modesty of a woman (unspecified acts-section 354) and unnatural acts defined as "carnal intercourse against the order of nature with any man, woman or animal" (anal sex, homosexuality or bestiality-section 377).
Consequently, other forms of non-penetrative sexual assaults, harassment and exploitation were not explicitly recognized as crimes and therefore not recorded (assuming they were reported). Increased activism around child protection issues in the media and public discourse might partly account for the Government of India passing a special law called, 'The Protection of Children from Sexual Offences (POCSO) 2012'. This Act criminalises sexual assault, sexual harassment, and pornography involving a child (under 18 years of age) and mandates the setting up of Special Courts to expedite trials of these offences.
Age of Consent
All sexual acts described under POCSO are, without exception, considered to be criminal offences if they involve a 'victim' under the age of 18 years. This holds true regardless of the issue of consent or the age of the 'perpetrator'. In cases of consensual sex between two minors the concepts of victim and perpetrator become interchangeable as the law inexorably criminalises sexual behaviour for under- 18 year olds. The Act does not confer any sexual autonomy to children who may then be liable for committing sexual acts under the law. POCSO invariably criminalises a juvenile 'perpetrator' of CSA to be "dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000" [section 34(i)].
Judiciary on Child Sexual Abuse
Sakshi vs Union of India (2004) The Supreme Court developed guidelines for the conduct of child sexual abuse trials:
A] The screen or arrangement where the victim is or is to be made witnesses does not see the accused's body or features.
B] The questions put to a cross-examination on the behalf of the accused in so far as they are specifically relevant to the incident should be answered, in writing, to the president of the Court, who can refer them, in plain and not misleading language, to the victim or to witnesses.
C] Ample breaks, as required, should be permitted for the victims of child abuse or rape while giving testimony in court.
In Tara Dutt vs the State (2009):
The criminal law of our country did not recognize digital rape as a detestable offence. As a result, the petitioner has been convicted of the fact that a woman's modesty was insulted by criminal law in compliance with Section 354 of the Indian Penal Code.
Constitution of India and Protection of Children
The Constitution recognizes the children as the most vulnerable human beings and thus had made provisions correspondingly. They are the most affected than any other age group by the actions of the state and any other individual. The children are not seen as people who have a mind and vision of their own and are often guided by the adults. Since they have no political and economic power, their voices are often suppressed.
The Constitution obliges the State to provide free and compulsory education to all children from age of 6 to 14 years.
The Constitution prohibits the employment of any child below the age of 14 years to work in a factory, mine or any hazardous employment.
Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment.
Apart from these rights, they also have the right to be protected from being trafficked and forced into bonded labor, right to equality, right against discrimination and right to personal liberty.
The state must make special provisions for women and children, protect the interest of minorities, promote educational interest of weaker sections and also raise their standard of living.