Skip to main content

Child Abuse and Protection Measures under Law In India

 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.
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more