Anumeha Jain & Viral Agarwal, III year of B.B.A.,LL.B. from New Law College, Bharati Vidyapeeth University
India is the second-most populous country in the world and the latest Census 2011 reveals that it’s home to 17% of the world's population. About nineteen percent of the world's children live in India, which constitutes 42 percent (more than one third) of India’s total population and around 50 percent of these children need care and protection. India signed the United Nations Convention on the Rights of the Child and promised to protect its children from all forms of sexual exploitation and sexual abuse. Article 34(a) of UNCRC state machinery to prevent the inducement or coercion of a child to engage in any unlawful sexual activity.
Even after having the highest number of sexually abused children in the world, there is no special law in India. Child Sexual Abuse (CSA) is a form of child abuse in which an adult or older adolescent person, who is in a relationship of responsibility, trust or power, uses a child for sexual stimulation. CSA means contacts or interactions between a child and an older or more knowledgeable child or adult (stranger, sibling, parent, or caretaker) when the child is being used as an object of gratification for the older child’s or adult’s needs. Such contacts or interactions are carried out against the child using force, trickery, bribes, threats or pressure.
A large number of such cases occur in the home, school or the neighbourhoods next door. In India, many incidents of CSA have been recorded in the past ranging from incest, rapes, sexual abuse, digital rape, sodomy, inappropriate touch to sexual assaults. What makes this worse is that such abuse is inflicted upon a child by a person in his immediate circle and a stunning majority of these cases go unnoticed. It has come to notice that sexually abused children suffer from more psychological symptoms than normal children. The risk of harm increases if the abuser is a relative, if the abuse involves intercourse or attempted intercourse, or if threats or force are used. Most importantly, these psychological effects prevent the normal developmental processes and positively correlate with mental health problems in later life. A minor faces severe traumas after sexual assault.
Sexual abuses on children are mainly in two forms, first is the severe form which includes
a) Assault, including rape and sodomy
b) Touching or fondling a child
c) Forcing a child to exhibit his/her private body parts
d) Nude photography of a child
Other forms include
a) Forcible kissing
b) Sexual advances towards a child during travel
c) Sexual advances towards a child during marriage ceremonies
d) Exhibiting before a child
e) Exposing a child to pornographic things and objects
The first-ever National Study on Child Abuse was conducted by the Ministry of Women and Child Development, which included 12,447 children, 2,324 young adults and 2,449 stakeholders across 13 states. Different forms of child abuse were covered under the survey, which is physical, sexual and emotional as well as female child neglect, in five evidence groups, namely, children in a family environment, children in school, children at work, children on the street and children in institutions.
A study which was done by the RAHI foundation in five major cities in India looked at the experiences of English-speaking middle- and upper-class adults. About 76% reported sexual abuse on children were reported and about 35% of the attacks took place between the ages of twelve and sixteen, while 19% took place under age eight.
A huge number of reports on “disappearances” of rape victims are found. Children usually leave the home because of the fear or threats which they receive from the rapist. Some of the children are even thrown out from their own home by the parents when the name of a rape victim comes out openly.
As per the federal police, in India, around 1.2 million children are believed to be involved in prostitution. As per the studies and surveys sponsored by the ministry of women and child development it is estimated that about 40% of all India's prostitutes are children.
Not a single law in India covers all the dimensions of child abuse. The Indian Penal Code (IPC) does not define child abuse as a specific offence, and it does not offer legal remedy and punishment for it. Under Indian law, "child sexual abuse" is a very broad term describing criminal and civil offences in which an adult engages in sexual activity with a minor. In India, laws do not distinguish child sexual abuse from rape. Indeed, the laws against child sexual abuse are still in their developing stage.
Sections 375 and 376 of the Indian Penal Code refer to rape, which defines rape as penile penetration of the vagina only. The drawbacks of these sections are that they neglect sexual crimes that include digital, oral, or object penetration, as well as sexual crimes against men. Punishment for offences related to rape or sodomy or “unnatural sex” broadly laid down by the IPC. These laws do not apply to acts like fondling, kissing, filming children for pornographic purposes, etc. With boys, only proven sodomy is a punishable offence but other than that, there is no clear definition of sexual abuse. The picture gets hazier when the act is committed by a child against some other child. In that case, the Juvenile Justice Act comes into force that also does not specifically address the issue of child sexual abuse.
Rape is considered to be an offence under the IPC, but lesser forms of sexual offences against children, are covered by grossly inadequate and inexact provisions such as “outraging the modesty of a woman.” How do we define modesty and apply Section 354, on outraging the modesty of women, concerning children? The gravity of the offence under Section 509, dealing with obscene gestures, is less. But in all such cases, the child’s psyche may be affected as severely as in rape.
THE PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES BILL, 2011 (POCSO 2011)
Looking at the increasing number of cases on child abuse and other statistical Figures were enough to convince that a special law is mandatory to effectively tackle the issue. To protect children against sexual abuse, sexual harassment and child pornography the Union Cabinet has passed a first-of-its-kind Bill in March 2011, dealing exclusively with sexual offences against children which threatens stringent action against the offenders and providing for
· Establishing special courts for trial of such offences
· A jail term up to 7 yrs and a fine of Rs.50,000 for such crimes
The main aim of this new law is to cover all new aspects of sexual offences against children which are not covered elsewhere. This bill distinguished sexual offences committed against children by persons in a position of trust and authority over children.
It a dark reality that sexual abuse on children is taking place regularly and now any news regarding the same has become a common thing. Another problem with these abuses is that they go unnoticed and unreported, children are often scared to share these things with parents or any other elder member of the family, apart from this it is very important that merely enacting legislation will not be enough unless the law is strictly enforced.
Enforcing the law is not the only step to stop the abuse of children, but parents, teachers and others in the community have a vital role to protect children from sexual exploitation and abuse. Children are considered to be the country's greatest human resource and a measure of the country's social progress lies in the wellbeing of its children: that they are healthy, educated, safe, and happy and have access to life opportunities. We must eradicate Child Sexual Abuse as early as possible. This will help India to shine brighter and will also develop a crime-free environment, as children are the leaders of tomorrow.