Wed08232017

Last updateSat, 22 Jul 2017 6am

You are here: Home | Agenda | Child rights in India | Protection without rights?

Protection without rights?

By Debolina Dutta And Oishik Sircar

Child sexual abuse cuts across class, caste, cultural and economic backgrounds. But there is no specific law to make it an offence. The recent disclosure of the Nithari killings may prompt the government to pass the much-awaited and long-needed Offences against Children Bill, 2005. But more laws may not ensure more rights for children

When Pinki Virani wrote Bitter Chocolate in 2000, the book sent shockwaves through the ‘Happy Indian Family’. For the first time, popular consciousness started questioning what was understood to be the most secure space for children. We were aware of children’s vulnerability to sexual abuse -- but were convinced that it happened to ‘bad’ children, from ‘bad’ families, in ‘bad’ places. In case a ‘good’ child, from a ‘good’ family was abused, the abuser would invariably be a ‘bad’ stranger. Bitter Chocolate shattered this myth and laid bare the fact that sexual abuse of children cuts across class, caste, cultural and economic backgrounds; and that there was no specific law to make Child Sexual Abuse (CSA) an offence.

In 2007, while we are trying hard to recover from the horrors of the Nithari case -- in which many of the 38 children who have been reported missing in the small urban village on the outskirts of Delhi were allegedly brutally abused and murdered -- we still don’t have a specific law on CSA. Perhaps Nithari will be the impetus for the much-awaited and long-needed Offences against Children Bill, 2005 to become an Act.

In this article we will briefly look at the inadequacies of existing criminal laws in India that address CSA, trace the progress (or lack of it) of the law through some debates that have emerged out of the demand for a law on CSA, and, finally, look closely at the provisions of the Offences against Children Bill, 2005 to gauge its transformative potential and point out that the offence of CSA cannot be prevented only through legal means.

Criminal law and CSA

The Indian Penal Code (IPC) does not recognise CSA as an offence. It is through the application of certain other provisions in the IPC that a child sexual offender is criminalised -- these are, inter alia, the offences of rape (Section 375), outraging the modesty of a woman (Section 354), and ‘unnatural offences’ (Section 377). None of the above sections define in legal terms what constitutes CSA.

Section 375 defines the offence of rape as sexual intercourse committed by a man on a woman against her will or without her consent. The section goes on to provide certain other circumstances where the standard of will or consent does not apply. Among these, intercourse with a girl under 16 years of age, even with her consent, is rape. The section provides an explanation that “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”. Thus, only CSA of girl-children where peno-vaginal penetration has taken place falls within the ambit of this section. Most often CSA does not take this form, but ranges from exhibitionism, touching, to all forms of penetration (including penile-anal, penile-oral, object-vaginal, and finger-vaginal) (1). Penetration of the vagina with any other object, even if life-threatening, does not amount to rape.

In cases of CSA concerning girl-children, where penetration of the vagina has not taken place, Section 354 comes into operation. This section punishes the offence of assault or use of criminal force to outrage the modesty of a woman. And ‘modesty’ of a woman remains ambiguously defined through judicial interpretation. Especially in the case of CSA, it becomes even more confusing because the ‘victim’ is a child and whether as a child she can be said to possess modesty is a point of argument in court. In the 1967 Supreme Court (SC) judgment of State of Punjab v Major Singh, the judges deliberated on whether a female child of seven-and-a-half years could be said to be possessed of ‘modesty’, which can be ‘outraged’. Another major inadequacy of this provision is its quantum of punishment. For CSA amounting to the gravest forms of molestation just falling short of penetration, it stipulates a maximum of two years imprisonment, as against a minimum of seven years imprisonment for ‘rape’.

The most controversial provision of the IPC, Section 377, is purportedly meant to be applied in cases of CSA where penetration is not peno-vaginal in nature -- defined as ‘unnatural offences’ by the law. This section is gender-neutral. While it addresses the sexual abuse of boys, when the abuse does not include penetration it escapes the ambit of the section. This means that there is no provision in the IPC to criminalise molestation of boys. Section 377 is also inadequate because it is not a law designed to criminalise CSA, and thus fails to cover the majority of forms that the abuse might take.

Demands for a law on CSA

Child rights activists demanding a specific law on CSA have been facing many hurdles in the course of their engagements with the judiciary and State. On most occasions, the responses have either addressed procedural aspects of the law or have been ridden with conservative sexual morality.

The 1999 Supreme Court case of Sakshi v Union of India and Otherswas the first attempt to challenge inadequacies of the provisions in the IPC to make CSA an offence. Sakshi, a women’s resource centre working with victims of sexual abuse, filed the PIL in 1997 after the Delhi High Court declared that the case of an eight-year-old child, penetrated in three orifices by her father, could not be considered either rape or an ‘unnatural offence’. The PIL questioned the legal procedures during trial and urged the apex court to alter the definition of sexual intercourse, with reference to Section 375 of the IPC, to mean all kinds of sexual penetration on any type of orifice of the body, not just intercourse understood in the traditional sense. So that sexual abuse other than what is defined as rape could also be included. (2)

The 2004 judgment in this case, instead of broadening the definition of ‘rape’ (as was sought by the PIL) only focused on reducing the trauma of the victim by directing that she cannot be forced to answer insensitive and crude questions during court trials, and that a screen may be used so that the victim did not have to undergo the trauma of seeing the perpetrator.

Interestingly, in this judgment the court admitted the wide prevalence of CSA, yet it failed to clearly define sexual abuse and stated: “An exercise to alter the definition of rape... by a process of judicial interpretation is bound to result in a good deal of chaos and confusion and will not be in the interest of society at large...” (3)

Naina Kapur, Director of Sakshi, responding to the judgment pointed out: “What is the point of (introducing) procedural changes if the abuse doesn’t fall within the definition of rape or outrage of modesty or ‘unnatural acts’ as laid down by our law? I think this was a chance to really get justice for victims of sexual abuse by widening the definition of sexual abuse. But the judge (G P Mathur) has missed the opportunity and, by letting the law remain as it is, has rendered the whole exercise purposeless.” (4)

Pursuant to the order passed by the Supreme Court in the Sakshi case, the Law Commission of India (LCI) has reviewed the laws with regard to CSA and recommended amendments in consultation with Sakshi and other organisations (5). The major amendments recommended in the 172nd Report of the LCI were that the offence of ‘rape’ be substituted by ‘sexual assault’, which would make it gender-neutral and bring into its fold a range of sexual offences and not merely forced peno-vaginal penetration. The report also recommended the deletion of Section 377.

The issue of CSA was again raised in the legal arena when, in 2001, Naz Foundation, a Delhi-based organisation working on issues of HIV/AIDS, filed a petition in the Delhi High Court asking for the ‘reading down’ of Section 377. The petition demanded that adult, consensual and private sex be taken out of the purview of this section. A demand for reading down was made instead of a complete repeal of the section by the petitioners, keeping in mind the lacunae in the IPC regarding CSA. However, in response to the petition, the government sought the dismissal of the petition on exactly the same grounds, stating that it complements the lacunae in rape laws for prosecuting child sexual offenders. Thus we found the government hiding behind the fig leaf of Section 377 to absolve itself of the responsibility of passing a separate law on CSA, and perpetuating homophobia in the process.

As has been noted in a report titled ‘Rights for All’ (6) (RFA) by the coalition Voices Against 377: “…we have here not a mere oversight on the part of the government but a deliberate attempt to confuse issues… to pit child rights against gay and lesbian rights. There is little evidence... that the government is in fact concerned about the child’s search for justice. The government has itself acknowledged the need for a separate law to deal with CSA in its First Periodic Report to the UN Committee on the Rights of the Child. The government’s actions however fail to match the stated intention…” RFA further notes that despite demands by groups from all over the country, working on child rights, women’s rights and sexual rights, and even the National Commission for Women, the government has sought to ignore the demand for a law on CSA, and instead of proactively legislating on the issue has been creating hurdles in the way of these civil society pursuits.

Offences Against Children Bill, 2005

In 2005, the Ministry of Women and Child Development (MWCD) of the government, in consultation with NGOs, legal experts and social workers, drafted the Offences Against Children Bill, 2005. According to the MWCD website: “After wide consultations a draft Bill for Offences Against Children was prepared and circulated to the State Governments for their comments and views. After obtaining the comments of concerned Ministries and Departments a draft Cabinet Note has been referred to Law Ministry for their vetting.  The proposal will be placed before the Cabinet shortly.” The passing of this Bill would further India’s obligation to meet the standards in the UN Convention on the Rights of the Child, which it ratified in 1992.

In a post-Nithari situation, this Bill might actually get passed. However, the government’s response to CSA through the Bill is again laden with interpretive discrepancies and ‘protectionist’ approaches that do not necessarily enhance or create enabling conditions for the realisation of child rights.

This Bill defines CSA and makes ‘consent’ of the child the qualifying ground for ascertaining abuse when the child is between 16-18 years of age (Section 2 [c]). The law deems children below 16 years of age incapable of giving consent to any of the sexual acts mentioned in the Bill. The problem with such a provision is that it could actually lead to criminalising consensual sexual acts between young people. Under this law, if a child of 14 years has consensual sex with another child of 17 years, the 17-year-old, who is capable of consent, would have committed a crime against the other child, as he is deemed incapable of giving consent. Interestingly, in a situation where both are under 16, they are both guilty of committing sexual assault since their consent is invalid according to the law!

“The Offences Against Children Bill will create yet another provision which can be used to harass and penalise teenagers for victimless crimes, only to serve public morality,” observes lawyer Tarunab Khaitan. (7) “The importance of protecting children from sexual abuse by adults cannot be over-emphasised. However, to criminalise children under a legislation ostensibly meant to protect them solely on the basis of a prudish denial of child sexuality is simply moral policing,” he adds.

As pointed out earlier, the IPC stipulates the age of criminal responsibility at 7 years. It’s paradoxical that by virtue of this law the age at which a child can be held responsible for a sexual offence (should this be changed to sexual act?) is 16 years and above -- in effect meaning that children are capable of scheming and executing murder and rape at 7 years, but not capable of consenting to sex with someone of the same age till they are 16!

The punitive measures provided in the Bill also do not seem to adhere to standards of parity between offence and punishment. Section 10 states that any person who prepares, produces, facilitates, distributes or knowingly abets in the creation of child pornography will be liable to rigorous imprisonment of not less than seven years, but which may extend to 10 years, and a fine. While for distribution of child pornography the Bill stipulates a minimum punishment of seven years, according to Section 6, if a person is guilty of sexual abuse of a child between 16-18 years, the minimum punishment is imprisonment of not less than six months. This disparity allows a child sexual offender to get away with only six months’ imprisonment, whereas a distributor of child pornography -- who has not physically abused a child -- can be booked for seven years.

Though the framers of the Bill have given considerable attention to punitive measures, a glaring omission in the Bill is the absence of any provision for children with disabilities whose vulnerability to sexual abuse may be higher compared to other children.

Looking ahead…

The Offences Against Children Bill is indeed a useful piece of legislation on CSA (in the absence of any) and other forms of child abuse. But there is a need to be careful about an over-reliance on the law, believing that it will fulfil the promise of phenomenal transformation. Law reform demands by the women’s movement and the queer movement in India have not always reaped the desired results. Gaining from this experience, we need to remember that more laws may not ensure more rights for children. State accountability should also extend to creating enabling conditions where existing rights can be realised and enjoyed. The same responsibility lies with parents and teachers who are an integral part of the world around them. One of the major reasons for CSA continuing unabated is the culture of silence and shame that prevails in India -- an environment where stringent legal measures (as and when they come) become less useful.

A law like this will be relevant when it is able to move beyond merely criminalising acts that it identifies as CSA, but stipulates mechanisms that are in real terms accessible to children. A model can be found in the anti-sexual harassment cells set up at workplaces on the directives of the Vishakha guidelines. Similar cells in schools could address CSA -- the provision of ‘mandatory reporting’ under Section 32 in the Bill is a move in that direction as it makes persons in positions of trust or authority responsible for reporting abuse. The recent committee set up by the National Human Rights Commission (NHRC) to suggest guidelines to stop violations of child rights (8) -- a response to the Nithari case -- will hopefully assist the State in its endeavour to guarantee child rights.

Given that the Commissions for Protection of the Child Rights Act 2005 (9) has been passed, and we have in hand the draft Bill, we have an opportunity to capitalise on these documents by involving more child rights groups to fine tune and build on the provisions of the Bill. More importantly, any move towards making laws on child rights must involve the voices of children themselves, as stakeholders and active participants instead of mute and passive beneficiaries.

53% of Indian children face sexual abuse

A disturbing new study on child abuse, carried out by the government and civil society organisations, puts Assam at the top of the list of states where children face sexual abuse, followed closely by Andhra Pradesh and Delhi

A landmark study by the Indian government along with two civil society organisations -- Prayas and Save the Children -- and backed by the United Nations Children’s Fund admitted on April 9, 2007, that two-thirds of children in India are physically abused while more than half have faced some form of sexual abuse.

The first ever national-level study by the Ministry of Women and Child Development covered 13 of India’s 29 states with a sample size of 12,447 children in the 5-12 age-group, and 2,324 young adults. The survey didn’t have a margin of error.

The survey divided abuse into three categories: physical, sexual and emotional abuse. Some disturbing data from the survey:

  • Over 50% of children have experienced physical abuse, which includes slapping and corporal punishment. 88.6% of these children face physical abuse from their parents; 45.68% of them are boys.
  • Nearly 65% of schoolchildren reported being beaten by their teachers, mostly in government schools.
  • A shocking 53.22% of children have faced sexual abuse. The report says that most children do not report the matter to anyone. Half of the cases of sexual abuse (50%) were committed by people known to the child or in a position of trust and responsibility.
  • Every second child reported emotional abuse, in an equal number of girls and boys.
  • While 41.17% of children in the 5-12 age-group complained of being forcibly kissed, the figure came down to 25.73% in the 13-14 age-group. Similarly, around 25.86% of teenagers reported being forced to exhibit their private parts; the relevant figure for those below 12 was 35.86%.
  • Around 37.25% of children in the younger age-group, and 27.61% of teenagers, were sexually abused during travel. As much as 41.33% of children in the 5-12 age-group and 25.29% in the 13-14 age-group reported abuse during marriages and other family ceremonies.
  • What’s worse, the report says, “around 70% of abused children have never reported the matter to anyone”.
  • While Assam (86.26%) topped the list of states where children faced sexual abuse, Andhra Pradesh and Delhi followed closely at 72.83% and 72.26% respectively. Rajasthan reported the lowest complaints -- 29.36%.
  • Likewise, the percentage of sexually abused young adults (13-14 age-group) is high in Assam, at 77.5%, followed by Delhi at 69.11%. Goa reported the least complaints -- 23.01%. Kerala had the lowest incidence of child abuse.

Child rights activists have welcomed the study, saying it was positive that the government was waking up to the reality. “Homes, schools and neighbourhoods are not safe for our children as most people don’t even believe that hitting or sexually abusing a child is a serious crime,” says Kailash Sathyarthi of Bachpan Bachao Andolan (Save Childhood Movement). Activists say the existing laws must be strengthened and mindsets changed.

Endnotes

  1. ‘Doesn’t Every Child Count?’: A Study on the Prevalence and Dynamics of Child Sexual abuse in Chennai, conducted by Tulir -- Centre for the Prevention and Healing of Child Sexual Abuse, Chennai, and Save the Children, Sweden, available at http://www.tulircphcsa.org
  2. Recently, the UN Committee on the Elimination of Discriminations Against Women concluded its meetings with the Ministry of Women and Child Development and urged the government to widen the definition of rape. See ‘UN seeks file on riot victims’, The Times of India, Kolkata, February 16, 2007
  3. Quoted in Swapna Majumdar, ‘Redefining Abuse’, Women’s Feature Service, June 2004
  4. Ibid
  5. The other organisations were IFSHA (Interventions For Support Healing and Awareness), AIDWA (All-India Democratic Women’s Association) and NCW (National Commission for Women)
  6. Voices Against 377, ‘Rights for All: Ending Discrimination against Queer Desire under Section 377’, 2004
  7. Tarunab Khaitan, ‘Still a Matter of Shame’, The Telegraph, April 24, 2006
  8. ‘NHRC sets up panel on children’s rights’, The Times of India, Kolkata, February 16, 2007
  9. Available at
    http://wcd.nic.in/

(Oishik Sircar and Debolina Dutta are human rights lawyers)

InfoChange News & Features, June 2007