Naming Child Sexual Abuse in Indian Law
Introduction
Children
are considered as those seeds which will grow up to enrich the future of our
society. The UN Convention on the Rights of Child, 1990, states -‘a child means every human being below the
age of eighteen years’ (Article 1). Rights of the child should subsume, if
not precede, human rights. According to the 2001 Census of India, 428 million people
in the country were aged below eighteen years constituting 42% of India's total
population1. By 2006, this figure rose to 430 million, clearly implying
that children are an undeniably significant constituency, replete with their
special needs and rights. Human rights involve making available equal
opportunities of justice and healthy growth to all individuals. Following from
this, child rights involve providing safe and healthy surroundings for balanced
emotional and physical growth and development of the child.
According
to WHO, ‘Child abuse or maltreatment
constitutes all forms of physical and/or emotional ill-treatment, sexual abuse,
neglect or commercial or other exploitation, resulting in actual or potential
harm to the child's health, survival, development or dignity in the context of
a relationship of responsibility, trust or power’2. Article 19
of the UN Convention on the Rights of Child, 1990, mandates signatory states to
take
all appropriate legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse, while in the care of parent(s), legal guardian(s) or any other
person who has the care of the child.
It
implies a recognition of the prevalence of child sexual abuse (CSA), it being a
gross violation of a child’s right to life, liberty, privacy, dignity and
safety. In this essay, I will provide an insight into various aspects of CSA, its
incidence and juridical provisions for punishment of perpetrators, in the Indian
context. I will discuss in brief the various laws that are used for convicting
offenders, drawing from the discourse around rape laws in the past three
decades, since the Supreme Court judgment on the Mathura
rape case in Maharashtra (AIR 1979, SC 185). It is easy to let
the project of naming CSA as a juridical object slide beneath the developments
around rape laws in India,
but I will refrain from taking that route. Here, I wish to argue for a special
law for offences related to children, with specific provisions for defining and
criminalising CSA. I will also emphasise on the need of a government ministry
exclusively dedicated to children’s welfare, rather than in its current form of
being clubbed along with women’s welfare.
Prevalence
of Child Sexual Abuse in India
In this section, I will briefly
discuss the concept of child sexual abuse (CSA) and its understanding in the
Indian context. According to the Study on Child Abuse in India:2007, ‘child abuse is a state of emotional,
physical, economic and sexual maltreatment meted out to a person below the age
of eighteen and is a globally prevalent phenomenon’ (2007:3). This section
will provide an insight into the prevalence of CSA across the country, gleaned
from some regional surveys conducted since the 1990s. With support from the
statistics cited one gathers that CSA is possibly one of the worst-kept secrets
of our society. The attempt to acknowledge and prove its presence by various
surveys is in constant conflict with actual prosecution of offenders. The
honour-shame complex induced by CSA prevents its reporting to the criminal
justice system. In addition to under-reporting, the difficulties in gaining
justice due to various reasons make it a particularly contested site of
activism.
Segal (1995) conducted a study across three
metropolitan cities in India
to determine if the abuse of children was prevalent among middle-class
professionals.
Interviews
were conducted with a stratified random sample of 319 subjects to assess their
attitudes toward child rearing and their expectations about child development.
These were then correlated with the methods of conflict resolution which had
been used with children in the past year. Of the subjects who participated in
the study, 56.9% reported having used "acceptable" violence, while
41.9% revealed that they had engaged in "abusive" violence (Segal
1995:217).
This sort of behaviour could be assumed as true of most other parts of India, cutting
across various economic strata (Karlekar 1998, Coomaraswamy 2005, Dabir and
Nigudkar 2007). For the purpose of this paper, I will refrain from exploring
the multiple dimensions of violence against women and children, restricting my
ambit of discussion to that of the juridical recognition of CSA and laws around
it. The Study on Child Abuse (2007) defines
child sexual abuse as…
inappropriate sexual behaviour with a
child. It includes fondling a child's genitals, making the child fondle the
adult's genitals, intercourse, incest, rape, sodomy, exhibitionism and sexual
exploitation. To be considered ‘child abuse’, these acts have to be committed by
a person responsible for the care of a child (for example a baby-sitter, a
parent, or a daycare provider), or related to the child. If a stranger commits
these acts, it would be considered sexual assault and handled solely by the
police and criminal courts (2007:3).
I consider this difference between ‘abuse’ and ‘assault’ particularly
problematic. While the act of CSA itself is condemnable, distinguishing between
the perpetrators of this criminal activity on grounds of being known/ unknown
to the child appears rather futile, or worse, an exercise in leniency. Does it
make the crime any less/ more heinous if committed by someone unknown to the
victim? If the offender is close to the victim, does the seriousness of the
crime aggravate, considering the breach of trust involved? A person’s regular
access to the child increases the probability of abuse being carried on for a
longer period of time, maybe with a regular frequency. ‘Assault’, in my
opinion, carries a deeper connotation of violence. By drawing a distinction
between ‘abuse’ and ‘assault’, the above definition pushes the intent and
intensity of criminality of the offender into a grey zone. It lends them to be
presented differentially in front of the law, complicating the judgment of
punishment. Any act of child abuse is a function of the unequal power relations
existing between the offender and the victim. An offender utilising this inequality
of power to commit an unlawful activity should not, in my opinion, be
differentiated on grounds of un/familiarity with the victim. That is an insult
to the victim’s agency, which has already been grossly violated by even one act
of abuse by anyone in a superior position.
I will now proceed to provide some statistics from various surveys, in
order to give a glimpse of the pervasiveness of CSA in India. In 1999, the Tata Institute of Social Sciences
published a report of a study done in 1994-1995 with 150 minor-age girls in Bombay. This report
recorded that 58 of the girls surveyed had been sexually abused before age 10
and 50 of these had been abused by a family member or friend of the family. In 1996, Bangalore-based organisation
Samvada conducted a study of school students. 47% of its respondents had been
sexually abused with 62% having been raped once and 38% having been repeatedly
violated. 31% of that group were under
the age of 10 when the abuses took place. In 1997, the NGO Sakshi conducted a
survey with 350 schoolgirls in New
Delhi. Amongst its respondents, 63% had been sexually
abused by of family members; and 25% of the girls had either been raped, made
to masturbate the perpetrator or perform oral sex3.
In March 2000, Patel and Andrew
(2001) did a study of 811 students of XI standard in eight schools of urban,
semi-urban and rural Goa. The average age was
16 years and 53% of the respondents were boys. Their results showed that,
A third of adolescents had experienced some form of sexual abuse
in the past year. Coercive sex had been experienced by approximately 6% of
adolescents. While rural boys were more likely to have experienced coercive
sexual intercourse than urban boys (10.3% v. 2.5%), urban girls were more likely to have experienced any
form of sexual abuse than rural girls (37.2%
v. 25.4%) (Patel and Andrew 2001:263).
Sharma
and Gupta (2004) ‘retrospectively
reviewed 117 cases of children below 16 years of age, referred for medico-legal
examination/ autopsy from January 2000 to June 2003 to Government Medical
College Hospital, Chandigarh’ (Sharma and Gupta 2004:249). According to
their review of the selected cases,
The youngest sexually abused child was 2 years of age. Girls 28
(77.8%) were more at risk of sexual abuse than boys (22.2%) whereas physical
abuse was more common in case of boys. Fondling was the commonest sexual abuse
reported in 14 (38.9%) cases followed by sexual intercourse in 8 (22.2%) and
insertion of finger in the vagina in 6 (16.6%). Sodomy was reported in 3 (8.3%)
cases. The most common place where the sexual abuse occurred was in the home of
either the victim 14 (38.9%) or the perpetrator 9 (25%). The victim of sexual
abuse in 30 (83.3%) of cases knew the perpetrator. The most common age group to
which the perpetrators belonged was 31–40years (Sharma and Gupta 2004:249).
Pagrare et al. (2005) conducted a study of 189 boys (aged 6-18years) to
assess the magnitude and pattern of sexual abuse among male inmates of an
observation home in Delhi.
Their conclusions stated that
Majority of boys were runaways and
38.1% had suffered sexual abuse. On clinical examination, 61.1% showed physical
signs and 40.2% showed behavioural signs of sexual abuse. Forcible sex was
reported by 44.4% of victims and 25% had signs suggestive of sexually
transmitted diseases. Strangers were the most common perpetrators of sexual
abuse (Pagrare et al. 2005:134).
Tulir- Centre for Prevention and Healing of Child
Sexual Abuse study was published in 2006. Its survey was conducted among 2,211
school going children in Chennai in 2005. The results indicated a CSA
prevalence rate of 42%. Children of all socio economic groups were found to be
equally vulnerable. While 48% of boys reported having been abused, the
prevalence rate among girls was 39%. 15% of both boys and girls had been
severely abused4.
Though
these are all instances of small-sample and limited-area based surveys, they do
provide us with a fair perspective on the widespread nature of CSA across parts
of India.
In 2005, the Ministry of Women and Child Development undertook a survey
covering 13 states in India with
a sample size of 12,447 children. In 2007, it published a comprehensive report
on the prevalence of child abuse in India- National Study on Child Abuse.
The Study reports that child sexual abuse in India begins as early as at five
years of age (and in many cases even before that- Virani, 2000), escalates
during pre-pubescence and peaks at 12 to 16 years. Some of the major findings of this nation-wide survey are
as follows:
·
53.22% children reported having faced one or more forms of sexual abuse.
·
5.69% of the child respondents reported being sexually assaulted.
·
50% abuses are persons known to the child or in a position of trust and
responsibility.
In
region-wise prevalence of CSA the highest was recorded Assam (57.27%) followed by Delhi (almost 41%), Andhra Pradesh (33.87%) and Bihar
(33.27%). 71% of sexual assault cases in India go unreported. Most
children did not report the matter to anyone. A total of 2324 respondents aged
between 18 and 24 years from 13 states were also interviewed. The overall percentage of sexual abuse shows
that every second child in the country is facing one or more forms of sexual
abuse (2007:97).
This
research methodology of this study has been critiqued on grounds of
overestimation (Dabir and Nigudkar 2863:2007). Nevertheless, its attempt to
comprehensively assess the status of children’s safety in India cannot be
undermined. Also, the difference in statistical
figures between those victims who were sexually ‘abused’ and others who reported
‘assault’, in this survey, takes me back to the discussion on the futility of
the distinction between these categories. I believe that this distinction only
serves to create unnecessary categories and complicate its presentation in
front of the law. An act of CSA severely violates the victim’s right to life,
liberty and privacy. This distinction between ‘abuse’ and ‘assault’ ends up
treating the victim as a lifeless object whose violation is measured in terms
of the un/familiarity with the perpetrator, rather than in terms of desecration
of the victim’s dignity.
Having
provided a perspective on the prevalence of CSA in India by referring to some studies,
I will now proceed to discuss the various laws that are used to in cases of
conviction of the offender for CSA. As mentioned earlier, there are no
exclusive laws for CSA in our country. Some of the provisions of the Indian
Penal Code that are used in cases of rape (Section 375 and Section 376), and
some other laws (Section 377 and Section 509) are usually
referred to in cases of CSA. This has been a cause of extreme contention,
especially because of the insensitivity with which such cases are argued and
examined in the court. Baxi argues that ‘the
“child” is constructed as a collaborator, child adult, non-adult and child-liar
during the testimony’ (Baxi 2012). Such experiences
are not only extremely disturbing to the child’s psyche but also very traumatic
in terms of cross-examination and proving the offender guilty of the crime. Childhood
is ignored as a substantial object to be considered in dealing with such cases.
The process of cross-examination subjects the child to adult-like treatment,
with the conditions and questions posed completely oblivious and almost
inconsiderate to the young age of the victim. ‘For, when childhood is not the object of juridical regulation then it
is these processes that reveal how the law causes injury to children testifying
to rape’ (Baxi 2012).
Naming
Child Sexual Abuse in Indian Law
In
this section, I will try and make a case for CSA to be recognised as a distinct
juridical category. The discussion will draw from the Indian women’s movement,
especially its activism for the reform of rape laws since Tukaram v/s State of Maharashtra (AIR 1979, SC 185), better known as the Mathura rape case. The sections of Indian
Penal Code which are used for punishment in cases of rape are also usually the
ones used for prosecution in cases of CSA. I will attempt to stay safe of discussing
all the tenets of the anti-rape movement in naming CSA in Indian law, as I wish
to lead this discussion to my main argument in support of a special law
exclusively for offences related to children.
I
begin by citing some of the convictions in cases of CSA across the country,
aiming to bring out the common threads of law and arguments used in such cases,
leading to the naming of the offence, despite it not having an exclusive law
criminalising it. This is followed by a discussion of some of the
recommendations of the 172nd Law Commission Report, 2000 to improve
the anti-rape laws. I will then use the recommendations of the Supreme Court in
the Sakshi v. Union of India
(AIR 2004 SC 3566) where the Court stated that, ‘The cases of child abuse and rape are increasing at alarming speed and
appropriate legislation in this regard is, therefore, urgently required’ (2004
SC 3566:35) to supplement my argument for a special law naming
and criminalising offences against the child.
In
Lohana Vasantlal Devchand And ... vs The State (AIR 1968 Guj 252) the Gujarat High Court (HC)
upheld the decision of a Judicial Magistrate granting appropriate punishment to
two men on counts of sodomy and one to oral penile penetration of a juvenile
boy in Rajkot. The HC’s judgment noted the lack of a definition of sodomy,
contained a discussion on penetration and used the criteria specified in
Section 377 to confirm that the act in question amounted to an offence. The
Rajasthan HC in Kedar Nath v/s State of
Rajasthan (1985 (2) WLN 560) while hearing an appeal filed by the accused
endorsed the decision of Ajmer Sessions Court judge which had found the
offender guilty under Section 377 (‘unnatural intercourse’) and 302 (murder) of
the IPC. The medical reports showed the victim (a 13 year old boy) had been ‘subjected to carnal intercourse against the
course of nature’ and had died due to asphyxia (pp. 2). In a 2006 case with
exactly the same crimes committed against an 8-year old boy (Jai Prakash v/s State Of Rajasthan Raj
1548, 2006), the judge noted that ‘considering
the menace of child abuse, deterrent punishment should be granted in cases of
child abuse’.
The Jammu HC
while reviewing an appeal in the Sameer
Ahmad Ganai v/s State of J and K (2008 (1) JKJ 542) case of sexual abuse of
a 6-year old girl, cited various cases from Rajasthan, UP and Bihar HCs to nail
the appellant under Sections 376/511 of the Ranbir Penal Code awarding a
punishment of rigorous imprisonment for two years for the said crime. If one
believed that the perpetrators of such crimes are only males, the A.Ramalingam v/s 2 accused case in
Madras HC (2012) would prove this assumption wrong. The principal (female) and
another teacher (female) of a school sexually abused a 4-year old girl child in
their premises. This particular case is also a seething example of the accused evading
arrest while trying to influence the investigations. The case is still being
heard and the Court has made a due note of the accused trying to interfere with
the investigations. Hence, it has directed the transfer of this case to the
Central Bureau of Investigation (referring to other similar transfers in the
past) for a free and fair investigation into these serious accusations.
The Bombay HC in Laxman Janu Kokare v/s The State of Maharashtra (2011) hearing a criminal case of CSA of 2004
of a then 9-year old girl child refused to be considerate in awarding
punishment to the offender on account of him having two of his own minor
children to look after. The Court noted in its judgment that showing leniency…
would mean that the father of two minor children can sexually molest the
minor children of other fathers. It would be scandalous to suggest that such
persons who are a menace to innocent minor children can be seen by the Court
with any amount of leniency. The offence is a case of aggravated rape. The sentence
under Section 376(2) (f), (and) the learned Judge has sentenced the accused to
10 years Rigorous Imprisonment (CR.APPEAL.269.2008.doc, pp. 8).
While the above are cases of individual victims,
there are many instances of acts of CSA carried out by person/s in authority,
of numerous hapless children who are under their (so-called) protection. They
could be by foreigners running shelter homes (Childline India
Foundation & Anr. v/s Alan John Waters & Others, 2011, SC) or in orphanages (Chhatravas Chandra Arya Vidya ... vs Govt.
of NCT Of Delhi & Anr, 2012) or a school principal sexually abusing
some of his students over a long period of time (M.Veersamy v/s State of Tamil Nadu, 2012). From these instances, it
can be concluded that most of the cases that are reported and come up for
hearing are those of assaults made by strangers or non-family members. This is
in no way implies that children are any safer in the precincts of their home,
which is a part of their immediately personal space. Virani (2000) quotes
numerous instances of various kinds of sexual abuse being inflicted upon
innocent children by people who are either related in blood, or are known to
them and their family. The cases are generally not reported in the police for
the fear of shame that it may bring to the family.
The above discussion illustrates that it is usually
the laws against rape and ‘unnatural intercourse’ that are used to convict
offenders of CSA. In the event that there are no physical markers of the crime,
then the court may resort to incriminating the offender on grounds of ‘outraging the modesty of a woman’ (Section
509, IPC). In cases where the child can barely talk, perpetrators of CSA may
easily manage to wriggle out of being lawfully punished because there is no
means of testifying of the act by, say, an infant.
For
the purpose of this paper, I draw from the before mentioned figures and
convictions to argue that there is a strong need for CSA to be officially
recognised as a wide-spread menace. This kind of acknowledgment has been made
(in State of Karantaka
v/s Krishnappa, 2000, Tara Dutt v/s State, Delhi HC, 2009, Rangesh v/s
State by Inspector of
Police, Madras HC, 2010) by various courts in the country, stating the need for
special laws to criminalise offences against children. A counter argument to
this would say that things have been going just fine for more than a century
with the IPC’s current provisions against rape, to be used in cases of CSA. No
doubt that there is no dearth of cases to cite in support of this line of
thought. Nevertheless, with the passage of time there have been numerous reasons
that, I argue, show that children’s need could be better catered to if there
were laws designed keeping in mind their psychological and physical status and
sensitivity. To assume that a child has the capacity to bear the burden of
proof of the heinous crime as well as the brunt of cross-examination done to
prove the offender not guilty would be a gross misunderstanding of the
sensitive nature of a child’s psyche.
In the next section I will discuss the guidelines
provided by the Supreme Court of India in Sakshi
v/s Union of India
and Others (AIR 2004 SC 3566) and argue for its legal embodiment in the
form of a special law for offences against children.
The
Law Commission of India
Reports, Sakshi
v/s Union of India
and Child Sexual Abuse
In
this section I will refer to developments in the Indian women’s movement and
the anti-rape campaign, while reflecting upon its impact on the conviction of
CSA offenders. There have been four major Law Commission (LC) reports which
addressed the law on rape, adding steam to the Indian women’s movement which
took off after the Mathura
rape case (Gangoli, 1996). Two of the Reports were recommendations on the IPC
in general (42nd LC Report, 1971 and 84th LC Report)
within which the provision of rape was discussed. The other two suggested
reforms related to exclusively to anti-rape laws (156th LC Report,
1997 and 172nd LC Report, 2000).
Agnes
(2002) chronicles the developments of the movement for reform of anti-rape laws
since the Mathura
rape case. She discusses in detail the debate that advanced in the 1990s over
creating an umbrella law for ‘sexual assault’, while doing away with ‘Sections 354 (violating modesty), 375
(rape), 376 (punishment for rape) and 377 (unnatural offences) of the Indian
Penal Code (IPC)’ (Agnes 2002:845). She mentions the ‘conflict of interests between two marginalised and vulnerable groups;
both situated across the conventional gender divide, within the scope of the
controversial Section 377’ (Agnes 2002:845). The site of this contest is
IPC’s Section 377, where one set of groups want it to be removed, for
legalising consensual homosexual activity, while another set has begun to see
the increase in its usage for conviction of offenders in cases of CSA. Agnes
pitches the conflict between demands of sexual minorities and concerns of child
right groups, arguing that in recent times, cases of sexual assault on children
have been dealt with Section 377 of the IPC, with its provision against
‘unnatural offences’ criminalising CSA (Agnes 2002:846). Hence, if the sexual
minorities’ demand was completely agreed with, then the child right groups
would lose significant grounds in convicting perpetrators of CSA on the basis
of the act being an ‘unnatural offence’.
In 1997, Sakshi, a Delhi-based NGO approached the Supreme
Court through a writ petition asking for directions concerning the definition
of rape in the IPC. The Supreme Court then directed the Law Commission of India
to respond to the issues raised in the petition (Agnes 2002:846). In August 1999, it directed the Law Commission to look
into these issues afresh. After detailed consultations with three women’s
organisations, the LC released its 172nd Report on the Review of Rape Laws in
2000. The LC recommended changing the focus from rape to `sexual assault', the
definition of which goes beyond penile penetration to include penetration by
any part of the body and objects.
Agnes also
covers the demands by various sections which led to the 172nd Law
Commission’s (2000) recommendation to make anti-rape laws gender-neutral (Agnes
2002:846). These recommendations were tersely countered by an open letter sent to
the law minister (2001), written after consultation between 30 groups across
the country, with the appeal that,
Unless the definitional and substantive aspects of the
rape law and associated set of laws which deal with sexual harassment,
molestation, unnatural offences, kidnapping and abduction of girls and women in
everyday and extraordinary contexts are amended, the proposed law to fast track
sexual violence cases will remain historically a hollow gesture5.
Agnes
concludes her overview of these developments by arguing that,
though the move to reform rape laws is in the right direction and is
long overdue, unless it is fine tuned to the specific needs of the concerned
segments, its aspirations will remain at the level of rhetoric at best or
result in misery and humiliation at worst (Agnes 2002:847)
The
foremost issue in naming CSA in Indian law, I argue, is that of the different
definitions across laws of who gets categorised as a ‘child’. There are various
laws applicable depending on specifics of each case of CSA, and the confusion
over ‘age of consent’ gets particularly intensified when the victim is in the
age group of 16-18 years. The Indian Penal Code defines the child as being up
to 12 years of age, whereas the Indian Traffic Prevention Act (1956) defines a
‘minor’ as a person who has completed the age of 16 years but not 18 years.
According to Section 376 of IPC, the girl’s age has to be less than 16,
wherein the assault is assumed as non-consensual leading to the offender being
proven guilty of rape. Section 82 & 83 of the IPC state that nothing
is an offence done by a child under 7 years, and further under 12 years, till
he has attained sufficient maturity of understanding the nature of the Act and
the consequences of his conduct on that occasion. This is an addition to the discrepancy in the consent
age for a married woman. While the consent age for pre-marital penile vaginal
sex is 16 years, the husband has license to engage in such an act with his
minor wife even if she is as young as 15 years. Though the minimum marriageable
age for women is 18, the marriage with an under-aged girl is not invalid, per
se.
Such
complications over age criterion for judging consent and convicting the
offender got compounded when in the Naz
Foundation v/s Government of NCT, the court ruled that…
The
provisions of Section 377 IPC will continue to govern non-consensual penile
non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean
everyone who is 18 years of age and above. A person below 18 would be presumed
not to be able to consent to a sexual act. This clarification will hold till,
of course, Parliament chooses to amend the law to effectuate the recommendation
of the Law Commission of India in its 172nd Report which we believe removes a
great deal of confusion (2009:40).
Until
the implementation of the said Report, this statement leads to further
confusion in cases of CSA because according to Section 375 of IPC the age of
consent for a woman is 16 years. If a man is able to prove consent by a woman
older than 16 years of age, he can be acquitted of charges of rape (i.e.
non-consensual sex). A very recent example of this was seen in Mohan vs State (G.N.C.T) Of Delhi (2010)
when the offender’s counsel at the Additional Session’s court tried to prove
(unsuccessfully) that the victim’s age was more than 16 and hence the act was
not to be considered as rape, but consensual sex carried out repeatedly over a
period of six-eight months, leading to pregnancy of the victim. To summarise
this argument, while Agnes’ concern of tailoring amendments to law keeping in
mind the demands of various groups thus affected can be observed in the
de-criminalisation of homosexuality in a judgment by Delhi High Court, the age of consent confusion promoted by it
still remains to be settled. The reforms in these laws have been few and far in
between the years impeding the quick and sound disbursal of justice to the
victims.
While sexual assault in some cases of
CSA may amount to rape, it does not dispend the necessity to treat the victim
as a child, rather than as an adult. In an attempt to sensitise the
justice-giving machinery, the SC in Sakshi
v/s Union of India
(2004) made many suggestions. Nevertheless, the state has not made any
particular attempts to enforce these guidelines. In Tara Dutt
v/s State (2009), the Delhi HC made a serious observation about the same…
Despite the Report of the Law Commission of India
lying with the Government of India for over nine years and the Supreme Court of
India in 2004 hoping that the Parliament would make appropriate changes in the
legislation, it is a matter of grave concern that nothing has been done till
date.
Since
the legislature seems to be lax about formally enacting fresh laws in
accordance with the 172nd LC Report of 2000, or even make certain
amendments as recommended by the said Report, it seems that the judiciary has
taken upon itself to make avail of every opportunity in laying down guidelines
for better handling of CSA cases. In Virender v/s The State of NCT
of Delhi (2009), the Delhi HC took cognizance of the SC’s
stand in Sakshi v/s Union of India (2004)
and laid down some guidelines in cases involving a child victim or child
witness. The Court directed the police (among other orders) to record the
statement at their residence, or any other place where the victim is free of
fear, in the presence of their parent/s or someone they trust. For medical
examination of the victim, the court mentioned that a parent or someone close
to the victim should be present during the examination. Courts have also been
directed, in this judgement, to create conducive atmosphere for carrying out of
the trial. Referring explicitly to Sakshi
v/s Union of India
(2004) the HC in this judgement noted that…
To minimise the trauma of a child victim or witness
the testimony may be recorded through video conferencing or by way of a close
circuit television. If this is not possible, a screen or some arrangement be
made so that the victims or the child witness do not have to undergo seeing the
body or face of the accused. The screen which should be used for the
examination of the child witness or a victim should be effective and installed
in such manner that the witness is visible to the trial judge to notice the
demeanour of the witness. Single visibility mirrors may be utilised which while
protecting the sensibilities of the child, shall ensure that the defendant's
right to cross examination is not impaired (Virender
v/s The State of NCT of Delhi 2009:55).
After
having dwelled into some of the provisions of the 172nd LC Report of
2000 and the SC’s laying down of guidelines for judicial proceedings in cases
of rape and CSA, I will now present my arguments in favour of a special law for
offences related to the child.
The
Offences Against Children (Prevention) Bill, 2011
In
Rangesh .. Accused / vs State By
Inspector Of Police (2010), the
Madras HC ended its judgment by noting…
It is to be reminded that as early as in the year
1974, the Government of India adopted a national policy for children, declaring
the nation's children as Supremely Important Assets. Therefore, it is the
responsibility and obligation of the State and Central Government to protect the
interest of the children. It is seen that the Law Ministry of the Government of
India has taken steps to introduce a bill to effectively deal with the sexual
offences against children in the Parliament. It is needless to state that a special law is mandatory for combatting
the menace of child sexual abuse (pp. 8, emphasis added).
The
Ministry of Women and Child Development, Government of India proposed a law to
be enacted, titled ‘The Offences Against
Children (Prevention) Bill’6. It was first floated in 2005 and is
being currently debated in the Indian parliament as The Protection of Children from Sexual Offences Bill (2011), reported
in The Times of India, New Delhi, April
30, 2012, (pg. 13).
From
the preceding discussion, we know that there are no separate laws to identify
various forms of CSA and some provisions of the laws against rape are used to
incriminate those proven guilty of CSA. The proposed Bill intends to classify
the various possibilities of CSA, without relying on the contested criteria of
what constitutes as penetration and rape. Section 5 of the Bill is on sexual
assault of a child.
A person is said
to commit “Sexual Assault of a Child” when that person, with or without the
consent of the child:
(1) Penetrates
the vagina, (which shall include the labia majora), the anus or urethra
of any child with:
a. any part of
the body of that person or of any other person; or
b. an object
manipulated by another person.
(2) manipulates
any part of the body of a child so as to cause penetration of the vagina (which
shall include the labia majora), the anus or the urethra of the person
by any part of the child’s body;
(3) commits the
act of fellatio, on or by a child;
(4) commits the
act of cunnilingus, on or by a child;
(5) commits the
act of analingus, on or by a child.
Explanation: Penetration to even the slightest extent
is sufficient to constitute penetration for the purpose of this section. It is
not necessary that the hymen is ruptured or semen is emitted to constitute sexual
assault.
Exception: Nothing that has been mentioned in the aforesaid
Section shall be an offence, where such penetration is carried for proper
hygienic and medical reasons.
Drawing
from this categorisation of acts which constitute CSA, I lend my support to
this Bill, arguing that children have special needs and a different state of
mind than the adults. Treating them on par with those whose cognitive and
physical conditions are far matured than theirs is a blatant violation of their
basic human rights. Using the laws against rape (Section 375, Section 376,
IPC), sodomy (Section 377, IPC) and ‘outraging
the modesty of a woman’ (Section 509, IPC) to incriminate offenders of CSA
is an unjust juxtaposition of the complexities of CSA with that of rape. The
law, and consequently society, must recognise this difference between a child
and adult and take appropriate measures to be sensitive to the needs of this
special set.
For
this purpose, I would also like to advance an argument for a separate
government body for child affairs in India. While we have a Ministry of
Youth Affairs for majors, children up till the age of 18 are dealt with under
the combined Ministry of Women and Child Development. On one level, this associates the child with
their caregiver, not recognising and paying special attention to other agencies
responsible in socialisation and safety of children. On another level, since
children constitute 40% of our population, I think it is necessary that a
special body looks into their affairs, drafting exclusive policies which are
child-sensitive, rather than making them tug along with their elderly female
caregiving associates.
Conclusion
In
this essay, I have provided an outline of the rights of child, as identified by
the UN and the prevalence of violence against them. In particular, I have
looked at the incidence and pervasiveness of the menace of CSA across the
country, among different economic strata. With the help of various court
judgments against perpetrators of CSA, I have shown that the system of
imparting justice relies on laws against rape and ‘unnatural sex’ to
criminalise the act of CSA and punish the victim accordingly. Here, I have
argued for naming CSA as an exclusive category of offence, with a special law
to deal with it, rather than clubbing it women’s issues. Doing this prevents
certain forms of CSA from being penalised, because they are not recognised by
the black-letter law. I have also argued for the separation of the Ministry of
Women and Child Development, to constitute a separate department to look into
the special affairs of children, in keeping with the spirit of the UN
Convention on the Rights of Child to which India is a signatory.
The
essay also attempted to trace the impact of laws set by our former colonial
rulers in the years way past India’s
Independence
(Das 1996). The Indian women’s movement in the anti-rape campaign can also be
seen as an exercise in enculturing law by sensitising the judiciary,
legislature and through them the society, that the laws so sacred to them were
conferred on us as subjects of the empire. As independent citizens and
intelligent agents of progress and change, it is now unto us to formulate laws
that suit our special conditions and provide maximum justice to those under its
rule.
2. WHO’s Report of the Consultation on Child Abuse
Prevention, 1999.
3. http://www.tulir.org/faq.htm
4.
http://www.tulir.org/images/pdf/Research%20Report1.pdf
5.
http://www.petitiononline.com/Moily/petition.html
6. http://www.ncpcr.gov.in/Bill/Prevention_of_Offences_against_the_Child.pdf
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