December 30, 2012

2012: At The Movies

 Part I : Observations

In 2012, Bollywood stories did a wonderful job of bringing the backyards to the fore! It is a common complaint that movies here tend to be based in an urban setup. These do often strike a  chord with the audience in the hinterland, as they have an escapist and aspirational elements to them. Simultaneously, movies with story-lines based in the mofussil do not usually appeal to the urban audiences. This seems to be changing in the past decade and 2012 is an excellent example of strong stories based in a not-so-urban/ rural setup and being appreciated all the same for their content.

The chief example of this was Gangs of Wasseypur which rode into the hearts of viewers from Cannes to Chennai! 

The year really belonged to the Anurag Kashyap school of cinema. Movies from this camp are known for the realism in their stories, taut scripts, lack of routine drama, among other nuances. What mainly separates films from this school as that of the Vishal Bharadwaj school of cinema is: their treatment. Here’s a quick run through of the former’s outputs of this year which also perfectly fell into the category of strong story-lines based in non-urban setup with rustic and sharp dialogues to the boot

Paan Singh Tomar (MP)

Irrfan! (exhale!) Kudos to Tigmanshu Dhulia for sticking his neck out and making such films that give us an unadulterated feel of reality, free from the crutches of unnecessary dramatic inputs.

Shanghai (Bharat Nagar - somewhere in India!)

Underwhelming. That’s the only word I’ll use to describe this film. For a critique please check out

And for layers you didn’t realize, hop over to our Lady at

GOW 1-2

The lesser said, the better!

I saw the first film THRICE in a cinema hall! And each time I went back with newer nuances which I hadn’t noticed before. GOW-I is my favourite half from this nearly 5-hours long work of cinematic breadth and depth! For me, GOW-2 was quite linear and not very engaging, psychologically.  The dialogues in GOW-I are to-die-for! Despite being sexist at many points, they neatly represent the under-currents of a man-woman equation in different relationships!

Women of Wasseypur had made me want to write an exclusive piece on them …a venture I never got down to actually typing, sadly!

Aiyya (Pune)

While I do get that the director was attempting an absurd comedy, this one ventured into inane territory at many points in its running time!!! The only salvaging factors were the songs, Rani’s on-screen histrionics and Prithviraj’s brooding face and torso!

Love Shuv Tey Chicken Khurana (Lalton, Punjab)

SHORTEN THE FILM’S NAME, to begin with!!!!!!! A sweet film filled with moments of light-hearted humour without any innuendo. And while we are at shortening the title, the makers could also reduce the running time by 20 minutes!

It’s a film about love and relationships with food being the connecting link. The film also beautifully portrayed life in Punjab, including migration and separation while thankfully skipping the boisterous Punjab portrayed in the Chopra-Johar films!

The three films from AKFPL struck me being in dire need of being cut little short to maintain the pace and interest. Hence, I wish Mr. Kashyap would invest in better editors for the future films coming out of his stable!

Ishaqzaade also falls into this niche of bringing back-to-the-fore group. Comments on this film are made in the section after the next.

Regional flavours were also beautifully used in Barfi (Darjeeling/Calcutta) and Kahaani (Kolkata)

Part II: Brief Comments

This section contains brief comments on some of the movies                                                                                                                                                            released in 2012 and viewed by the blogger! (in no particular order.)


 The first film I saw in the new year. Disturbingly sexist it definitely was, but was spot-on in its representations of political equations and rivalry across India. This was a microscopic representation of the political battles our ‘representatives’ wage in the industry of ‘democracy’.

I went to watch this movie for Habib Faisal and found his traces in many elements of the film, primarily in its dialogues! Can’t wait for his next film!!!

PS: Arjun Kapoor can surely do rugged/uncouth, but can he do suave? Aurangzeb will show us what else can he do, apart from showing off his stretch marks on the big screen!

more on it by me:


A well-written story where people and cities merged as conspiratory characters to give us a taut thriller. By now reams have been written about how Vidya Balan is changing the force of the ideal-typical Hindi film heroine. I’ll refrain from treading that thought and put out a word for Sujoy Ghosh- in between the much appreciated Jhankaar Beats (2003) and Kahaani, HOW could you even conceive of peddling unbearable works like Home Delivery and Alladin?! wish the creativity would be more consistent!!!

Brownie points for making his love for Calcutta so palpable through this work!

Ek Main Aur Ek Tu (EMAET)

First ‘froth’ of the year. And that is increasingly becoming Dharma Productions’ trademark, barring the occasional Agneepath!

London Paris New York

A much better rom-com to accompany the frothy EMAET. Just that this one gave the characters more agency and let them go through phases to eventually reach where they do.

Our Lady of Dolce and Namak has a classic retort for this one! Read it here -


Again, will stay away from the morality-based debates that this film fuelled for long! SO much so, that the stunning DP went on to say that we just showed what is and "not the way perhaps should be"! (

Vicky Donor

My main aim of going for this film was to see if John Abraham’s actual intelligence shines through in his choice of script when turning a producer? Shine it certainly does!

Shoojit Sircar has excellently used his skills as an adman to create product that is a crisp comment on our life and times without being preachy or repetitive, ever! This was the only film that didn’t make me feel like it required better editing.

Ferrari ki Sawari

Films produced by Vidhu Vinod Chopra usually tend to strike the right balance between good content and emotional appeal. This venture lost out some steam by not striking that balance enough and tilting to the wrong side.

Shirin Farhad Ki Toh Nikal Padi

I was very excited to see Bela Segal’s first film as a director. While the story had a lot of scope to pack enough punch, Bela’s treatment made it a near dud! Even Farah Khan’s spirited debut could not salvage this ship of aged romance!

All the balances for a “good” film were struck just right! Now, if only Akshay Kumar wouldn’t indulge himself to THAT much screen-space, just because he’s the producer! (an issue that pricked me even while watching Cocktail (Saif, in this case)!)

 English Vinglish

The SWEETEST film of this year!!!!!!!!!!!!!!!!!!!!!!! Gauri, when’s your next film coming out?!


A badly made film with no script or story for a backbone. It was a copy of scenes from Bhandarkar’s previous films and some (rumoured) real-life incidences…all adapted to the ‘filmy’ setup. Read Raja Sen’s review for the accurate picture - HTTP://WWW.REDIFF.COM/MOVIES/REPORT/REVIEW-HEROINE-IS-UNBELIEVABLY-TRASHY/20120921.HTM

For a quicker idea of how bad the film is, check out


Saccharine OD. I won’t venture into a discussion on the inspired/ copied allegations leveled against this film. It could certainly have done with sharper editing and little less self-indulgence which lead to repetitiveness in narrative.


Saw it only because Yash Chopra passed away and I had never seen ANY of his films on the big screen!!! This film bears his trademark ALL through. The lyrics don’t sound like having spouted from Gulzar saa’b’s pen, the songs don’t sound like ARR was given a free hand or that he was being sincere. Won’t criticize this one, as YC’s soul may writhe in grave!

Hence, for a crisp take on this swan song, please have a quick look at


Aamir Khan kept us waiting for so long just to turn every character in this film into a spirit! Rumour has it that this film was drastically altered from its original track after Kahaani came out. Tch!

Kareena looks ethereal!


“Stylish Froth”. I live-tweeted while watching this film and one of the tweets during the middle of the film read- “SOTY: Rodent of the Year?!”

See The Vigil Idiot’s brilliant portrayal here -

And you simply CANNOT miss this : 

PS: Alia needs to lose a lot of her baby fat!

Special Mention: Amit Trivedi

The year also had some absolutely beautiful music courtesy Mr. Trivedi. He has truly arrived in Bollywood! His works of the year include Ishaqzaade, EMAET, English Vinglish, Aiyyaa A-N-D LSTCK! From foot-tapping (Auntyji), to folk (Sava Dollar), to catchy (English Vinglish), to sweet (Main Pareshaan, Farrukabaadi) ... he's given it ALL! need we say anymore??!!!

Best Intro Song

Female - Deepika Padukone (Cocktail)

Male - Siddharth Malhotra (SOTY)
Kukkad Kamaal da

FINALLY, a list i absolutely agree with:

(All images have been lifted from Google Images. Apologies for not citing each!)

May 20, 2012

Jawaharlal Nehru University, New Delhi, India

 This post is a personal opinion piece. To know about JNU, please visit

In the four decades since its inception, JNU has made a mark for itself as being the nursery of politics in India. The campus ‘life’ here booms only under that political mushroom, with not much else going for it in terms of the cultural experience. The two best features of JNU are:

a)      Members of faculty across various departments (or ‘Schools’ and ‘Centres’ in JNU parlance). The top rung everywhere is composed of celebrity academicians of their respective fields.
b)     This is a woman-friendly campus. To be able to provide such safe precincts bang in the middle of the rowdy and patriarchal terrain of north India is no mean feat!

Beyond that, there aren’t too many paeans to sing. Being one of the biggest campuses in India (almost 900 acres), it is neither well-curated (like the Benaras Hindu University) nor well-connected (like IIT-Bombay). There is no university bus service for the residents and the condition of public transport is utterly dismal. There is also no Wi-Fi connectivity in the hostels. No need to elucidate on how much discomfort it causes to students!

This campus scores really low on the cultural activity scale. The reason for it brings us to what the campus is most famous for – students’ political activity! This sole factor has a pervasive effect on each and every thing that anyone would want to do here. New students can’t even get the admission done without affiliates of various student parties swooping down on them for providing unsolicited ‘assistance’. Further on, whatever little theatre performances happen are mostly on political issues and films screened are on those themes too. Performing arts’ concerts are barely held, which is a real shame, considering the ample space on campus.

Political hyper-activity here plays out in the form of protest rallies, wall art via huge posters, demonstrations, ‘public meetings’ and, as en vogue, hunger strikes! The issues at hand are almost always those not concerning the students actually studying on campus at that point in time. They ‘fight’ for quotas and accuse the administration of being ‘casteist’, blithely forgetting that most of the students wouldn’t be here if the administration didn’t recognize their quotas. Most protest activities are also publicity stunts with media personnel being especially invited to cover them.

This campus thrives on labels. That, I argue, is their favourite pastime! JNU has made a name for itself as being a ‘Leftist/ Communist’ campus. I still don’t know the difference between them. Though, it is these only on the surface level. Scratch this surface and one will know that these labels (including others like Marxist, Statist, Anarchist) can be afforded to criticize every single thing under the sun, because, well, it’s dirt cheap here! This is possibly one of the most inexpensive campuses in the country, despite all the hue and cry about inflation and price rise in the economy! The reason so much of 'protest' can actually take place on the campus is because they do not have to pay through their nose for everyday survival.

Capitalism may well be ridiculed, but if these so-called politically conscious ‘students’ were to walk merely 1 km. out of the campus, the sting will be out of their agenda! All that money saved from negligible expenses on the campus is spent generously on cigarettes, alcohol and other substances, none of which are officially retailed on the campus. The prices of these products are often hiked for the luxury of being made available within the gates of JNU.

It’s an open secret that the political groupings serve as a ready dating pool for its members. Any change in affiliation to one group leads to instant loss of that network and alienation from those who were your ‘friends’! Dissent in opinion within a group is not very welcome and peer pressure is liberally used to manufacture consent, toeing the respective political line of belief.

JNU is also famous for being the best place to prepare for and crack the UPSC exams in India. Imagine that classic contrast where the people who viciously criticize the state hanker to get employed by the same state! Cases abound of professed ‘Communists' happily leaving behind their affiliations after getting selected through a highly competitive procedure for the administrative services. Clearly then, this is a phony bunch of opportunists who use the space for sharpening their event management skills and avail the university’s ample resources to eventually get a prestigious government job.

In conclusion, JNU is an example of a gated community swarmed by idealists who can afford to champion their cause only within the boundaries of this campus. Temporary occupants here go out of sync with the ways of the world, ignoring the reality of capitalism and market economy. Blessed are those souls who manage to spend most of their lives on this campus, funded by the state, which shelters them from the real struggles outside their gates.

May 12, 2012


I saw this film’s very first show on the day it released. So the opinions that follow are devoid of any influences from reviews by film critics in India. I did go on read many of the reviews and also got their anger and disappointment with sexism in the film. To me the realism and the possibility of this story playing out SOMEWHERE in north india was so striking, that i'd let the sexism allegation pass. That's how it is in north india. Patriarchy at it's best!

The film is a case of whole not being bigger than the sum of its parts. Hence, I’ll point out the parts that struck me right away!

* This is a Habib Faisal film. Period. He’s a man i started to appreciate deeply after the cinematic experience of Band Baaja Baraat (BBB). Then i saw 'Do Dooni Char' and completely fell in love with his creativity and skills of cinema. It's heartening to see how he stuck around YRF, doing (in my opinion, stupid) films for them. His patience finally paid off when he was allowed to show his real talent in BBB and now again in Ishaqzaade!

The film is VERY realistic. It is definitely possible in tier-3 towns in northern india. I’m sure such cases must be happening on micro-levels. The political equations mentioned are completely plausible. For the director to situate his take on the classic Romeo and Juliet in such a setup is commendable and has been well-executed.

* The cinematography deserves a special mention. They've captured the feel of such small-town locations brilliantly in the chases, showing the lanes, narrow by-lanes, garbage dumps, et al. The crew selection is awesome too. Ranjit Barot was the perfect choice for a background score that needed the element of thrill with subtlety. i'm glad YRF didn't opt for Salim-Suleiman this time. Amit Trivedi needs no endorsement! Though he is yet to supersede that bar which he set very high with his debut film – Dev.D!

* Dialogues of this film are very well-written and utterly enjoyable for their rusticity. makes me so proud of Faisal's skills! His insight of the hinterlands shines through some of the fast-paced and sarcastic retorts between the actors.

* The choice of supporting actors is spot on! I’ll stick to mentioning my views on only some of the lead actors here.

* Gauhar Khan is a woman i've had a serious girlcrush on, for a decade now! The 1st time i saw her was at the 'Miss India' pageant where she was among the top-5 contestants, and I developed a strong liking for her right away! i wish YRF had signed a 3-film contract with her too!;-)!. Considering this is her second film after Rocket-Singh (an older YRF venture)...i hope we see her in another of their films' soon, to complete her hat-trick!

* Parineeti Chopra has luscious hair and good acting skills conveying angst and hatred. Though, her inexperience shows in certain crying scenes.

* Arjun Kapoor… the debutante… does uncouth very well. i'm waiting to see whether he can do a classy act well too! By the way, as the adage magnifies everything...his stretch-marks on forearms and lower waist are clearly visible in some scenes! (background - he was the 'overweight teenager' who Salman Khan talked into getting fit!)

To conclude, this film made for a worthy watch, despite being ridden with clichés. The entire experience didn’t stun me out of wits, which is what I was hoping for, but it wasn’t that bad either!

Stateless Orphans

Stateless Orphans? : Citizenship rights of children born through Artificial Reproductive Techniques

Abstract: Every state has its own criteria for granting citizenship and recognising the rights that ensue. In case of children born on a soil different from that of their biological parents’, the conflict of which nationality are they to be governed by arises. Through selected case studies of surrogate children in India, this essay assesses some areas of concerns regarding citizenship, surrogacy, legal adoption and freedom of movement.


The essay begins with a brief introduction to the concept of citizenship and the contesting claims surrounding it. This is followed by a short discussion on the types of surrogacy and children born through Artificial Reproductive Techniques (ART). The claims of citizenship evoke deep concerns, and these get particularly enhanced in cases of children born through surrogate mothers. I attempt to outline this contention by citing two cases of surrogate children whose movement right after their birth was struck upon by these complex norms of citizenship, right after their birth. The differing criterion for granting citizenship and contesting claims of parentage are played out on the young child, I argue, in gross violation of his/her basic human right. In this essay, I will try to bring out the dilemmas that a new-born is subjected to when his/her being acts as a site of intersection of contrary norms of parentage and citizenship between countries.
The concept of ‘citizenship’ entails numerous interpretations and affiliations, leading it to be one of the most contested issues in modern political, social and cultural life. In lay understanding, citizens are those members of a nation-state who have legal and political rights. These rights are granted on the basis of numerous qualifying criteria and instantly differentiate them from others who may be residing in the same territory but don’t have these rights. On deliberation, it appears that every geographical entity (state) has its own criteria for granting recognition to residents and these are, without exception, fraught with contesting claims. According to Brubaker (2004), ‘The nation-state remains a decisive locus of power in world affairs; it is the only major locus of power with the public sphere and institutional forms, however imperfect, that permit some degree of meaningful and effective civic participation’ (Brubaker 2004:124). This argument lays emphasis on the decisive role of state in granting (or withdrawing) rights of citizenship and the benefits that follow thus.
Surrogacy is the result of developments in medical science which have now enabled couples who cannot have their biological offspring through natural processes, to opt for scientific assistance in achieving their ends. ‘The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that is, a person appointed to act in the place of another1. If a woman is not able to conceive through natural ways then methods like artificial insemination or in-vitro fertilisation (ART) may be used. In many cases, women may be medically unfit to bear a child. It is in cases like these that surrogacy appears as an option. Though, there have also been numerous cases of gay couples opting for surrogacy to have off-springs that are genetically linked to them by at least one parent.
In case of genetic surrogacy, the sperm belongs to a male and the egg is of the woman who bears the pregnancy for its entire duration. Gestational surrogacy involves the surrogate carrying the embryo with genetic material (sperm and egg) of the commissioning couple, or either sperm/egg of another (usually anonymous) donor. ‘The first gestational surrogacy procedure was reported in 1985 (Usain et al., 1985)’ (Palattiyil et al., 2010:689).  In the past two decades, Rai (2011) argues that India has become a hot destination not only for IT services but also health and medical tourism, owing to the low costs involved. Anand, in Gujarat has seen a mushrooming of IVF clinics turning it into a ‘centre of commercial surrogacy’ (Rai 2011:151). 
Surrogate motherhood involves numerous legal, ethical, medical and health concerns, both for the surrogate as well as the child thus born. The next section gives a brief glimpse of the contractual norms applicable to such procedures. Surrogacy laws of some other countries are also mentioned. Owing to the availability of considerable literature, it is deeply tempting to launch into a long argument about rights of the surrogate mother, but that issue is not the core concern of this essay. Hence, there is a discussion of selected cases from India, which brought to fore various issues regarding claims of parenthood and granting the rights of citizenship to children born through surrogate mothers.

Conflicting norms of surrogacy and citizenship
            In this section, I will discuss two cases, from not so far back in time, of surrogate children who bore the brunt of uncertainty over their citizenship status, until the Supreme Court (SC) of India passed a judgment making way for their smooth passage out of their country of birth to their country of descent. With this discussion, I hope to highlight the differences in various laws of granting citizenship, which in turn affect the official status of new-borns, for no fault of theirs.
            The first case is of Manji Yamada who was born to an Indian surrogate mother in Anand, Gujarat in mid-2008. The biological parents of this child were both Japanese citizens and had commissioned a surrogate mother via one of the many infertility clinics in Anand. A month before the birth of this child, the parents divorced and the biological mother refused to claim any parentage rights over the child. The surrogate mother also did not want to claim the child as her own. There were numerous legal snares in this case which complicated the travel of Baby Manji to her parents’ country and I will mention them in brief. A passport happens to be the most important document required for legally moving across international borders. In this case, Baby Manji could not be issued an Indian passport as her parents were not Indians. Also, in India, an infant’s passport is linked to that of their mother, which was not possible in this case. The child was issued a birth certificate by the Anand municipality, but it wasn’t the valid document permitting international travel. The Japanese embassy refused to issue a passport to Baby Manji as she was born in India. Hence, she needed an Indian passport and a no-objection-certificate (NOC) to travel to Japan. All of these reasons were a key factor in deciding the status of Baby Manji’s citizenship. For nearly three months, she was, ‘stateless’ and ‘orphan’2.
            An option available in such a case is that the parent/s (foreign citizen/s) legally adopts the child enabling their travel to the parents’ country. Adoption laws in India do not permit single male to adopt a child. Hence, Baby Manji could not be adopted by her biological father. In the midst of this legal mayhem, Baby Manji’s paternal grandmother came to India and claimed the parentage of this child on grounds of her being a biological kin. Another complication arose when an NGO in Jaipur raised objections about Baby Manji’s grandmother laying claim over the child as there were no laws for surrogacy in India, and also against the child being allowed travel with her biological father, arguing that this would be a case of human trafficking! The case went up to the SC which ruled in favour of the Yamadas and directed the regional passport office to issue a certificate of identity (issued to people who are stateless or cannot get a passport from their own country) which is valid for a year and allowed her to travel only to Japan. The Japanese embassy also granted visa to Baby Manji on humanitarian grounds, allowing her transit to Japan with her paternal grandmother.
            The nuances of this case threw open for consideration the wide gaps in legal provisions for recognising and regulating advances in medical science (surrogacy, in this case). In keeping with our bigger theme of citizenship, Baby Manji’s case highlighted the plight of children entangled in a web of conflicting norms of recognising them as citizens, across countries. This resulted in her having to bear the miserable tag of ‘stateless orphan’, even if for a short while. To be labelled thus was an affront on the basic dignity and human right of a new-born child, for no fault of theirs. The complex conditions regulating movement across borders are almost entirely dependent on the citizenship status of individuals. Baby Manji’s plight was furthered by the fact that she was an ‘alien’ in the country where her birth was ‘legal’. What a sad paradox would it be, to have been recognised as being born on a land while simultaneously being stateless and alien on the same land!
            The second case discussed here is also from 2008 of a German heterosexual couple, also recruiting a surrogate mother in Anand, Gujarat. The wife, Susan Lohle was unable to reproduce egg/s for having a biological child through surrogacy with her husband, Jan Balaz. They got an anonymous donor’s ova which was fertilised with the sperm of Balaz and successfully implanted in the womb of the surrogate mother. After the birth of twins in mid-2008, the municipality issued a birth certificate to these twins stating the father’s name as Jan Balaz and the mother’s name as that of the surrogate. With this document, an application for issuing of Indian passports for the twins was made. While the passports were issued, they were later recalled by the passport office. The reason for this is stated in Jan Balaz v/s Union of India, stating that,
surrogate mother cannot be treated as mother of the babies, and children born out of surrogacy, though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also stated that parents of the children are not Indian citizens and therefore, children are also not Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955. Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6 (2) (a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per direction of the Government of India, Ministry of External Affairs, Passport Authority can issue identity certificate, showing name of surrogate mother, which does not entail citizenship to the children but would enable him to take his children out of India. Further, it was also pointed out that the Central Government is yet to legalize surrogacy and hence, children born out of surrogacy, though in India, cannot be treated as Indian citizens (ibid.).
This argument clearly points to the principle of jus sanguinis followed by the Indian state in recognising individuals as citizens of the country and granting them citizenship rights (Roy, 2010). The counsel for the couple countered this argument by citing Section 3(1)(c)(ii) of the Indian Citizenship Act, 1955. The argument was based on the ground that the ova belonged to an anonymous Indian donor and the surrogate mother was an Indian citizen, hence the twin babies have the right to be granted citizenship on the basis of the descent principle.
This case brought to fore an insight on the varied norms for or against surrogacy prevalent in some other countries of the world. The Balaz couple’s case was complicated by the fact that they held German passports but were working in the UK and were desirous of settling down in UK. The UK consulate was not willing to grant visa to the couple’s twin born through surrogacy, unless they had Indian passport since they were born in India. Eventually the couple wished to apply for German citizenship for their twins. The sorting of this knotted web of citizenship and travel laws of various countries is discussed in the next section.

Global scenario
The Jan Balaz v/s Union of India (2009) case provided an insight into the range of laws regarding citizenship status of children born through surrogacy. Most states in the USA have clear laws regarding surrogacy contracts and providing legal recognition and citizenship status to surrogate children. Ukraine’s law formally recognises surrogacy, has norms regarding surrogacy contracts and fully support the reproductive rights of the individuals.
Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself (ibid.).
Japan does not recognise surrogacy as a means of birth and hence children thus born are not given citizenship rights. The Civil Code of Japan is usually interpreted to give legal status of motherhood to the woman who physically gives birth to a child. There is no provision in the Code to recognize the genetic mother as the legal mother.
Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal (ibid.).
Storrow (2011) notes that,
Turkey prohibits using donor gametes in assisted reproduction (Jones et al., 2010). Recently it revised its regulations to assert criminal law jurisdiction over Turkish citizens who travel abroad to acquire donor gametes. The law also criminalizes brokers, physicians and donors who assist Turkish reproductive travellers. This extraterritorial assertion of jurisdiction is an attempt to prevent a Turkish child’s ancestry from becoming obscured through gamete donation abroad (Gu¨rtin-Broadbent, 2010; Urman and Yakin, 2010) (2011:541).

The laws in United Kingdom allow for only altruistic surrogacy and commercial surrogacy is not recognised. In the case of twins born through surrogacy to the Balaz couple, the Gujarat High Court directed the passport office to return the passports of the twin children. The couple went on to legally adopt the twins, as they wanted to apply for German citizenship of these children. It would not have been possible otherwise because, as stated earlier, Germany does not recognise children born through surrogacy. The country follows a principle of jus sanguinis, wherein children can acquire German citizenship only if a parent is a German citizen, irrespective of their place of birth. Non-recognition of children born through surrogacy implied that despite being biologically linked to one of the parents, the twins’ could not granted German citizenship on those grounds.

Argument for avoiding the eventuality of ‘stateless orphans’
In the preceding sections, I outlined some of the laws governing citizenship and the way their applicability gets tested in the unfamiliar domain of surrogate children and their rights. Despite this, I tried to discuss the ways in which existent laws are interpreted to create conditions in favour of the recognising the citizenship status of children born through surrogacy. In this section, I will try and argue for special rights of recognition, at least for an interim period, for such children. The cases discussed above have shown how these innocent children get caught in the mesh of complex laws about citizenship of the nation of their birth and that of their biological parents. Hence, I attempt to make a case for constituting temporary special citizenship rights for surrogate children.
Article 7 of the UN Convention on Rights of Child (1989) states that,
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

The Convention’s concern for children being left ‘stateless’ is apparent from the second clause cited above. The case of Baby Manji and Jan Balaz’ twins proved that children stand the risk of being ‘stateless’ when their country of birth is different from that of their parents’ nationality. I would like to stretch the UN’s endeavour to include special rights of surrogate children, for they stand the higher risk of being stateless and even orphans, due to differing norms of citizenship across countries of the world. I argue that there should be provisions for granting conditional citizenship to such children, for a limited duration, ensuring their smooth travel to their parents’ choice of country. I admit that this stand will invite an outright disapproval from nations that do not recognise surrogacy as a lawful means of reproduction. Nevertheless, making a case for the basic human rights of infants, I’d base my argument on Benhabib’s line of cosmopolitanism.
Benhabib (2004) argues that…
a cosmopolitan theory of justice cannot be restricted to schemes of just distribution on a global scale, but must also incorporate a vision of just membership. Such just membership entails: recognizing the moral claim of refugees and asylees to first admittance; a regime of porous borders for immigrants; an injunction against denationalization and the loss of citizenship rights; and the vindication of the right of every human being “to have rights,” that is, to be a legal person, entitled to certain inalienable rights, regardless of the status of their political membership. The status of alienage ought not to denude one of fundamental rights (Benhabib 2004:17, emphasis in original).

Children born through surrogacy to formal nationals are, in a sense, aliens. In the spirit of the UN CRC, such children do not deserve the discrimination of being stateless/orphans, for no fault of their own. It should be the duty of the state to provide protection and also, I argue, temporary citizenship status to such children, to ensure their smooth transit into the country of their parents’ birth/residence. Any action on the contrary is not only a gross violation of the basic human right to life and dignity of the new born, but also betrays a non-compliance to the essence of the rights of child as articulated by the UN.
The government of India intends to deal with the numerous legal issues of citizenship due to differing norms of other countries. For this purpose, it has incorporated a clause in the draft of the ART (Regulation) Bill and Rules, 2008, which stipulates that foreign couples should get a no-objection-certificate for surrogacy from their respective embassy. This Bill is yet to be passed, and until then, we can only hope that there are no new cases akin to that of Jan Balaz’ twins, or worse, Baby Manji’s, leading to innocent new-born babies being labeled as ‘stateless orphans’
To conclude, the citizenship rights of children born through surrogacy provide an excellent example of identity being embedded in nationhood and formal recognition of that status by states. As much as the argument for cosmopolitanism may rage on, the true test of citizenship is observed ‘when disputes arise over nationality’ (Arnold 2004:32). Surrogate children are a case of ‘in-between’ nationalities, and this status of theirs subjects them to quite tedious legal battles over eventually being granted citizenship rights of any one nation-state.


1.      Law Commission of India Report no. 228 (2009:9).


Alcantara, M.d., 2010. Surrogacy in Japan: Legal Implications for Parentage and Citizenship,
Family Court Review, 48:3, 417–430.

Arnold, K. R.,2004. Homelessness, citizenship, and identity : the uncanniness of late modernity. Albany: State University of New York Press.

Benhabib, S., 2004. The Rights of Others. New York: Cambridge University Press.

Brubaker, R. (2004) “In the name of the nation: reflections on nationalism and patriotism”, Citizenship Studies, 8:2, pp. 115-127.

Baby Manji Yamuda vs. UOI AIR 2009 SC 84

Citizenship Act of India, 1955 (Available at

Jan Balaz v/s Union of India (Available at

Law Commission of India Report 228, 2009, (Available at

Points, K., 2009. Commercial surrogacy and fertility tourism in India: the case of Baby Manji. (

Palattiyil, G. et al. 2010. Globalization and cross-border reproductive services: Ethical implications of surrogacy in India for social work. International Social Work 53(5) 686–700.

Rai, K., 2011. Law for Surrogacy: Need of the 21st Century, International Journal of Research in Comemrce, Economics and Management, 1 (6), 151-154.

Roy, A., 2010. Mapping Citizenship in India, Delhi: Oxford University Press.

Semba, Y. et al., 2010. Surrogacy: Donor Conception Regulation in Japan, Bioethics, 24 (7), 348–357.
Storrow, R. F., 2011. Assisted reproduction on treacherous terrain: the legal hazards of cross-border reproductive travel, Reproductive BioMedicine Online, 23, 538– 545.

Teman, E., 2003, The Medicalization of "Nature" in the "Artificial Body": Surrogate Motherhood in Israel, Medical Anthropology Quarterly. 17 (1), 78-98.

UN Convention on the Rights of Child, 1989  (Available at

Child Sexual Abuse

Naming Child Sexual Abuse in Indian Law

           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 power2. 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 AbuseThe 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.


           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.

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