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Type of document: News
Topic: Evaluation
Geographic descriptors: India
Language: English
Source: www.thestatesman.net/page.news.php?clid=3&theme=&usrsess=1&id=95024
Date of publication: 2 November 2005
Long Abstract: CHILD ABUSE

By Tamali Sen Gupta

The UN Convention on the Rights of the Child which India ratified in 1992 requires member states to take affirmative action in protecting children from all forms of sexual abuse, neglect, exploitation, torture or any form of cruelty. Currently Indian laws are inadequate to identify and punish offences against children. Child abuse, especially sexual abuse, is a serious problem in India. It has devastating effects on the victim.

It is estimated that between 30 and 50 per cent of Indian children are sexually abused. India has approximately 300, 000 to 500,000 child prostitutes. There is no separate legislation to deal with child sexual abuse and the existing laws are inadequate. An average of 44,476 children are reported missing every year, out of which 11,008 children remain untraced. Most of these children end up in brothels. These children are taken to Mumbai, Delhi and the tourist beaches of Goa, Puri, Mahabalipuram and Kerala where pedophile tourism is on the rise.

Third largest crime

Trafficking in children, underage girls and young women is the third largest organised crime next only to illegal trade in drugs and arms. Pakistan, Malaysia, and Indonesia, some of the countries closely associated with piracy, drug dealing, and gun running, are also associated with human trafficking. India with a large number of poor is a source of women and children for trafficking.

In spite of this, only 65,602 persons were arrested during the five-year period of 1997-2001, out of which 87 per cent were females. Traffickers, transporters, brothel owners, clients and other such exploiters are largely untouched by the law; as prosecution is rare.

While there are strong laws relating to rape of female children, the rules of evidence and the inordinate delay in prosecution often leads to vital evidence going missing and witnesses turning hostile. There are no effective laws dealing with abuse of male children. This lacuna in the law has ensured that there is no disincentive to commit abuse of male children in India.

The Immoral Traffic (Prevention) Act, 1956 as amended in 1986 widened the scope of the law and enhanced penalties for offences involving children and minors. The act deals primarily with trafficking in women and children at brothels. It does not cover the trafficking in children at beaches, hotels and guest houses.

One of the biggest lacunae in the Act is that even if minor children are found in a brothel, they are passed off as the children of prostitutes and mostly have to be released without any proper procedure in place to determine if this is true.

Penal Code

The Indian Penal Code, 1860 has several provisions to deal with the use of criminal force against women and female children: Sections 354, 366, 366 A, 366 B, 372 (selling minors for prostitution), 373 (buying minor for the purpose of prostitution) and 375. Abuse of male children is covered under Sections 372 and 373. In addition Section 377 may be invoked. Punishment may extend to 10 years. There is no minimum punishment for procuring, buying or abusing a minor male child; a male child is not treated as a victim of rape, nor is there any presumption of lack of consent as is statutorily done in the case of a girl.

Section 375 provides inter alia that sexual intercourse with a female child under the age of 16 is rape regardless of whether it was with her consent or not. The only exclusion is in case the minor is the wife of the person accused of rape and is above 12 years of age. Enhanced punishment is provided for rape of a female child below 12 years. The Section does not apply to the rape of a male child by another male as Section 375 clarifies that only a woman can be raped. This has been upheld by the Supreme Court in the case of Sakshi 2004.

Section 377 covers several offences: non-consensual assault of a male child; non-consensual assault of a male adult under threat of death; sodomy of a female child; sodomy of an adult female; unnatural sexual relations with animals; and consensual homosexual relations.

Several gay rights activists have been campaigning for deletion of Section 377 from the IPC. While consensual homosexual relations are covered under Section 377, this is only a small part of the entire gamut of offences covered by the section and any hasty move for deletion of the section will leave many victims of crime without any legal recourse.

As Section 377 has no minimum punishment, the offenders are normally released on bail and then become absconders. By contrast, Section 375 gives a minimum punishment of 7 years. When a minimum punishment is prescribed, it is assumed that the crime of rape is a heinous one and, therefore, a minimum term of seven years is prescribed. There is no such presumption in Section 377 even if a minor male child is brutally sodomised although the police may at their own discretion add on other sections.

It is also imperative that child sexual abuse and non-consensual sodomy be separated from the wider issue of gay rights based on consensual relations between adults. All these are covered under Section 377 of the IPC. The Law Commission has been studying the matter for the last five years, but no new laws have been passed. Meanwhile, instances of trafficking in children continue.

Juveline justice

The only existing legislation on children, the Juvenile Justice Act 2000, deals primarily with children in conflict with the law and their rehabilitation. It does not provide adequately for children in need or identify offences against child victims. Enforcement of even the existing laws for protection of children are weak.

While the issues have been deliberated for the last 15 years, no new laws have been passed to protect children and punish those who abuse them. Child abuse is a threat to the social fabric of a nation and will have disastrous consequences for India unless a more humane approach to children is adopted by the state by defining child rights and enacting positive measures to protect child rights.

Almost all countries have legislation to protect children. The United Kingdom (Sexual Offences Act 2003 dealing extensively with the rights of children), the United States, Sri Lanka, Thailand and Malaysia, among other nations, have adopted a child rights approach. Under this approach, any transgression of a child’s rights, violence and other forms of physical and mental torture, is a punishable offence. The government should enact a separate child abuse law clearly defining the rights and remedies for children.

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