AN OVERVIEW OF CHILD SEXUAL ABUSE IN INDIA
Author: Snigdha Panigrahi
ULC Bhubaneswar
ISSN: 2581-8465
Abstract
The World Health Organization defines child sexual abuse as “the involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to, or for which the child is not developmentally prepared r else that violate the laws or social taboos of society.”Our country is home to 19% of the world’s children. It is a real and serious problem in India which is veiled in secrecy as it is in other countries of the world. Such incidents at a small age hamper the psychological, physical, behavioral, and interpersonal well being of the child. People don’t report due to fear of being outcaste from society, fear of losing dignity, communication of gap between child and parents. There is a dearth of various monitoring authorities and a lack of effective implementation of the existing laws. The issues are wide, intricate and challenging to study. This article focuses on the child sexual abuse scenario in India, the laws and flaws in the system.
“Safety and securities don’t just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear”.-Nelson Mandela
India is a rich country in its culture and tradition. Kautilya was of the view that infants should be taken proper care and it is our duty and responsibility to see that they develop and prosper in a proper environment. But the children live a life of fear, neglect, abandoned, exploited and the road ahead for them is full of darkness. The ugly and uncalled exploitation of children is a regular phenomenon in our country. Despite the national and international measures, they continue to be exploited. There are various forms of exploitation out of which sexual abuse is the heinous one. Sexual exploitation includes child prostitution, child trafficking, child sex tourism, child pornography, pedophilia, drug peddling, etc.
India is becoming a hub for child prostitution. Immoral Traffic (Prevention) Act, 1956 defines prostitution as, “sexual exploitation or abuse of persons for commercial purposes”. The reasons for entering such a barbaric act is the socio-economic conditions prevailing in the families that the children come from. The tribal community of Bedia that resides along the Jaipur Highway outside Bharatpur takes pride in their family business which is “Prostitution”. Customarily, were entertainers in Rajasthan and Madhya Pradesh. It was their occupation for the women and girls to perform for feudal lords. With the changing times, Prostitution has become their family tradition. Adolescent girls have initiated into the family ‘tradition’, while their brothers become ‘agents’. According to Prof K. K. Mukherjee, former head of the department of social work, DU, “There are 91 families in Khakranagla. Of these, 75 are of Nat, Bedia, and Gujjar castes 46 of them engage in sex work.” Apart from the Bedia, there are other tribal communities such as the Kanjars, Nuts and Sanshis who takes up prostitution as their primary source of income.
Child trafficking across borders is a major international concern. UNICEF defines it as “A child has been trafficked if he or she has been moved within a country, or across borders, whether by force or not, with the purpose of exploiting the child”. The state of West Bengal and Rajasthan provides an easy route for the trafficking of children. According to 2017 Reuters report, 9,104 children were trafficked last year which is a 27 percent increase from the previous year. The reasons for considering the child as a commodity vary depending upon the purpose of trafficking. However, common reasons for buying and selling of a child are economic backwardness, illiteracy, and ignorance. This system operates in an organized manner where the agents are none other than friends, teachers, social workers, politicians, travel agents, etc. who promise good jobs and a better future.
The World Tourism Organization defines sex tourism as “trips organized from within the tourism sector, or from outside this sector but using its structures and networks, with the primary purpose of effecting a commercial sexual relationship by the tourist with residents at the destination”. The child sex tourists are individual who travel foreign countries to satisfy their sexual urge and engage in sexual activity with children by attracting them with gifts and incentives. Child sex tourism is prevalent in Goa, North Karnataka, Kerala, Tamil Nadu, Orissa, West Bengal, and Rajasthan. The agents involved in this crime are adult sex workers, rickshaw pullers, travel agencies, petty traders, etc. Another aspect also considered as a reason is the prevalence of a “devdasi system”. The girls are dedicated to the deities and are forced prostitutes who are there to entertain males in order to invoke the blessings of God.
Child pornography has emerged as a form of sexual abuse. Children of poor families and street children fall prey to the foreigners. The advancement in science and technology is affecting the children and they are exposed to inappropriate material on sex. Excessive use of phones acts as a major instrument of spreading and sending such material. Cheap CD’s and DVD’s containing such pictures are easily available in the market. The internet is flooded with such explicit content. The Indian Cyber Army director Kislay Chaudhary said, “The content and consumers of child pornography are growing at a sharp rate. There are no exact statistics but our findings show that search engines get over 1,16,000 queries every day related to child pornography,”
The United Nations Convention on the Rights of the Child, 1989 under Article 34 states, States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. In 2000, the General Assembly of the United Nations adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Article 3 of the Optional Protocol requires States Parties to criminalize “producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in Article 2.”. Section 292, 293, 294 of IPC, 1860, criminalizes publicity and circulation of obscene literature, doing obscene acts, reciting obscene songs, uttering obscene words in public. Sec .67 of the IT Act, 2000 prohibits publication and transmission of obscene material in electronic form. Sec. 67A deals with publication and transmission of sexually explicit material. Sec.67B provides for punishment for publishing or transmitting of material depicting children in sexual activity in electronic form. Section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe. The Protection of Child from Sexual Abuse Act, 2012 is a robust legal framework to combat offences against children such as sexual assault, sexual harassment, and pornography. This act was a need because of several reasons like the sections of IPC are not gender neutral whereas POCSO Act is gender neutral, reflection of different surveys conducted by the government, less efficacy of IT Law and increase in a number of child abuse cases according to the reports of NCRB. In 2018, the POCSO Act amended Section 42 to insert Section 376DA, 376DB of IPC, 1860. Sec. 376DA provides where a woman under 16years of age is raped by one or more person, then each of them shall be imprisoned for the remainder of that person’s natural life with fine and Section 376DB provides for imprisonment for life and fine or with death where the women are below 12 years of age. The death penalty which was inserted by the Criminal Law (Amendment), 2018 came to the center stage after the Jammu Kashmir’s Kathua and Uttar Pradesh’s Unao rape case leading to a massive outcry across the country. The POCSO Act may appear to be an ideal piece of legislation but there are several conceptual problems and cornerstones to the Act. For example- the act does not cover the consent given by persons under 18 years. This means that if a 17-year-old girl had sexual intercourse with a 19-year-old guy, then the 19-year-old the guy is booked under this Act. There is no clarity on the issue that when two minors have sexual relations who is the child in need of care and protection and who is the child in conflict with the law because technically both of them is a child in need of care and protection and child in conflict with the law. The Act remains silent on what documents are to be considered for proving the age of the child. Rule 12 of the Juvenile Justice Rules recognize both certificates, matriculation certificates but those who produce other documents like passport have to undergo a bone ossification test, giving the rough estimate of the child’s age. There is a large number of cases under the POCSO Act and the conviction rate is low which challenge that the nation is yet to surmount. Insufficient courts, judges are not subject experts due to lack of additional training by the State government or their interest in such laws, long drawn out legal process, existing legal infrastructure add to the series of challenges.
With the increasing reports of child abuse in the media, it barely inspires confidence in the criminal justice system of our country. There is a need for reassessment of working of the criminal justice system and take measures to tackle the problems in the implementation of the act. These cases often go unreported and unseen due to the callousness of the parents, teachers, etc., the social stigma attached to them, lack of interest from the investigating agencies, lack of awareness and poor implementation of the Act. It is our duty to take care of such offences against children as early as possible because they are vital for the development and progress of the society and nation.
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