OFFENCE AGAINST CHILD AND JUVENILE JUSTICE

RESEARCH PAPER

CHILD ABUSE IN INDIA AND LEGAL SAFEGUARD

SUBMITTED BY: SUBMITTED TO:

Aayush Vajpai Mr. Shubham Shrivastava
Roll No.: 908 Faculty of Law
Semester VII ‘B’

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW, RANCHI
 INTRODUCTION

The Indian subcontinent, in fact, still has many groups, such as the Baiga, where actual
incestuous marriage is practiced, between fathers and daughters, between mothers and sons,
between siblings and even between grandparents and their grandchildren--thus disproving the
oft-repeated anthropological truism that "no known tribe has ever permitted incest" because if
it were allowed society would surely cease functioning. In many of these villages, the
children move at the age of 5 or 6 from the incestuous activities of the family bed to spend
the rest of their childhood in sex dormitories, where they are initiated by older youth and men
into intercourse with a succession of other children, none for longer than three days at a time,
under threat of gang rape. In India the most accurate scientific studies, based on lengthy
interviews, report that 3o percent of men and 40 percent of women remember having been
sexually molested during childhood-defining "molestation" as actual genital contact, not just
exposure. About half of these are directly incestuous, with the family members, the other half
usually being with others, but with the complicity of caretakers in at least 8o percent of the
cases.

These experiences of seduction are not just pieced together from fragmentary memories, but
are remembered in detail, are usually for an extended period of time and have been confirmed
by follow-up reliability studies in 83 percent of the cases, so they are unlikely to have been
fantasies. The seductions occurred at much earlier ages than had been previously assumed,
with 81 percent occurring before puberty and an astonishing 42 percent under age 7. As high
as these molestation rates seem, however, they represent only a portion of the true rates, not
only because those interviewed do not include populations that have been shown to have
extremely high rates, such as criminals, prostitutes, juveniles in shelters, psychotics, etc.--but
also because only conscious memories were counted, and the earliest seductions of children
are almost never remembered except during psychotherapy.

CHILD ABUSE

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. However, in
India, as in many other countries, there has been no understanding of the extent, magnitude
and trends of the problem. The growing complexities of life and the dramatic changes
brought about by socio-economic transitions in India have played a major role in increasing
the vulnerability of children to various and newer forms of abuse. Child abuse has serious

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physical and psycho-social consequences which adversely affect the health and overall well-
being of a child. According to WHO: ''Child abuse or maltreatment constitutes all forms of
physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment or
commercial or other exploitation, resulting in actual or potential harm to the child's health,
survival, development or dignity in the context of a relationship of responsibility, trust or
power.”1

CHILD ABUSE SCENARIO

Child abuse across the globe The UN Secretary General's Study on Violence against
Children3 has given the following overview of the situation of abuse and violence against
children across the globe. WHO estimates that almost 53,ooo child deaths in 2002 were due
to child homicide. In the Global School-Based Student Health Survey carried out in a wide
range of developing countries, between 20% and 65% of school going children reported
having been verbally or physically bullied in school in the previous 30 days. An estimated
15o million girls and 73 million boys under 18 have experienced forced sexual intercourse or
other forms of sexual violence involving physical contact. UNICEF estimates that in sub-
Saharan Africa, Egypt and Sudan, 3 million girls and women are subjected to FGM every
year.

NEED FOR A STUDY ON CHILD ABUSE

There is a large child population in India and a large percentage of this population is
vulnerable to abuse, exploitation and neglect. There is also inadequate information about the
extent of child abuse in the country. The only information available annually is the crime data
maintained by NCRB. A look at the data maintained by NCRB shows that:

1. There is a record of only those crimes which can be registered under the IPC or other
criminal Acts. Corporal punishment, use of children for creation of pornography,
exposure etc. are not reflected in NCRB data as they are not offences under the IPC.
1. 2.There is a gross under-reporting of crimes against children, which in itself is
indicative of the low priority accorded to children by parents, caregivers and the
police. Recently reported cases, in which the police did not even lodge First
Information Reports (FIR) of missing children is indicative of this.

ANALYSIS OF ASIA AND INDIA

1
World Health Organization (1999): Report of the Consultation on Child Abuse Prevention; Geneva,
http://www.who.int/vi0lence_injury_preventi0n/vi0lence/neglect/en/

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Child abuse in Asia While certain child abuse and neglect issues are common in almost all
countries at the global level such as physical abuse, sexual abuse, emotional and
psychological abuse, abandonment and, increasingly, problems of street children , there are
also many issues which are prevalent only in certain regions of the world. For instance, in
Asia where population density is high, the issues of child labour and child sexual exploitation
are also high. Political instability and other internal disturbances, including conditions of
insurgency in many countries in Asia are also creating major problems, with increasing
number of child soldiers, refugee children, trafficked children and children on the streets. 2
Child abuse in India Nineteen percent of the world's children live in India. According to the
20013 Census, some 440 million people in the country today are aged below eighteen years
and constitute 42 percent of India's total population i.e., four out of every ten persons. This is
an enormous number of children that the country has to take care of. While articulating its
vision of progress, development and equity, India has expressed its recognition of the fact
that when its children are educated, healthy, happy and have access to opportunities, they are
the country's greatest human resource.

LITERATURE REVIEW

Ketsela T and Kedebe D (1997), dealing with parental punishment, maintain that in Ethiopia,
21% of urban school children and 64% of rural school children reported bruises or swellings
on their bodies, resulting from parental punishment.

Kim DH et al, (2000), compared the rates of violence against primary school aged children in
China and the Republic of Korea, by using the Conflict Tactics Scales. But the questions
were directed at the children rather than their parents.

Katherine E. Cox (2000), examines development issues, that are raised in a legal analysis of
international human rights law, relating to child labour. In doing so, she highlighted some of
the weaknesses of the present legal approach to the problem. In order to demonstrate the
weaknesses of the system, India is used as an example of a developing country where some
of the development issues raised in the legal analysis, arise. The Second Part of Cox’s paper
defines the concept of child labour.

Hahm & Guterman, (2001), deal with parental physical abuse towards their children. It
reveals, in a recent study in the Republic of Korea, that parents were questioned about their
2
International Society for Prevention of Child Abuse and Neglect (2006): World Perspectives on Child Abuse,
Sixth Edition, http://www.ispcan.org.
3
Lewit EM. (1994). Reported child abuse and neglect. Future Child, 4(2):233-42.

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behaviour towards their children. Two thirds of the parents reported whipping their children
and 45% confirmed that they had hit, kicked or beaten them.

J. Goldman, M. K. Salus, D. Wolcott, and K. Y. Kennedy. (2oo3), have described that

physical abuse is characterized by physical injury, such as bruises and fractures that result
from punching, beating, kicking, biting, shaking, throwing, stabbing, choking, hitting with a
hand, stick, strap, or other object and burning. Although an injury, resulting from physical
abuse, is not accidental, the parent or caregiver may not have intended to hurt the child.

LIMITATIONS

1. This study, being the largest study of its kind, had little existing information base to
build upon. There was an absence of a universal definition of child abuse in the Indian
context and little understanding of the extent of the different forms of abuse
2. The study attempted to represent the situation of child abuse in the country including
its different forms, each of which is complex in itself. However, these complexities
could not be addressed because of limitations of design
3. While the design identified the sample size to be collected in different evidence
groups, during data collection the exact number of respondents within the specified
evidence group was difficult to identify.

CONSTITUTION OF INDIA

The Constitution of India4 recognizes the vulnerable position of children and their right to
protection. Following the doctrine of protective discrimination, it guarantees in Article 15
special attention to children through necessary and special laws and policies that safeguard
their rights. The right to equality, protection of life and personal liberty and the right against
exploitation are enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e) 39(f)
and reiterate India's commitment to the protection, safety, security and well-being of all its
people, including children.

 Article 14: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India; Article 15: The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them; Article 15 (3): Nothing in this article shall prevent the State from
making any special provision for women and children;

4
The Constitution of India, 1950.

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  Article 19(1) (a): All citizens shall have the right (a) to freedom of speech and
expression;
 Article 21: Protection of life and personal liberty-No person shall be deprived of his
life or personal liberty except according to procedure established by law;
 Article 21A: Free and compulsory education for all children of the age of 6 to 14
years;
 Article 23: Prohibition of traffic in human beings and forced labour-(1) Traffic in
human beings and beggars and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with
law.

NATIONAL LEGISLATIONS OF CHILD ABUSE

National legislations for protection of child rights in the country are:

a. Guardian and Wards Act, 18905

b. Factories Act ,19486
c. Hindu Adoption and Maintenance Act, 1956 7
d. Bombay Prevention of Begging Act, 19598
e. Orphanages and other Charitable Homes (Supervision and Control) Act, 19609
f. Bonded Labour System (Abolition) Act, 197610
g. Immoral Traffic Prevention Act, 198611

THE INDIAN PENAL CODE

a. Foeticide (Sections 315 and 316)12

b. Infanticide (Section 315)13
c. Abetment of Suicide: Abetment to commit suicide of minor (Section 305)14
d. Exposure and Abandonment: Crime against children by parents or others to expose
or to leave them with the intention of abandonment (Section 317)15
5
Guardian and Wards Act, 1890, No. 08, Acts of Parliament, 1890 (India).
6
Factories Act, 1948, No. 25, Acts of Parliament, 1948 (India).
7
Hindu Adoption and Maintenance Act , 1956, (India).
8
Bombay Prevention of Begging Act, 1959, (India).
9
Orphanages and other Charitable Homes (Supervision and Control) Act, 1960, (India).
10
Bonded Labour System (Abolition) Act, 1976 (India).
11
Immoral Traffic Prevention Act, 1986 (India).
12
Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), ss. 315, 316.
13
Id. at s. 315.
14
Id. at s. 305.
15
Id. at s. 317.

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 e. Kidnapping and Abduction:
 Kidnapping for extortion (Section 360)16
 Kidnapping from lawful guardianship (Section 361)17
 Kidnapping for ransom (Section 363 read with Section 384)18,
f. Selling of girls for prostitution (Section 372)19
g. Buying of girls for prostitution (Section 373)20
h. Rape (Section 376)21
i. Unnatural Sex (Section 377)22.

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994:
This is an Act for the regulation of the use of pre-natal diagnostic techniques for the purpose
of detecting genetic or metabolic disorders, chromosomal abnormalities or certain congenital
malformations or sex linked disorders, and for the prevention of misuse of such techniques
for the purpose of prenatal sex determination leading to female foeticide and for matters
connected therewith or incidental thereto.23

The Juvenile Justice (Care and Protection of Children) Act, 2000: The Juvenile Justice
(Care and Protection of Children) Act, 2ooo is a comprehensive legislation that provides for
proper care, protection and treatment of children in conflict with law and children in need of
care and protection by catering to their development needs, and by adopting a child friendly
approach in the adjudication and disposition of matters in the best interest of children and for
their ultimate rehabilitation through various institutions established under the Act. Neglect
Child abuse and neglect can be defined as the intentional, non-accidental injury, malnutrition
children by parents, caretaker, employers or others including those individuals presenting
Government/non-Government bodies which may lead to temporary or permanent impairment
of their physical, mental, psycho-social development, disability of death (Uma, 199o).
Emotional abuse Child emotional abuse can be referred to as a pattern of behavioural that
impairs a child emotional development or sense of self-worth. This may include constant
criticism, threats or rejection as well as withholding love, support, or guidance. Emotional

16
Id. at s. 360.
17
Id. at s. 361.
18
Id. at ss. 363, 384.
19
Id. at s. 372.
20
Id. at s. 373.
21
Id. at s. 376.
22
Id. at s. 377.
23
National Center for Health Statistics. Vital statistics of the United States. V0l. II. Mortality. Hyattsville, Md.
(1994).

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maltreatment is rarely manifested in physical signs. A few physical indicators of emotional
maltreatment are speech disorders, lag in physical development and failure-to-thrive
syndrome. Emotional - Verbal Abuse Aggressive or withdrawn behaviour. Shying away from
physical contact with parents or adults. Afraid to go home.

Physical abuse Unexplained or repeated injuries such as welts, bruises, or burns. Injuries that
are in the shape of an object (belt buckle, electric cord, etc.) Injuries not likely to happen
given the age or ability of the child. For example, broken bones in a child too young to walk
or climb. Disagreement between the child's and the parent's explanation of the injury.
Unreasonable explanation of the injury. obvious neglect of the child, (dirty, undernourished,
inappropriate clothes for the weather, lack of medical or dentalcare).

Amendments To Juvenile Justice Act Of 2000

Section 2(a)(a)24 Inclusion of definition of Adoption: "Adoption" means the process through
which the adopted child is permanently separated from his biological parents and becomes
the legitimate child of his adoptive parents with all the rights, privileges and responsibilities
that are attached to the relationship.

Section 2(d)(i)25 Child beggars to be included in the definition of children in need of care and
protection Section 10(1). In no case a juvenile in conflict with law shall be placed in a police
lockup or lodged in jail.

Section 14(2)26 Since the provision for enquiry to be completed within four months lacks
proper implementation, as inquiries are pending before the Boards for a long period of time,
it is proposed that the Chief Judicial Magistrate/Chief Metropolitan Magistrate shall review
the pendency of cases of the Board every six months, and shall direct the Board to increase
the frequency of its sittings or may cause constitution of additional Boards'.

Section 15(1)(g)27 The Juvenile Justice Board can make an order directing the juvenile to be
sent to a special home for a maximum period of three years only.

Section 16(1)28 No Juvenile in conflict with law can be put under imprisonment for any term
which may extend to imprisonment for life Section 4 & 29The State Governments to

24
Juvenile Justice Act, 2000, No. 56, Acts of Parliament, 2000 (India), s. 2(a)(a).
25
Id. at s. 2(d)(i).
26
Id. at s. 14(2).
27
Id. at s. 15(1)(g).
28
Id. at s. 16(1).

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constitute Juvenile Justice Board and Child Welfare Committee for each district within one
year of the Amendment Act coming in to force.

Section 33(3)29 The State Governments may review pending of cases before the Child
Welfare Committee in order to ensure speedy completion of enquiry process.

Section 34(3)30 All State Government/voluntary organisations running institutions for a

child/juvenile shall be registered under this Act within a period of six months from the date of
commencement of the Amendment Act, 2006.

Section 41(4)31 State Government shall recognize one or more of its institutions or voluntary
organizations in each district as specialized adoption agencies for the placement of orphans,
abandoned or surrendered children for adoption. Children's homes and the institutions run by
the State Government or voluntary organizations for children who are orphans, abandoned or
surrendered shall ensure that these children are declared free for adoption by the Child
Welfare Committee and all such cases shall be referred to the adoption agency in that district
for placement of such children in adoption in accordance with guidelines.

Section 62(A)32 Every State Government shall constitute a Child Protection Unit for the State
and, such units for every district, consisting of such officers and other employees as may be
appointed by that Government to take up matters relating to children /juveniles with a view to
ensure the implementation of this Act.

CONCLUSION

Although child abuse is a pervasive and complex problem with many causes, we should not
take a defeatist attitude toward its prevention. Despite the absence of strong evidence to guide
our preventive efforts, physicians can do many things to try to prevent abuse. At the very
least, showing increased concern for the parents or caregivers and increasing our attempts to
enhance their skills as parents or caregivers may help save our most vulnerable patients from
the nightmare of abuse and neglect. In sum, rape and sexual abuse of children in India is a
large problem without an easy solution. Though the issue persists worldwide, India’s culture
which traditionally keeps women below men, makes talk of private matters such as such
unallowable, and a corrupt and weak legal system when it comes to rape makes the problems
even larger. However, the situation could be improved by appropriately educating children
29
Id. at s. 33(3).
30
Id. at s. 34(3).
31
Id. at s. 41(4).
32
Id. at s. 62(A).

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and adults on sexual abuse, and educating police and strengthening laws. Further women’s
empowerment may lead to healthy changes as well.

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