According to The Convention on the Rights of the Child, Article 1 defines “the child” as “every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”.
In the Indian legal system, the child has been defined differently in the various laws pertaining to children.
The Indian Penal Code defines the child as being 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. Section 376 of IPC, which punishes the perpetrators of the crime of rape, defines the age of consent to be below 16 years of age, whereas Section 82 & 83 of the IPC states 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.
There are very few sections under the Indian Penal Code that deal with child sexual abuse. Some terrible home truths are:
- The laws for women are extended to include children.
- The major weakness of these laws is that only penile penetration is considered a grave sexual offence. The crime is considered lesser when it is oral, or through penetration with an object.
- Although section 377, dealing with unnatural offences, prescribes seven to ten years of imprisonment, such cases can be tried in a magistrates court, which can impose maximum punishment of three years.
- If the abuse is repeated several times it affects children more severely, however as yet there is no law for repeated offenses against the one child.
How do we apply section 354, on outraging the modesty of women, with respect to children?
How do we define modesty?
The gravity of the offence under section 509, dealing with obscene gestures, is less. Yet even in such cases, the child’s psyche may be affected as severely as in a rape.
With the aid of public interest lawyers across the country, Maharukh Adenwala, a senior lawyer practicing in child protection laws in the High Court, has initiated the National Campaign on Law for Child Sexual Abuse. This group will help draft a new law and circulate it among child rights groups. Once the legal work is complete, Maharukh will take the draft to a standing committee within the parliament to gain support for the new law. In addition to a book she has written on Child Sexual Abuse and Law, Maharukh is working with other lawyers on a white paper on child sexual abuse that will serve as the starting point of her work countrywide.
There also exists a differential definition for “boys and girls”. This is clearly seen in the Juvenile Justice Act, which defines a male minor as being below 16 years and a female minor as being below 18 years of age.
In the Indian context the age of an individual in order to be determined as a “child” is NOT uniformly defined. The consequence of this is that it offers various gaps in the legal procedure which is used by the guilty to escape punishment.
In cases of rape the burden of proof is on the victim of rape, however if the victim is a minor, the question of giving consent does not arise, as consent of a minor is not concerned as consent in the eyes of the law. In cases of CSA, at present the law that is referred to is section 376 of the IPC, where the age of consent is above 16 years.
There is an urgent need to clarify variety of sexual activities that are involved to constitute Child Sexual Abuse as also the age of the child.
Child abuse cases are handled under various sections of the Indian Penal Code, which are laws meant for adults.
One positive development in this regard has been the preparation of a draft by the Ministry of Women and Child Development. The Offences Against Children Bill, 2005, in circulation since January this year, is hailed by child rights activists as a landmark document; it is the first time that a law specifically aimed at protecting children's rights has been under debate.
"So far there was not a single law aimed at safeguarding children and protecting them against abuse. Offences against children were so far booked under laws under the IPC, which at times failed to result in prosecution and conviction simply for the reason that crimes involving children need to be handled with different tools," said Rajmangal Prasad, director, Pratidhi, another NGO active in the field of child rights. According to him, if the proposed draft does become law, it will go a long way to check child trafficking because specific sections in the draft deal with precisely this issue.
Furthermore, the definition of trafficking goes beyond trafficking for commercial sex. The proposed document has specific sections dealing with various offences against children, including sale/transfer, sexual assault, sexual/physical/emotional abuse, commercial sexual exploitation, child pornography, grooming for sexual purpose, incest, corporal punishment, bullying and economic exploitation. The document makes it clear that provisions in this law will be in addition to other legislation within the IPC and the Juvenile Justice Act because these laws do not separately cover persons who commit crimes against children and some other categories of children under various circumstances of abuse, exploitation and neglect.
Child rights activists are calling for the draft under consideration to be made into a law so that the suffering children have some hope. As the first paragraph of the document states, "although India has the second largest child population in the world, there is no separate legislation to deal with offences against children". It is high time it was enacted.