TAKING ON THE BIG BAD WOLF
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- Published 30.03.11
When it comes to sexual violence, children are among the most vulnerable members of the community. India is no exception. A survey conducted by the ministry of women and child development — Study on Child Abuse: India 2007 — reveals that 53 per cent of Indian children are subjected to sexual abuse at some time or another. Conducted across 13 Indian states, the study also found that in 50 per cent of child abuse cases, the offenders were either known to the child or were in a position of trust and responsibility with regard to the child.
To address this problem and curb the growing incidence of sexual abuse of children, the ministry of women and child development has mooted the Protection of Children from Sexual Offences Bill, 2011. The bill got the nod from the Cabinet earlier this month and once it is passed in Parliament, it could become an effective tool for bringing child abusers to book.
“We have taken care to make the bill child-friendly so as to ensure that victims of child abuse get justice under humane circumstances,” says an official from the ministry. The proposed law addresses sexual assault and sexual harassment of children and the use of children for pornographic purposes. It also lays down stringent punishment for offenders.
Most child rights activists are happy with the provisions of the bill. Says child rights expert Praveena Nair S., who works with the legal cell of Delhi-based non government organisation, HAQ: Centre for Child Rights, “The bill has enough legal teeth and brings to attention sexual offences committed against children by people in positions of trust and authority, including police officers, remand home wardens, hospital staff and school authorities. In fact, the bill categorises these crimes as those of ‘aggravated’ nature and stipulates strict punishment for them.”
At present child abusers are booked under the Indian Penal Code Sections 375, 376 and 377 that deal with rape and other criminal offences. “The procedure to seek justice is like any other criminal case. If enacted, the proposed law will definitely make the entire trial procedure much more child-friendly,” adds Praveena Nair S.
For example, to make the ordeal of the trial easier for the child, the bill proposes that a family member or a friend whom he or she trusts should be allowed to be present in the court. It also suggests the setting up of special courts to try these cases to ensure their speedy disposal. The courts have to complete the trial within a year from the date of cognisance of the offence.
In yet another gesture of sensitivity, the bill stipulates that though the police may be allowed to interview the victim, they must do so in civilian clothes for being quizzed by uniformed officers might scare and intimidate an already traumatised child.
Victims of child abuse also find redress under The Juvenile Justice (Care & Protection of Children) Act, 2000. However, experts say that the proposed law would be an improvement on the JJ Act. As Jay Sengupta, a criminal lawyer at the Calcutta High Court points out, “What makes the Prevention of Children against Sexual Offences Bill different from the JJ Act is that the former spells out everything related to child abuse in a detailed manner.”
Agrees Anuradha Sahasrabuddhe, member of the Juvenile Justice Board (JJB), and director of the Pune-based Dnyana Devi Childline, a 24x7 toll-free helpline for children in distress, “The proposed bill is focused on child sexual abuse, unlike the JJ Act that talks of sexual abuse as one of the offences committed against a child.”
A salient feature of the bill is that punishments have been made much more stringent. A person convicted of committing “aggravated sexual assault” can be imprisoned for seven years along with a fine. Moreover, an accused found guilty of “penetrative sexual assault” on a child will be slapped with a minimum of five years’ imprisonment and a fine of at least Rs 50,000.
The bill takes a strong line on child pornography as well. Chapter III makes the “use of children for pornographic purpose or possessing pornographic material involving children” a crime and proposes a penalty of three years’ imprisonment for it.
However, though the bill has been largely hailed as an important legal initiative, some activists feel that it could have been better. “It is a good law, but it does have some lacunae. For example, it is silent on the rehabilitation of victims. It also does not address the issue of victims or witnesses turning hostile,” says Sahasrabuddhe, whose term as a judge of the JJB ended earlier this year. She says that during her tenure she has seen many cases where victims and witnesses turn hostile under social pressure. “Victims are often forced to turn hostile when a family member is involved. The law needs to have a provision to take care of that,” she stresses.
Again, some hold that with the onus of proving his innocence being on the accused, the bill could be laying itself open to abuse. “It shifts the burden of proof on the offender for certain offences if the victim is below 16 years of age. This could lead to the law being misused. People may be falsely implicated in cases of child abuse. If the investigation process is inept and corrupt, this provision could be widely misused,” says Sengupta.
Others feel that the presumption of guilt in child abuse cases should be conditional. Calcutta High Court lawyer Protik Prokash Banerjee says, for example, that it should “only be applicable if medical examination proves a case of penetrative sexual assault. Pornographic material is, of course, something that must be found before the offence is alleged, so there the presumption may also be justified.”
The need of the hour, say experts, is to bring all the measures available under the law to deal with the growing problem of child abuse. As Delhi Commission for Protection of Child Rights Chairperson Amodh Kanth, points out, “We should link the proposed bill with the facilities available for the rehabilitation of children in JJ Act, 2000. There is a need to harmonise it with existing laws to make it more effective.”