Gaps In Legislation Of Child Abuse And Neglect
This Blog is written by Khushi Gupta from Vivekananda Institute of Professional Studies, New Delhi. Edited by Oshin Suryawanshi.
India is home to nearly 19 percent of the world’s children, making it the world’s most populous country in terms of children. In this ever-changing culture, it outlines the country’s responsibility in creating a safe refuge for children. As a result, the country grants its children a slew of basic and legal rights, while also emphasizing the importance of their protection, care, and development in its overall plans, schemes, and goals. Despite every positive step made on behalf of children through various legislation and revisions, their situation has remained relatively unchanged throughout time. Even after decades of independence, the fact that children are the most vulnerable members of society has not changed. Starting with the first 5-Year Plan, succeeding administrations introduced a slew of policy reforms and regulations aimed at improving children’s living situations and raising their living standards. Despite this, children in India are still subjected to exploitation, abuse, forced labor, and abandonment.
Child abuse is defined as any act, failure, or carelessness on the part of anyone, adult or child, that poses a serious threat to a child’s life and development and resulting in long-term physical and psycho-social effects on his or her health and well-being. It can refer to real or prospective harm to a child’s life, dignity, development, and socialization as a result of sexual, physical, emotional, or psychological abuse or exploitation. It is a genuine and prevalent problem that usually manifests itself through familiar avenues such as parents, relatives, and caregivers.
When we talk about our childhood, our minds are flooded with memories that bring a smile to our faces. We are lucky to be able to remember our childhood with such fondness, but not every child is that fortunate. There are children who are vulnerable to exploitation rather than education, neglect rather than affection, and to abuse rather than protection. According to a World Health Organization estimate, about 1 billion children aged 2 to 17 years suffered physical, sexual, or emotional violence or neglect in 2019. Furthermore, Harleen Walia, Deputy Director of Childline India, confirmed that 3.07 lakh calls were received by the CHILDLINE 1098 helpline in the first week of lockdown, 30 percent of which were complaints about child labor and 5 percent of which were complaints about homelessness, which is a clear indicator of child neglect. These figures illustrate the crimes committed against innocent souls in this pandemic crisis as a result of a lack of regulation and public awareness.
Given the plight of children, the Government of India has taken several initiatives, including the Juvenile Justice Care and Protection Act of 2000, which was amended in 2006, the Prohibition of Child Marriage Act of 2006, the establishment of the National Commission for the Protection of Child Rights in 2005, the implementation of the National Plan of Action for Children (2005), and the Child Labour (Prohibition and Regulation) Act of 2006. Furthermore, legislation such as the Right to Education Bill (2009) and the Prevention of Children from Sexual Offenses Act 2012 were passed to promote, protect, and defend the rights of children in our country. In addition, the Indian Penal Code stresses child neglect under Section 317, which states that if a parent or guardian abandons a kid, he or she commits an infraction and faces up to seven years in jail, a fine, or both. Section 125 of the Family Code makes child support a legal requirement. Despite the existence of several protections and regulations, children are nevertheless unable to live a life free of abuse and neglect due to remaining loopholes.
CURRENT LEGAL FRAMEWORK IN
This law deals with two categories of children- those who are in conflict with the law and those who need care and protection. The major elements include the use of new terminology to identify minors, such as the modification of the term “juvenile” to “child” or “child in dispute with the law.” clarifying the powers of the Juvenile Justice Board and the Child Welfare Committee, including special provisions for heinous crimes committed by children aged 16 to 18, adoption provisions, and the inclusion of new offenses committed against children such as the sale and procurement of children, corporal punishment in childcare institutions, the use of children in militant groups, and offenses against disabled children and kidnapping and abduction of children, along with mandatory registration of childcare institutions.
This law has been helpful in dealing with child offenders and providing safety for children in a number of situations. Certain clauses, however, have drawn criticism for treating adolescents as adults in severe criminal instances. The clauses blur the line between minors between the ages of 16 and 18, whether he or she is a kid or an adult, in this 2015 modification, which was primarily viewed as a populist gesture in response to public outrage after the Nirbhaya rape case in 2012. The legitimacy of a life sentence (up to 20 years) punishment has also been questioned because no clear proof of a beneficial outcome in the child has been shown. As a result, there will be a special issue determining the seriousness of the offense, resulting in subjectivity and mistake in judgment. Furthermore, the Children’s Courts, which were created to mediate incidents of abuse against children, have now changed their attention to trying crimes committed by children, leaving victims with very little recourse.
Under the Ministry of Women and Child Development, in 2007, the National Commissions for the Protection of Child Rights were established to ensure that all policies and mandates are consistent with the perspective of child rights set out in the Constitution of India and the UN Convention on Child Rights. The National Commission’s functions and powers include examining and reviewing legal procedures, preparing periodic reports on the operation of legal safeguards, investigating abuse cases and initiating legal proceedings, raising awareness of child rights, conducting research in child rights, inspecting institutions for juvenile offenders, and investigating complaints of violations of the law.
The Commissions’ jurisdiction is organized in a federal system, with a National Commission in the center and State Commissions in each state. However, with such a structure and delegation of administration, disagreements between the two frequently result in errors of judgment. Arguments between the State and National Commission in a specific case of child trafficking in West Bengal’s Jalpaiguri area drew a lot of criticism. This issue frequently detracts from the commissions’ principal goal, which is to defend the rights of children. Furthermore, the commissions have been chastised for their slowness and ineffectiveness, despite the fact that child labor, human trafficking, and child maltreatment are still prevalent in the country.
This act is pioneer legislation that establishes specific offenses to protect children from sexual assault, sexual harassment, and pornography and provides for the establishment of special courts for the trial of such offenses, ensuring the child’s protection at all stages of the legal process and providing speedy trial and punishment to offenders. Section 19 of the Act requires the victim or his or her family to disclose any abuse that is likely to occur or has already occurred. Section 21 states that failing to disclose abuse will result in punishment, with exceptions for the victim. It explains in detail the roles of healthcare experts, child protection structures, courts, and non-governmental organizations (NGOs) in dealing with the victim, investigating the case, legal procedures, and punishment, as well as after-care for the child.
This statute does not provide a clear difference between instances in which children consent. According to its terms, any sexual interaction conducted by a juvenile with an adult, even if consented to, will be filed under this act, resulting in false arbitration. Many cases have demonstrated difficulties in establishing a kid’s age; any document other than those referred to by the act will not retain validity, resulting in discrepancy and, in some cases, segregation of the child victims. While reporting and investigating the case, the police and hospitals’ animosity and slowness lead to errors in judgment and shame for the victims. Despite the fact that the POCSO act was a new law enacted to combat child sexual abuse, it has numerous flaws. For starters, the police take a long time to file an FIR, causing the case to be registered late. Second, the victim’s MLC is frequently avoided due to incorrect information provided to parents about the MLC’s long-term negative impact on the child’s health. Furthermore, the workings of agencies such as the national and state commissions for the protection of children’s rights, as well as their monitoring and assessment methods, have not been made public.
Child abuse is unfortunately prevalent worldwide. It includes a plethora of physical, sexual, psychological, and economic violations or maltreatment targeted at an individual <18 years of age. Many developing countries, including India, lack knowledge and comprehension of the crisis’s prevalence and negative consequences. Globalization and economic liberalization, as well as the resulting social upheaval and a significant tendency toward urbanization in India, have increased the susceptibility of children and adolescents to various and innovative types of abuse. In different cultural contexts and socioeconomic conditions, the word “Child Abuse” may have diverse connotations. Above importantly, there is no common definition of child abuse in Indian settings. Child sexual abuse (CSA) is a bleak reality that is all too common in India and has a negative influence on health. We need to emphasize the importance of developing a consistent definition of CSA as well as a validated technique for reliable CSA assessment across India. Furthermore, more in-depth studies of CSA in general and specific populations, such as commercial sex workers and MSMs, are required to develop effective ecological models for CSA prevention and treatment that are sensitive to the diversity of vulnerabilities of children and adolescents in the Indian context.
Even though different laws have been established and enforced, the number of cases is increasing dramatically, endangering the very rights that the government is attempting to safeguard. The main worry is that more than half of the incidents go unreported, and many children are subjected to abuse for the rest of their lives. Cases have grown threefold after the introduction of COVID-19, but reporting has dropped, according to numerous protection helplines in India, since the victim is unable to remove himself/herself from the traumatic setting and the perpetrator. In such instances, local government agencies should be stricter in recognizing signs of abuse in the area’s families and taking necessary action.
The current legislation criminalizing sexual offenses against children was a much-needed piece of legislation, but the adjudication process for the same needs to be made more transparent, and the role of police needs to be much more prompt so that the people feel a sense of contention, security, and credibility throughout the entire process from initiation to adjudication. To overcome and remove this issue at the grassroots level, a pure collective consciousness among the public that encompasses sentiments of love, care, honesty, transparency, and promptness must be addressed. The key to preventing child abuse is to develop prevention strategies and ensure their successful implementation at the local, state, and national levels. However, there is an urgent need for inputs in the form of human resources to achieve the desired results. Recent gains in India’s preventative approach to child abuse are visible, but they require a higher degree of execution and large-scale initiatives to be sustained in the long run.