LEGAL IMPLICATIONS OF CHILD ABUSE IN INDIA: The current legal implications for the accused as well as protection or lack of protection for children who have been abused and the need for better processes.

​RESEARCH QUESTION- HAS CRIME AGAINST CHILDREN REDUCED WITH THE ADVENT OF THE POCSO ACT IN INDIA? 
INTRODUCTION 
Child Abuse is the act or failure of the parents or caregivers of a child to give proper care to the child. This involves emotional, physical, sexual exploitation and negligence. Child Abuse can impair the child’s physical and emotional growth and it can happen at homes, school, playgrounds etc. Today, child abuse is a global issue. Countries across the world have addressed the issue and the need for protection of children. The World Health Organization (WHO) defines child abuse and child maltreatment as “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”. Nearly 3 in 4 children suffer physical violence at the hands of their parents or caregivers.
Every State has its procedure and laws that deal with child abuse. This article provides information regarding the laws and policies that deal with child abuse in India and draws a comparison between the laws in India and other countries. 
CHILD ABUSE LAWS IN INDIA 
India has one of the largest child population in the world. Regardless of the laws and policies implemented to curb child abuse, the condition is yet to become better in the country. The number of child sexual abuse cases increases every year in the country. “As many as 109 children were sexually abused every day in India in 2018, according to the data by the National Crime Record Bureau, which showed a 22 per cent jump in such cases from the previous year.”
India’s young population grapples with the lack of access to education, basic resources and healthcare. This makes them susceptible to adverse childhood experiences. The vision of the Constitution of India is to nurture and provide necessities to children. The State must look after their well-being.
Constitutional Provisions

• Article 14 of the Indian Constitution ensures that every citizen is treated equally before the law. 
  
• Article 15 ensures that no person shall be discriminated based on sex, caste, religion or place of birth. This Article also empowers the State to make special provisions for the protection of women and children.
  
• Article 21A makes it mandatory for the State to provide free and compulsory education to children belonging in the 6-14 age group. 
  
• Article 23 prohibits trafficking in human beings and forced labour.
  

• Article 24 prohibits child labour and the working of children under 14 years in hazardous work environments. 
  

Directive Principles of State Policy 

• Article 39 (e) ensures that the health and strength of men, women and children are not abused and that economic necessity does not make them do jobs that are unsuited to their age or strength. 
  
• Article 39 (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment.
  
• Article 45 provides for the State’s duty to free and compulsory education for all children until they complete the age of six years. 
  

Other Provisions 

• Article 51A-(k) lays down a fundamental duty of the citizens which directs parents or guardians to provide opportunities for education to their child/ward between the age of 6 and 14 years.
  
• Article 243(g) read along with Schedule 11- provides for the institutionalization of child care by seeking to entrust programmes of women and child development to Panchayat with a bearing on the welfare of children.
  

Policies and Programmes 

• National Policy for Children 1974, is the first child-centric programme launched by the government of India for the all-round development, care and protection of children. It recognises children as the supreme asset of the country and ensures that their rights, as enshrined in the constitution and the UN Declaration of Rights, are implemented. 
  
• National Policy on Education 1986 called for a special emphasis on equality in the sphere of educational opportunity. It called for a child-centred approach in primary education.
  
• National Policy on Child Labour 1987 is an initiative of the government to strictly implement the provisions of the constitution about the prohibition of Child Labour and works towards the betterment of the conditions of working children.
  
• National Charter for Children 2003 is a comprehensive document that empowers children with the right of being a child and enjoying their childhood to the fullest. It directs the State, the society, the community and the families to develop a healthy, safe and positive environment for the growth of every child in the country. It also secures the right of adolescent children to proper education and other facilities, that would lead them to be productive citizens for the nation. 
  
• National Plan of Action for Children 2005 aims to tackle the various problems of a child’s life. It works on the prohibition of child marriage, abolition of female foeticide, female infanticide and upholding and securing the rights of children in difficult circumstances such as abuse, exploitation and neglect. 
  
• Child-line Services has been launched by the government especially after the Twelfth Five Year Plan to help children in case of emergency or in situations where they cannot seek help from anywhere else. It is run by Childline India Foundation, the mother organisation for this scheme in the country. Over the years, the Childline has received over millions of calls, specifically associated with issues of medical support, a shelter for neglected or abandoned children, emotional guidance and protection from abuse amongst others.
  
• National Institute of Public Cooperation and Child Development is the foremost organisation for the documentation and compilation of research and initiatives related to women and child development. It works in the areas of child protection, child care support services, awareness against abuse and exploitation and the rights of children.
  
• The Twelfth Five Year Plan was launched in the year 2012 which focused on child development and ensuring a higher sex ratio in the country. It was a major governmental step towards increasing the status and condition of children in India, especially the female child. 
  

Acts and Amendments 

• Protection of Child Rights Act, 2005 led to the setting up of the National Commission for Protection of Child Rights in the year 2007. The National Commission for Protection of Child Rights (NCPCR) is a statutory body that works under the aegis of the Ministry of Women and Child Development, Government of India and is the nodal agency for preserving the rights of children, spreading awareness against child abuse in all its forms and providing children with proper redressal and rehabilitation in case of violation of their rights.
  
• Protection of Children from Sexual Offences Act (POCSO) 2012, is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
  

Below are my key learnings after interacting with Counselors, Social Workers, DCPU (District Child Protection Unit), Child Welfare Officers and Special Juvenile Police Units (SPJU) at a workshop on “Child Sexual Abuse” conducted by Constitutional Rights Research and Advocacy (CCRRA), a non-profit organization in Kochi, Kerala-

• A lot of child sexual abuse cases and child marriages go unreported in North India and the police authorities only get to know about this when the child comes to the hospital for delivery. 
  
• There is a lack of trust in the police authorities. The survivors often assume that the police have joined hands with the accused. 
  
• Defense lawyers find loopholes in the cases and pieces of evidence are lost due to non-reporting or filing of a written statement after many months from the incident, thus losing the credibility of the witness.
  
• There is a lack of credible and reliable translators. Translators are people who aid the police officers to question the accused in their mother tongue. 
  
• Under the POCSO (Protection of Children from Sexual Offences) Act, whatever the victim says must be taken as the truth but again it is the judge who decides the credibility of the statement. Therefore it remains very subjective. 
  
• The prosecutors do not have enough time to read or analyse the case properly as a matter of which defendants often win the case.
  
• Male-child victims undergo their suffering in silence and their aggressive behaviour after such an incident is often mistaken as age-related changes.
  
• A case analysis of “Independent Thought v. Union of India” was done. Independent Thought case has taken a major step to protect the girl child by criminalising sexual intercourse with a wife below 18 years. But, the Supreme Court has not laid down any special provision for dealing with such cases where the interest of other child is also at stake. It did not consider those cases where the husband is also a minor and would be as innocent as the girl. In India, cases of eloping and marriage are very prevalent, the Apex Court’s ignorance towards such cases is against the interest of the boy child. 
  
• The courts must be friendly and must not remind the children about their traumatic experience. For example, Delhi courts have separate entrances for the victims of child abuse. 
  
• It is a task to get the child victims to talk about the incident as they are not even aware of the seriousness of the issue. Therefore toys can be used as an aid.
  
• People should be made aware of the legal procedure and the tendency to have instant justice must be forgone.
  
• There is a need for child-friendly police stations and more number of women police officers. 
  
• There should be a victim support officer in every police station. 
  
• The accused must be away from the survivor even after the remand. The Judge must pass orders for the same. 
  

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO), 2012 
The Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. 
People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. In keeping with the best international child protection standards, the Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who knows that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six-month imprisonment and/ or a fine. 
The police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise. The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed were required to make further arrangements for the safety and security of the child.
The said Act makes provisions for the medical examination of the child in a manner designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor.
The Act recognizes almost every known form of sexual abuse against children as punishable offences and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child. Further, by providing for a child-friendly judicial process, the said Act encourages children who have been victims of sexual abuse to report the offence and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time, the said Act will provide a means not only to report and punish those who abuse and exploit the innocence of children but also prove an effective deterrent in curbing the occurrence of these offences. 
The Act does not leave any possibility of consent given by persons under 18. This would mean that if a seventeen-year-old boy or girl had a nineteen-year-old sexual partner, the partner would be liable to be booked under the provisions of the POCSO Act. The Act also does not provide any clarity on what happens when two minors engage in any kind of sexual activity. There needs to be a clear provision in the POCSO Act that lays down what documents should be considered for proving the age of the child, and whether the benefit of the doubt should be given to the child if the ossification test cannot provide an exact assessment.

RESEARCH QUESTION- HAS CRIME AGAINST CHILDREN REDUCED WITH THE ADVENT OF THE POCSO ACT IN INDIA?
The POCSO Act came into force with effect from 14th November 2012. The number of cases since the advent of the Act has steadily increased over the years. The high rate of pendency of the cases makes it difficult to give speedy justice to the victims. States like Uttar Pradesh and West Bengal continue to ignore the Supreme Court's directive to set up Special POCSO Fast Track Courts (FTC) despite extremely high pendency rates. It should be noted that as per the Act, trial in POCSO cases should be completed within a year but there are over 1.66 lakh cases of sexual abuse of children and rape cases pending in the courts. The Supreme Court said that if special orders were not passed, a situation would be reached where the judicial system in relations to POCSO cases could come to a grinding halt and if that happened then the Rule of Law would break down and people could resort to revenge and violence outside the courtrooms.
After 2016, there was a surge in crimes committed against children that called for immediate action and to make punishment under the POCSO Act more stringent. This led to the “Protection of Children from Sexual Offences (Amendment) Act, 2019.” The Amendment contains provisions for increased punishments and death penalty in the rarest of the rare cases. But the downside here is that the death penalty as punishment can lead to the murder of the victim as well as under-reporting of cases. Further, the amended Act does not mention compensation to be given to the victim and no solution to reduce the pendency of the cases. 

ABUSE LAWS IN OTHER COUNTRIES

• United Kingdom: rewrote its criminal code in the Sexual Offences Act of 2003. This Act includes definitions and penalties for child sexual abuse offences, and (so far as relating to offences) applies to England and Wales and Northern Ireland. The Scottish Law Commission published its review of rape and sexual offences in December 2007, which includes a similar consolidation and codification of child sexual abuse offences in Scotland.
  
• United States: Child sexual abuse has been recognized specifically as a type of child maltreatment in U.S. federal law since the initial Congressional hearings on child sex in 1973. Child sexual abuse is illegal in every state, as well as under federal law. Among the states, the specifics of child sexual abuse laws vary, but certain features of these laws are common to all states.
  
• Malaysia: Few forms of child abuse are a crime under Malaysian law. Suspects can be charged only for rape (penile penetration) and incest. Police can do little since the legal definition is limited. Malaysian courts seldom convict people for child sexual abuse, and Malaysia keeps no official statistics on child abuse.
  
• Yemen: The definition of child abuse has not been given in Yemen. 
  

CONCLUSION 
If you suspect that a child is undergoing child abuse, it is necessary to report it to the police. Child Abuse is a criminal offence. Early identification and reporting can spare the child from further abuse.