CHILD -

PROTECTION UNDER
INDIAN LEGAL
FRAMEWORK

Submitted To: Submitted By:

DR. SHIV KUMAR DOGRA AMIT KUMAR

ASST. Professor (Laws) L.L.B. IInd Year
PURC, Ludhiana Roll No. 07/17
 TABLE OF CONTENTS
1 GENERAL INTRODUCTION ................................................................................................................................. 3
2 BACKGROUND.................................................................................................................................................... 9
2.1 INTRODUCTION .......................................................................................................................................... 9
2.2 CHILD ABUSE IN INDIA .............................................................................................................................. 10
3.1 DEFINITION ............................................................................................................................................... 11
3.2 FORMS OF CHILD ABUSE .......................................................................................................................... 11
3.2.2 SEXUAL ABUSE ................................................................................................................................... 12
3.2.3 EMOTIONAL ABUSE ........................................................................................................................... 13
3.2.4 NEGLECT ............................................................................................................................................ 14
4 LEGAL PROVISIONS FOR PROTECTION OF CHILDREN ...................................................................................... 15
4.1 INTERNATIONAL CONVENTIONS AND DECLARATIONS ............................................................................ 15
4.2 CONSTITUTIONAL PROVISIONS REGARDING CHILD ABUSE ..................................................................... 15
4.3 NATIONAL POLICIES .................................................................................................................................. 17
5 STATUTES DEALING WITH THE PROTECTION OF CHILDREN............................................................................ 19
5.2 THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994 .. 19
5.3 THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 ............................................ 20
5.4 THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 .................................................................................. 20
5.5 CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 ................................................................. 20
5.6 THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 ................................................................................. 21
5.8 PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES ACT (POCSO), 2012 ........................................ 21
6 LANDMARK JUDGEMENTS ON CHILD ABUSE .................................................................................................. 25
7 CONCLUSION AND SUGGESTION ..................................................................................................................... 27
7.1 CONCLUSION ............................................................................................................................................ 27
7.2 SUGGESTIONS FOR GOVERNMENT BODIES.............................................................................................. 28
7.2.1 CENTRAL GOVERNMENT ................................................................................................................... 28
7.2.2 STATE GOVERNMENT ........................................................................................................................ 29
7.3 SUGGESTIONS FOR SOCIETY ..................................................................................................................... 29
7.4 ROLE OF NGOs .......................................................................................................................................... 30
7.5 ROLE OF MEDIA ........................................................................................................................................ 30
8 REFRENCES....................................................................................................................................................... 32
BIBLIOGRAPHY ................................................................................................................................................ 32
 1 GENERAL INTRODUCTION
“A nation’s children are its supremely important asset and nation’s future lies

in their proper development. An investment in children is indeed an

investment in future. A healthy and educated child of today is the active and

intelligent citizen of tomorrow.”

- Rabindra Nath Tagore1

Our Children are the citizens of tomorrow. They are the future of the nation. Still, in age of

innocence, they are being assaulted. Child abuse is a crime so common, so heinous and

yet, completely unspoken about within the Indian society. ‘Children’ in any society,

constitute the most vulnerable which needs ‘protection’ and they are a responsibility of the

state as well as the members of the society2. It is this vulnerability that has made them

pawns in the society. In the recent era, the social construct of terms ‘children’ and

‘childhood’ have experienced a drastic transformation. The transition from childhood to

adulthood today is fraught with mindless violence perpetrated against children.

Children are precious treasures of the future and they are the most valuable assets of a

nation and society. It is the duty of State to look after them with a view to ensure the

complete development of their personalities. Since society expect them to grow as

1
“Juvenile Deviations And Protection in the Context of the Juvenile Justice Act, 1986”, Indian Journal of Criminology
and Criminalistics, 25(1-3), 2004 at 6-14.

2
National Consultation on Children in India - Priorities for the 11th Plan, New Delhi, 10 January 2015. Available at:
http://www.tntrc.org/downloads/draft_report_of_Consultation_March_1.doc p. 28 Last visited:12 January 2014.
responsible citizens of the future, they need special care, protection, affection and facilities

because of their tender age, physique and underdevelopment mental faculties. There is no

exaggeration if it is said that future well being of a particular nation depends upon how the

children grow and develop.3

India is home to the largest number of children in the world. Nearly every fifth child in the

world lives in India. There are about 43 crore children in the age group of 0-18 years; 16

crore children are in the age group of 0-6 years, of this there are 8.5 Crore males and 7.88

Crore females. In the age group of 6-18 years, there are about 27 Crore children. It is

estimated that about 40 per cent of children are in difficult circumstances or vulnerable

which include like children without family support, children forced into labour, abused

/trafficked children, children on the streets, vulnerable children, children affected by

substance abuse, by armed conflict/civil unrest/natural calamity etc. Survival, growth,

development and protection of these very large numbers therefore need priority focus and

attention.

The Supreme Court of India in Sheela Barse and Other v. Union of India4 has declared

that a child is a national asset. In Indian scenario a child requires proper care, love, affection

and nourishment but experience shows that the children are subjected to maltreatment in

some situations. The child exploitation in India is a result of the macabre family

circumstances, social environment, poverty, ignorance of family, lack of proper care and

attention and lack of love and affection of the parents Nonetheless, we know that for various

3
Lakshmi Kant Panday v Union of India, 1984(2) SCC 244

4
AIR 1986 SC 1873.
social and cultural reasons, children and adolescents suffer violence in the home, at school,

in legal and child protection systems, at work and in the community. Thus, children and

adolescents are abused precisely in those spaces and places that should offer them

protection, affection, developmental stimulation, shelter and promotion for their rights. One

of the factors that make them highly vulnerable is their lack of autonomy due to threat to

society” may be abused by the police. Children and adolescents, especially girls, may also

be subjected to psychological violence and sexual abuse in the different environments

where they grow up.5

Evidence suggests that only a small part of the violence perpetrated against children is

reported to the legal system and investigated by the authorities, and few offenders are

brought to trial. Furthermore, while in many places in the world there are no reliable systems

for filing complaints, there are estimates that every year 275 million children around the

world are the victims of violence in their households, and some 40 million persons under 15

suffer violence, abuse and neglect. These incidents are reportedly taking place in different

contexts: in families, in schools, in the community, on the street and in work situations. 6

The India Constitution recognizes the child’s right to special protection and support from the

State. However, the growing incidence of violence against children, especially sexual

violence / abuse is a disturbing trend and raises an alarm. What is even more disturbing is

the shrinking spaces for children’s adequate growth and development.

5
http://www.tntrc.org/downloads/draft_report_of_Consultation_March_1.doc p. 28 Last visited: 10 January 2015.
6
UNICEF 2007.
There is no place that can be said to be safe for children today. Even a child’s own home is

not the safest heaven.

The laws related to the child protection have two main aims, firstly to protect and promote

the welfare of the child, and secondly to prevent the abuse of the other children in the

community. Our law and legal system is failed to provide the protection to children in the

cases of the child sexual abuse.

It is also very essential that government be committed to implement and enforce such laws

to provide the actual protection to the children. India has several child related laws. The

absence of implementation and political commitment are the main causes why children in

India are not enjoying the benefits of the laws enacted to promote and protect their rights.

Law enforcers and politicians are known to protect and support pimps, brothel owner and

traffickers in exchange for monetary consideration, and therefore interested in subverting

the laws.

Adequate legislation, better law enforcement, well co-ordinate educated community and

international co-operation are needed to effectively combat child abuse and exploitation of

children. Strong legislation is required to discourage child abuse and exploitation of children

to protect and punish the abuser and exploiters. Penal action alone cannot comprehensively

solve the problem. While the abusers and exploiters are undergoing their sentences

reformation should be ensure that they should not repeat the same offence once they are

released and again in contact with children.

It is very important to conduct the training and awareness programmes on child rights. The

training on child rights should be incorporated in the curriculum of professionals working

with children, such as police, judges, social workers, doctors, teachers etc. To educate the

public on the child rights issues is also necessary; it will empower the person on the street

to act in an informed manner in a child related exigency. In India, the State assumes the

role of parens patriae, of a protective benevolent parent, taking care of the citizenry in

general and the marginalized and vulnerable population in particular. This is more so in

case of children, who are indeed weak and vulnerable, innocent and often ill informed, pliant

and gullible, and therefore, almost always a subject of abuse of the power vested in adults.

They seldom have a voice that gets heard.7

The difference between child and other persons in the community is that the child is not able

to demand, has no capacity to form unions, is incapable of speaking out when very young

and therefore, public opinion in regard to the rights of the child is that the rights are not

supposed to be claimed by the child itself. It is necessary to be done by those who are

responsible for taking care of the child and therefore, whether we are able to implement

rights of the children depends upon our outlook, to understand the demands of the child.

Economic, social and cultural values are required to fundamentally alter to give children

their deserved values and upbringing. The government, non- government and local

7
National Consultation on Children in India - Priorities for the 11th Plan, New Delhi, 10 January 2015. Available at:
http://www.tntrc.org/downloads/draft_report_of_Consultation_March_1.doc p. 28 Last visited: 10 January 2015
authorities play a vital role to provide the support and assistance in caring of the children.

The existing laws should not merely remain on the paper but should be properly

implemented to provide benefit those for whom the laws are enacted.

Traditionally in India, the responsibility of care and protection of children has been with

families and communities. A strong knit patriarchal family that is meant to look after its

children well has seldom had the realization that children are individuals with their own

rights. While the Constitution of India guarantees many fundamental rights to the children,

the approach to ensure the fulfilment of these rights was more needs based rather than

rights based. The transition to the rights based approach in the Government and civil

society is still evolving.

 2 BACKGROUND
2.1 INTRODUCTION

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 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.''8

Child abuse is a violation of the basic human rights of a child and is an outcome of a set of

inter-related familial, social, psychological and economic factors. The problem of child

abuse and human rights violations is one of the most critical matters on the international

8
World Health Organization (1999): Report of the Consultation on Child Abuse Prevention; Geneva,
http://www.who.int/violence_injury_prevention/violence/neglect/en/
human rights agenda. In the Indian context, acceptance of child rights as primary inviolable

rights is fairly recent, as is the universal understanding of it.

2.2 CHILD ABUSE IN INDIA

One of the biggest social stigmas attached to a society is that of child abuse. A child can be

abused physically, sexually or mentally. It can be in the form of injury, neglect or negligent

treatment, blaming, forced sexual stimulation and activity, incest exploitation and sexual

abuse. Child abuse can take place in homes, schools, orphanages, residential care

facilities, on the streets, in the workplace, in prisons and in places of detention. Violence in

any form has a very deep impact on the overall development of the child. Child abuse

results in actual or potential harm to the child's health, survival, development and dignity.

53% of children in India face some form of child sexual abuse. According to the National

Crime Records Bureau, the cases of rape and murder of children increase every year. The

growing complexities of life and the changed social economic conditions have exposed the

children to new and different forms of abuse. But the sad state of the affairs is that such

heinous acts are reported less. It has such a psychological impact on the mind of the child

that he seldom gathers the courage to speak about the act being committed against him. If

even if he confides the fact with someone, the social factors let the fact being dumped under

the fear of family reputation and other related issues. In fact child abuse is a violation of the

basic human rights of a child.

 3 MEANING OF CHILD ABUSE
3.1 DEFINITION

As per the definition given by UNICEF, violence can be physical and mental abuse and

injury, neglect or negligent treatment, exploitation and sexual abuse9. Violence may take

place in homes, schools, orphanages, residential care facilities, on the streets, in the

workplace, in prisons and in places of detention. Such violence can affect the normal

development of a child impairing their mental, physical and social being. In extreme cases

abuse of a child can result in death.

3.2 FORMS OF CHILD ABUSE

Child abuse has many forms: physical, emotional, sexual, neglect, and exploitation. Any of

these that are potentially or actually harmful to a child's health, survival, dignity and

development are abuse.

3.2.1 PHYSICAL ABUSE

The World Health Organization defines 'physical abuse' of a child as an incident resulting in

actual or potential physical harm from an interaction or lack of interaction, which is

reasonably within the control of a parent or person in a position of responsibility, power, or

trust. There may be single or repeated incidents. The Indian society demands the children

to be obedient to their parents. Any form of disobedience leads to anguish amongst the

9
https://data.unicef.org/topic/child-protection/violence/
parents as to the misbehavior of the child which often leads to the reprimanding the child.

Parents often resort to physical beating of the child to discipline the child. Not only does the

parents resort to physical abuse of the child but it more common in schools and workplaces

where the children are physically maltreated for their wrongs. Corporal punishment to a

child whether it is at school, home or at workplace amounts to violation of the human rights

of the child. It violates the right of the child to live with dignity and freedom from violence,

their right to be loved and cared for and their right to be nurtured with respect. Physical

abuse creates a feeling of resentment and harshness in the child.

3.2.2 SEXUAL ABUSE

As defined by the World Health Organization, child sexual abuse is the involvement of a

child in sexual activity that he or she does not fully comprehend, is unable to give informed

consent to, or that violates the laws or social taboos of society. Child sexual abuse is

evidenced by this activity between a child and an adult or another child who by age or

development is in a relationship of responsibility, trust or power, the activity being intended

to gratify or satisfy the needs of the other person. This may include but is not limited to:

 The inducement or coercion of a child to engage in any unlawful activity

 The exploitative use of a child in prostitution or other unlawful sexual practices

 The exploitative use of children in pornographic performances and materials.

53% of children in India face some form of child sexual abuse. Children who report having

been sexually assaulted is 6% and the cases where the abuser was in a relationship of trust

with the child is 50%. Home is the place where the child is the safest but now days the

scenario has changed. In most of the cases of sexual abuse some close relative is the
perpetrator of the crime. Due to fear the child does not complain about the incident. Such

matters as secretly dumped inside the walls of the house to protect the reputation of the

family. Children working as domestic labour or help in hotels and restaurants or any other

place of work are susceptible to sexual abuse. Moreover the abandoned children are also

easy victims of the crime. A number of children ago missing ever year and are forced to

enter prostitution and exposed to other forms of sexual abuse. Children nowhere are safe

from the heinous act of sexual abuse. Poverty, age, gender, caste, lack of safe spaces, lack

of schools, lack of proper institutional care for children without functional families, etc. make

the child prone to sexual abuse. As compared to girls, the boys are also at an equal risk of

sexual abuse. Sexual abuse affects the social, mental and physical growth and outlook of

the child.

3.2.3 EMOTIONAL ABUSE

The World Health Organization (WHO) has defined emotional abuse to include the failure to

provide a developmentally appropriate, supportive environment, including the availability of

a primary attachment figure, so that the child can develop a stable and full range of

emotional and social competencies commensurate with her or his personal potentials and in

the context of the society in which the child dwells. There may also be acts towards the child

that cause or have a high probability of causing harm to the child's health or physical,

mental, spiritual, moral or social development.

These acts must be reasonably within the control of the parent or person in a relationship of

responsibility, trust or power. Acts include restriction of movement, patterns of belittling, and

denigrating, scapegoating, threatening, scaring, discriminating, ridiculing or other non-

physical forms of hostile or rejecting treatment.

Examples of these acts are restricting movement, threatening, scaring, discriminating,

ridiculing, belittling, etc. In India a rising concern is the pressure children feel to perform well

in school and college examinations, which can be seen as a form of emotional stress and

abuse. The children who had undergone emotional are more prone to depression,

estrangement, anxiety, low self-esteem, inappropriate or troubled relationships, or a lack of

empathy.

3.2.4 NEGLECT

Neglect or negligent treatment is purposeful omission of some or all developmental needs of

the child by a caregiver with the intention of harming the child. This includes the failure of

protecting the child from a harmful situation or environment when feasible. Not providing

adequate food or clothing to the child, not providing adequate medical care, rejection and

abandonment, failure to provide appropriate schooling, lack of emotional support and love

are some forms of neglect. Our Indian society has a special affection for sons and this

scenario the daughters are often neglected by the families while the sons are given

preference in everything. Children who face neglect from their family and friends become

quite suffer from psychological complications. It again affects their physical and mental

growth and often such children turn very aggressive also.

4 LEGAL PROVISIONS FOR PROTECTION OF
CHILDREN
4.1 INTERNATIONAL CONVENTIONS AND DECLARATIONS

India has signed a number of international documents and declarations that pertain to the

rights of the children. The United Nations Convention on the Rights of the Child (UN CRC)

was assented to by India in 1992. In 2005, the Government of India accepted the two

Optional Protocols to the UN CRC, addressing the involvement of children in armed conflict

and the sale of children, child prostitution and child pornography. India also signed the

International Conventions on Civil and Political Rights, and on Economic, Social and

Cultural Rights. India is also a signatory to the Convention on the Rights of the Child (CRC)

adopted by the UN General Assembly in 1989 prescribing standards to be adhered to by all

State parties in securing the best interest of the child and outlines the fundamental rights of

children, Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) also applicable to girls under 18 years of age and the SAARC Convention on

Prevention and Combating Trafficking in Women and Children for Prostitution.

4.2 CONSTITUTIONAL PROVISIONS REGARDING CHILD ABUSE

The Constitution of India contains a number of provisions for the protection and welfare of

the children. It has empowered the legislature to make special laws and policies to

safeguard the rights of the children. Several articles of Indian Constitution provide protection

and provisions for protection of child.

Article 15 (3)
The State is empowered to make the special provisions relating to child, which will not be

violative of right to equality.

Article 21

No person shall be deprived of his life or personal liberty, except according to procedure

established by law. The Supreme Court held that „life‟ includes free from exploitation and to

live a dignified life.

Article 21A (Right to Education)

The State shall provide free and compulsory education to all children of the age of six to

fourteen years, in such manner as the State may, by law, determine. Where children are

allowed to work, in such establishment, it is the duty of employer to make provisions for the

education of child labourer.

Article 23

Traffic in human beings and beggar and other similar forms of forced labour are prohibited

and any contravention of this prohibition shall be an offence punishable in accordance with

law.

Article 24 (Prohibition of Employment of Children in Factories, etc.)

No child below the age of 14 years shall be employed to work in any factory or mine or

engaged in any other hazardous employment.

The Supreme Court held that “hazardous employment” includes construction work, match

boxes and fireworks therefore; no child below the age of 14 years can be employed.
Positive steps should be taken for the welfare of such children as well as for improving the

quality of their life.

Article 39 (e)

The State shall, in particular, direct its policy towards securing the health and strength of the

tender age of children are not abused and that citizens are not forced by economic

necessity to enter avocations unsuited to their age or strength.

Article 39 (f)

The State shall, in particular, direct its policy towards securing 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 against moral

and material abandonment.

Article 45

The State shall endeavour to provide early childhood care and education for all children until

they complete the age of six years.

Article 51A (e)

It shall be the duty of every citizen of India, who is a parent or guardian to provide

opportunities for education to his child or ward as the case may be, between the age of six

and fourteen years.

4.3 NATIONAL POLICIES

The major policies that have been formulated to ensure child rights and improvement in

their status are:

 National Policy for Children, 1974

 National Policy on Education, 1986

 National Policy on Child Labour, 1987

 National Nutrition Policy, 1993

 Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes and

Plan of Action to Combat

 Trafficking and Commercial Sexual Exploitation of Women and Children, 1998

 National Health Policy, 2002

 National Charter for Children, 2004

 National Plan of Action for Children, 2005

 5 STATUTES DEALING WITH THE
PROTECTION OF CHILDREN
Following Acts were enacted for the welfare and protection of the rights of the children:

5.1 THE INDIAN PENAL CODE, 1860

 General exception for an act of child (Section 82 and 83)

 Foeticide (Sections 315 and 316)

 Infanticide (Section 315)

 Abatement of Suicide: Abatement to commit suicide of minor (Section 305)

 Exposure and Abandonment: Crime against children by parents or others to expose or to

leave them with the intention of abandonment (Section 317)

 Kidnapping and Abduction (Section 360 to Section 369)

 Procurement of minor girls by inducement or by force to seduce or have illicit intercourse

(Section 366-A)

 Selling of girls for prostitution (Section 372)

 Buying of girls for prostitution (Section 373)

 Rape (Section 376)

 Unnatural Sex (Section 377)

5.2 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 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.

5.3 THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2000

The Juvenile Justice (Care and Protection of Children) Act, 2000 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. Sections 23,

24, 26 of the Act deal with the provisions of child abuse.

5.4 The Immoral Traffic (Prevention) Act, 1956

The Immoral Traffic (Prevention) Act (ITPA) deals with the offences related to sexual

exploitation of children for commercial purposes and to provide enhanced penalties for

offences involving children and minor.

5.5 Child Labour (Prohibition and Regulation) Act, 1986

The Child Labour (Prohibition and Regulation) Act, 1986Act provides for elimination of child

labour and provides for punishments and penalties for employing children below the age of

14 years in various hazardous occupations and processes.

5.6 THE PROHIBITION OF CHILD MARRIAGE ACT, 2006

The Prohibition of Child Marriage Act, 2006 was enacted to put a stop to the practice of

child marriages in India. For marriages already contracted, it says that every child marriage

shall be voidable at the option of the contracting party who was a child at the time of the

marriage.

5.7 THE COMMISSIONS FOR THE PROTECTION OF CHILD RIGHTS ACT,

2005

The Act provides for the Constitution of a National and State Commissions for protection of

Child Rights in every State and Union Territory.

5.8 PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES ACT

(POCSO), 2012

The Protection of Children from Sexual Offences Act, 2012 was passed by the Parliament in

May, 2012. The Act has been drafted to strengthen the legal provisions for the protection of

children from sexual abuse and exploitation. Act defines a child as any person below the

age of 18 years and provides protection to all children under the age of 18 years from the

offences of sexual assault, sexual harassment and pornography. These offences have been

clearly defined for the first time in law. The Act provides for stringent punishments, which

have been graded as per the gravity of the offence. The punishments range from simple to
 rigorous imprisonment of varying periods. There is also provision for fine, which is to be

decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or

authority of child such as a member of security forces, police officer, public servant, etc.

Punishments for Offences covered in the Act are:

i. Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend

to imprisonment for life, and fine (Section 4)

ii. Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which

may extend to imprisonment for life, and fine (Section 6)

iii. Sexual Assault (Section 7) – Not less than three years which may extend to five years,

and fine (Section 8)

iv. Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to

seven years, and fine (Section 10)

v. Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)

vi. Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the

event of subsequent conviction, seven years and fine (Section 14 (1))

The Act also provides for the establishment of Special Courts for trial of offences under the

Act, keeping the best interest of the child as of paramount importance at every stage of the

judicial process. The Act incorporates child friendly procedures for reporting, recording of

evidence, investigation and trial of offences. The Act recognizes that the intent to commit an

offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt
to commit an offence under the Act has been made liable for punishment for upto half the

punishment prescribed for the commission of the offence.

The Act also provides for punishment for abetment of the offence, which is the same as for

the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative

Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is

shifted on the accused. This provision has been made keeping in view the greater

vulnerability and innocence of children. At the same time, to prevent misuse of the law,

punishment has been provided for making false complaint or proving false information with

malicious intent. Such punishment has been kept relatively light (six months) to encourage

reporting. If false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission

of the Special Court. The punishment for breaching this provision by media may be from six

months to one year. For speedy trial, the Act provides for the evidence of the child to be

recorded within a period of 30 days. Also, the Special Court is to complete the trial within a

period of one year, as far as possible. To provide for relief and rehabilitation of the child, as

soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police,

these will make immediate arrangements to give the child, care and protection such as

admitting the child into shelter home or to the nearest hospital within twenty-four hours of

the report. The SJPU or the local police are also required to report the matter to the Child

Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of

the child.
The Act casts a duty on the Central and State Governments to spread awareness through

media including the television, radio and the print media at regular intervals to make the

general public, children as well as their parents and guardians aware of the provisions of

this Act. The National Commission for the Protection of Child Rights (NCPCR) and State

Commissions for the Protection of Child Rights (SCPCRs) have been made the designated

authority to monitor the implementation of the Act.

 6 LANDMARK JUDGEMENTS ON CHILD
ABUSE

P. Unni Krishnan vs. State of Andhra Pradesh10:

Right to education, in this case, was included under the right to life by the Hon’ble
Supreme Court of India. The court observed that ‘education is a preparation for a living
and for life’ and thereafter concluded with the statement ‘we hold that every citizen has a
“right to education” under the Constitution. The State is under an obligation to establish
educational institutions to enable the citizens to enjoy the said right.’

M.C. Mehta vs. State of Tamil Nadu11:

Employers of children in matchsticks and crackers factory were punished with ne of

Rs.20,000 for every child employed in contravention of the provisions of the Child
Labour (Prohibition and Regulation) Act. Such children were directed upon
discontinuation of their employment to be assured education in a suitable institution by
the state government.

Bandhua Mukti Morcha vs. Union of India12:

Bandhua Mukti Morcha is an organisation that works for the release of bonded
labourers in India. They sent a letter to the Supreme Court regarding bonded labour
going on in Faridabad district of Haryana in ‘inhuman and intolerable conditions’. The
court converted the letter into a writ petition, and after confirmation by the investigating
team appointed by the court of the existence of the said bonded labour system, the
court directed:

The State Governments to constitute Vigilance Committees in each district and its sub-
divisions.

10
AIR 1993 S.C. 2178
11
AIR 1997 S.C. 699
12
AIR 1984 S.C. 802
  The District Magistrate to take up as top priority the task of identification of
bonded labour.
 The State Government to concentrate on rehabilitation of bonded labour
and evolve effective programmes for this purpose.

Sakshi v UOI13

This was the case filed by an NGO called ‘Sakshi’ raising concern about the dramatic
increase of sexual violence against women and children and the implementation of the
provisions of IPC namely 377, 375/376 and 354. The petitioners raised the problem of
confining rape cases only to penile-vaginal penetration which has now been amended by
the 2013 Criminal Law amendment as it was violative of Article 21 of the Constitution. A
number of statistical data has revealed that children are often abused in manner other than
the penile/ vaginal penetration. It is often by means of penile/anal penetration, penile/oral
penetration, finger/vaginal penetration or object/ vaginal penetration. Also, putting these
cases within the ambit of Section 377 would be highly unjust. Petitioners had put emphasis
on Article 15 (3) of the Constitution which provides for special provisions for women and
children which necessarily implies ‘adequate provisions’.

13
AIR 2004 SC 3566
 7 CONCLUSION AND SUGGESTION
7.1 CONCLUSION

Child abuse is a state of emotional, physical, economic and sexual maltreatment that is

imposed upon an individual, who is below 18 years of age. It is stated as a globally relevant

phenomenon. In India, there has not been an understanding of the magnitude of this

problem. The various problems that the individuals have been experiencing in their daily

lives have led to prevalence of child abuse. Child abuse has serious physical and

psychological effects upon the health and mind-sets of the individuals. For the effective

development of the country, it is imperative to ensure children are nurtured in a safe

environment, they are provided education, proper nourishment and activities leading to their

productive growth and development. It is the duty of the Government and community to

address the concerns of care and protection to the children.

The primary responsibility of protecting children from abuse and neglect lies with the

families or the primary caregivers. However, communities and civil society and all other

stakeholders are also responsible for the care and protection of children. The overarching

responsibility is that of the state and it is the state that has to create a protective

environment and provide a safety net for children who fall into vulnerable and exploitative

situations.

In India, numerous enactments and arrangements have been embraced by our

administration yet just having the vital bit of enactment does not mean a powerful law. After

thorough analysis of Indian Criminal law, judicial decisions and, it could be concluded that
the present law is adequate in many aspects. Furthermore, when Law is clear at certain

instances, the guidelines laid down are not strictly implemented by the Police, doctors and

the courts which seriously hamper justice for the child victim. The researcher appeals for

further reforms in the rules and procedure under law and their strict implementation for

furthering the interest of the child victims. The Government can also accommodate some of

the principles from the laws of the other countries which are more children friendly and work

towards the advancement of justice. These reforms may include:

7.2 SUGGESTIONS FOR GOVERNMENT BODIES

7.2.1 CENTRAL GOVERNMENT

The National Commission for the Protection of Child Rights has sufficient resources to

monitor the effectiveness of the Protection of Children from Sexual Offenses Act. Appointed

members should be experts in child protection and be backed up by effective investigative

units. The commission should have an independent capacity for investigations.

To Adopt and implement a protocol for the medical treatment and examination of victims of

child sexual abuse, in accordance with guidelines developed by the World Health

Organization. Ensure that physicians and other medical staff respond to cases of sexual

abuse in a sensitive manner that minimizes invasive examination and provides access to

continued reproductive, sexual, and mental health services. Train doctors in all public health

facilities to adopt and use this protocol.

7.2.2 STATE GOVERNMENT

Amend the Juvenile Justice Act to require registration and the meeting of specified

standards by children’s residential care facilities before they open. Establish penalties for

facilities that fail to register.

Children are subject to regular and periodic inspections, and institute regulation of

residential care facilities. Implement the Protection of Children from Sexual Offences Act

and give priority to the training of the police, court personnel, government social workers,

child welfare committee members, and doctors who work with children.

Establish a commission for the protection of child rights if one does not exist in a state. All

states should provide adequate resources so that such commissions can carry out their

mandates and operate effectively and independently. Appoint qualified and independent

experts to these commissions in a transparent manner.

7.3 SUGGESTIONS FOR SOCIETY

Society plays a very important role in the upbringing and growing of a child. Educational

programs should be organized to teach the society at large how to tackle this problem.

Children without parents, or whose parents do not or cannot protect them, are

acknowledged to be at heightened risk of abuse and exploitation. It is therefore imperative

that teachers, health care workers, caregivers and community members be able to

recognize, prevent, and respond to indications of child abuse and neglect. Strategies to

protect and support children must be known and implemented at district and community

levels, and communities should be supported to understand and assert children’s rights. As
an extension of the family, the community should have the ability and commitment to carry

out a number of basic child protection functions, such as:

• Community monitoring of vulnerable groups;

• Community-led oversight of its own child protection situation;

• Community-based services to support families and children in need;

• Facilitating the training of parents on positive caring practices, as well as education in the

dangers of negative practices; and

• Peer education and support

7.4 ROLE OF NGOs

• The group ought to be sharpened about Child abuse the group individuals ought to be

spurred to keep a watch in the group for unpredictable development of youngster victimized

people to and from region their conceivable traffickers and dens.

• NGOs working in the country zones ought to guarantee that folks are mindful of safe

movement hones.

7.5 ROLE OF MEDIA

• Media consideration achieves a few hundred thousand viewers and ought to consequently

serve the accompanying essential capacities.

• The media ought to transmit proper message to guarantee that the victimized people

discover that they are not the only one.

• Victimized people can be made mindful of spots and organizations where they can look for

help.

• Make mindfulness that human trafficking is unseemly and illicit and has negative results.

• Wide exposure ought to be given with respect to the legitimate, correctional procurements

against child abuse and the business as usual of the traffickers through radio, TV and so

forth.
 8 REFRENCES
BIBLIOGRAPHY

1. Assefa Bequele and Jo Boyden (ed.), Combating Child Labour, Geneva: ILO, 1988,
P.P. 149-152.

2. Dhagamwar, Vasudha (1997)., "Childhood Denied Under the law", Mainstream, Vol.
35, No. 37, p.33.

3. Ghosh, (1988) "A New Approach", Seminar, No. 350, Oct, p.38.

4. Government of India. (1980) Profile of the Child in India, New Delhi: Ministry of Social
Welfare, p.p. 170-2 10.

5. Government of India, (1990) The Constitution of India, New Delhi: Ministry of Law,
p.8.

6. Government of India, (1997) Ministry of Labour, Annual Report, Government of India

Publication, p. 101.

7. Gowri Ramnarayana, (1992) "Education is the Answer - UNICEF Chief on the Child
Literacy Movement", Frontline, July 3 1

8. IUACE, (1990) "The Rights of Child", New Delhi: Indian University Association for
Continuing Education, . p.p 1-27.

9. Kurian, P.H., (1999), "Towards Elimination of Child Labour in Kerala", Kerala Calling,
October.

10. Mahavir Jain, (1996) "Elimination of Child Labour in India: Government Initiatives",
The Administrator, Vol. XLI, No 3, July-Sept, p. 4.

11. MV Shobhana, (1998) "History of Legislation on Child Labour in Colonial India",

Social Action, Jan-Mar, p.p. 1-7
12. Myron Weiner, (1991) The Child and the State in India, Delhi: Oxford University
Press, p. 79.

13. Myron Weiner, (1996) "Child Labour in India: Putting Compulsory Primary Education
on the Political Agenda", Economic and Poiltlcal Weekly, Nov. 9-16, p.3007.

14. Neera, Burra (1986) "Old Flaws in new Child Labour Bill", The Times of India, 7 Nov

15. Sachdeva, D.R., (1992), Social welfare Administration in India, Allahabad: Kitab
Mahal, p. 612.
16. Savitri Goonesekhere, (1988) Children Lau and Justice: A South Asian Perspective,
New Delhi :Sage, . p 11

17. Smithu Kothari, (1983) "There is Blood on those Match Sticks", Economic and
Political Weekly, July 2, p. 1 197.

18. UNI Backgrounder, (1986) "Child Labour in India", 26 Nov Vol. XI, No. 47

19. UNICEF, (1990), "The World Summit for children", New York: UNICEF, p.p. 1- 32.