Thursday, 7 January 2010

Indian Penal Code (IPC) and Child Sexual Abuse (CSA)

Statistical evidence shows that over 50% of Indian children are victims of Child Sexual Abuse. Yet there are no explicit CSA laws in India.

Indian Constitution, Children and Personal Liberty

Before taking a look at the IPC, it is important to note that the Indian constitution, under various articles, implies that it is the responsibility of the State to provide a healthy environment for children and protect their rights. This means that any shortcomings of the IPC, the Indian legal system and the law enforcement agencies are shortcomings of the Constitution and the State in fulfilling its duties towards its citizens.

Article 39: The state shall, in particular, direct its policy towards securing:

e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength;

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 against moral and material

Article 15 (3): Nothing in this article shall prevent the State from making any special provision for women and children

Article 21: Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law

IPC and its deficiencies

The Indian Penal Code does not define laws dealing exclusively with child abuse. This is unlike most other countries in the world. To address cases of CSA, the IPC provides following points of law with their own severe limitations -

  1. Section 293 – Sale, etc., of obscene objects to young person

This section penalises the circulation and distribution of obscene objects and print material to anyone under the age of twenty. While the constitution defines children as individuals under the age of sixteen, this law talks about young people under the age of twenty. There is a discrepancy in the law with respect to the definition of a child and in the fact that there is no differentiation made between the crime against a child and a young person. Given the different maturity levels, the impact is bound to be different and hence the punishment should be in line with the damage caused

  1. Section 294 – Obscene acts, songs and expressions in public places

Under section 294 of the IPC, any individual found guilty of obscene acts and/or expressions in public places is liable to be imprisoned to a maximum of six months and/or a fine. However, once again there is no specific mention of children in this provision

  1. Section 325 - Punishment for voluntarily causing grievous hurt

The law makes intentional grievous hurt caused to any person punishable with a prison sentence of up to seven years and/or a fine. The law is not clear on what constitutes grievous hurt and hence there is no sufficient protection provided under this law for children.

  1. Section 354 – Assault or criminal force to woman with intent to outrage her modesty

This law is limited to women and hence does not consider men as possible victims. Thus even if this to some extent safeguards the girl child, the male child is left at the mercy of the other IPC sections to find justice.

  1. Section 375 - Rape

To begin with the definition of rape is very narrow - “intentional, unlawful sexual intercourse with a woman without her consent”. Not only does this leave male rape outside of the purview of rape law, it does not differentiate between an adult and a child and does not encompass forced oral/anal sex and sodomy as rape or intention to rape. Also the act is silent if the perpetrator is a female as it is assumed that the offender will be a male.

According to Section 375 a man can have a legal wife of fifteen years of age, but the consensual sex age for girls is defined to be sixteen. To complicate things further marriage laws state that the marriageable age for girls is eighteen and for boys it is twenty-one. Child labour laws define an upper age limit of fourteen. Thus there are a number of confusing points of reference in the law itself as a definition of “child”.

  1. Section 376 – Punishment for Rape

This is an exhaustive section specifying rigorous course of action for those in position of authority and ability to earn the trust of people such as police officers, hospitals etc. However, the section is ambiguous on the topic of teachers, schools, orphanages, crèches, etc. as it talks about children’s institutions and as we have seen there are different ways of defining children in the Indian legal literature.

  1. Section 417 – Punishment for cheating

Again the law is ambiguous on the definition of cheating; is it cheating in terms of material possessions or cheating an individual emotionally, there is no clarity. How should different acts of cheating be punished deserves a mention as well, however, there is just one simple prison term and/or fine defined for all forms of cheating. At the end of the day, in a common law country like India, the onus then rests on the judges passing a verdict on individual cases. With corruption abound, the sanctity of the verdicts is questionable.

  1. Section 452 – House trespass after preparation for hurt, assault or wrongful restrain

This section qualifies trespassing the home of an individual with the intention of causing harm or assaulting, or using that intention to instil fear in any individual. The nature of hurt and assault are not defined and once again there is no particular differentiation between an adult and a child.

  1. Section 509 - Word, gesture or act intended to insult the modesty of a woman

Akin to Section 354, this point of law is limited to women leaving male child victims wanting.

In addition to these specific sections, there are other sections of the IPC (302, 323, 324, 326, 342, 343, 344, 363, 366, 458, 503, 506, and 511) that have been used by lawyers to prosecute CSA offenders. However, given that there is nothing that speaks exclusively for the crime itself, all these sections are mere support systems. For example in a case where the child is first kidnapped and then sexually abused, the lawyers could easily use Section 363 and have the offender punished for kidnapping. But the other crime, that of CSA remains unpunished. The scales of justice thus rest on a weak balance.

There was an initiative taken by Women and Child Development (WCD) Ministry in 2005 to introduce the Offences against Children Act, 2005. This Act addressed CSA in addition to physical abuse, sale of children and trafficking in children. The procedures, remedies and punishment were defined and this was seen to be a voice for 40% of India’s population. However, after two years of deliberation, the law ministry rejected the bill stating that “most provisions for child protection already exist in different laws and therefore, there is no need for a separate enactment of legislation.”

This is the strangest declaration given the silence of IPC on explicit CSA crime. The only places that talk categorically of child sexual abuse are investigation procedures are defined such as the amendment to section 273, Code of Criminal Procedure, 1973 which states, “Provided that where the evidence of a person below eighteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court shall, take appropriate measures to ensure that such person is not confronted by the accused.

Indian Courts and CSA

The rate of disposal of crime against children by Indian courts is very poor. The most comprehensive data available in this regard is that from NCRB –

Crime Head

Cases pending trial in 2007[1]

Compounded / Withdrawn

Convicted

Acquitted/

Discharged

Pending at Year End

Rape (IPC 376)

15,038

0.2%

6.3%

12.0%

81.5%

Murder (IPC 302, 303)

4,606

0.2%

8.3%

9.6%

81.9%

Kidnapping & Abduction (IPC 363 – 369, 371 – 373)

12,116

0.4%

5.1%

10.1%

84.5%

Table 4: Disposal of Cases by Courts of Crimes Committed Against Children During 2007

(Source: National Crime Records Buraeau)

The IPC’s lack of time stipulation and Indian courts overburdened work load (in the absence of a special Children’s Court) leads to delay in handing out justice as highlighted by the above data. In addition, courts inconsistent in their verdict with the higher courts often being lenient. In order to highlight the compounded limitations of these issues of the Indian legal system, let us take an example –

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat

A government servant was charged of assaulting two girls around 10-12 old. The trial court convicted the accused for wrongful confinement (Section 342) and outraging the modesty (Section 509) of the victims. The offender was sentenced to two-and-a-half years' rigorous imprisonment. On further appeal, the High Court, found the accused guilty under Section 376 and Section 511 as to have attempted to commit rape. The Supreme Court, upheld the High Court conviction, however, altered the sentence to 15 months' rigorous imprisonment for the following reasons-

§ the appellant lost his job in view of the conviction recorded by the High Court;

§ he must have suffered great humiliation in the society;

§ the prospects of getting a suitable match for his own daughter have perhaps been marred in the wake of the finding of guilt recorded against him in the context of such offence; and

§ the incident occurred some seven years back and about six-and-a-half years elapsed since the dismissal of appeal by the High Court

With no prescribed CSA laws, there is no definition of the loss and damage suffered by the victim. This implies that justice does not take consequences into consideration while announcing the sentence. The offender is punished only as deemed fit by the presiding judicial officer.

CSA and International Conventions

Indian Constitution’s proclamation of granting a free, dignified and healthy environment for children has been reinforced by the UN Convention on the Rights of the Child, 1989. India ratified the treaty in 1992, articles 19 and 34 of which state –

Article 19

§ States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

§ Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

§ The inducement or coercion of a child to engage in any unlawful sexual activity;

§ The exploitative use of children in prostitution or other unlawful sexual practices;

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

Despite having agreed to undertake these obligations over fifteen years ago, the Government of India has made little progress on ensuring legal rights for suffering children.




[1] This is a sum of cases pending in the last year and the new cases registered in 2007


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