Vikas Khatkar

BALLB (Hons.) 4th Year

Panjab University
Sector-14, Chandigarh
Email- Khatkarvikas95@gmail.com

“Protection of Children from Abuse and Neglect in India”

Abstract

“To deny people their human rights is to challenge their very humanity.” -Nelson Mandela

Historically, child sexual abuse (CSA) has been a hidden problem in India, largely ignored
in public discourse and by the criminal justice system. Until recently, CSA was not
acknowledged as a criminal offence; rape was the main, if not the only, specific sexual
offence against children recognised by law in India. In the absence of specific legislation, a
range of offensive behaviours such as child sexual assault (not amounting to rape),
harassment, and exploitation for pornography were never legally sanctioned. In the past few
years activists, Non-Governmental Organisations (NGOs) and the central government’s
Ministry of Women and Child Development have actively engaged in helping break ‘the
legislation silence’ and have generated substantial political and popular momentum to
address the issue. The movement, spearheaded by the Ministry of Women and Child
Development, led to the enactment of new legislation called the Protection of Children
from Sexual Offences (POCSO) 2012. Apart from POCSO, 2012 the other notable
legislation in child protection is the Juvenile Justice (Care and Protection) Act 2000.Several
government initiatives include National Commission for Protection of Child Rights
(NCPCR), Integrated Child Protection Scheme (ICPS).

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Introduction

The Human Rights are those rights which are essential for the protection and maintenance of
dignity of individuals and create conditions in which every human being can develop his
personality to the fullest extent. Every individual possesses and enjoys those rights without
any criteria of his/her caste, creed, colour, religion, race, age, sex, place of birth, nationality
etc. They are universal in nature. Since human rights are not created by any legislation, they
resemble very much the natural rights.1 The UN Convention of Rights of Child (UNCRC)
(1989) is the most widely endorsed child rights instrument worldwide, which defines children
as all persons aged 18 years and under. In the UNCRC, Article 19.1, Child Protection has
been defined as “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. Failure to ensure child right to protection adversely affects all rights. Child
protection is critical to the achievement of Millennium Development goals (MDG). These
MDGs can’t be achieved unless child protection is an integral part of program & strategies to
protect children from child labour, street children, child abuse, child marriage, violence in
school and various forms of exploitation.
Several well developed countries of the world have well developed child protection systems,
primarily focused at mandatory reporting, identification and investigations of affected
children, and often taking coercive action. The burden of high level of notifications and
investigations is not only on the families, but also on the system, which has to increase it’s
resources. In these contexts, the problems of child protection in India, with huge populations,
and additional socio-economic constraints, need serious and wider consideration.2

1
DR. SK KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS 806 (19th ed, 2014)
2
UNCRC Convention Briefs, 1989 P.19

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Child Right Convention (CRC) and India

Adopted by the United Nations in 1989, the CRC is an international agreement legally
binding on the party’s signatory to it. It has incorporated in its various articles rights of
children without any discrimination whatsoever. It was ratified by India on 11 December
1992. It has a preamble setting out different principles the CRC is built upon.

It is based on four basic principles:

1. Non-discrimination (Article 2)
2. Best Interest of the Child (Article 3)
3. Right to Life Survival and Development (Article 6)
4. Right to be Heard (Article 12)

The provisions of the CRC have been categorised as:

PART I (Article 1-41): It sets out the rights of children and obligations of governments. The
rights can further be categorised as:

 Survival Rights: the right to life of child and access to basic necessities to
existence such as adequate food, shelter, standard of living and medical
requirements.

 Development Rights: the right to education, to practice the religion of own choice
and cultural activities, freedom of thought and conscience, to play and leisure and
to access to information.
 Protection Rights: rights that protect children from abuses which may be
consequential to several kinds of circumstances, such as children subject to
procedures of criminal justice system, children in employment, children who are
refugees, children who have undergone abuse or exploitation.
 Participation Rights: rights of children to participate in activities of the society,
especially matters that may affect their life, to assemble peacefully and to join
associations.

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  PART II (Article 42-45): It contains provisions regarding implementation of the
provisions of the CRC.
 PART III (Articles 46-54): It includes provisions for signing the convention by
parties and rules and procedures thereafter for the purpose of ratification,
enforceability, amendment, denouncement, etc. of the convention.

Three Optional Protocols to the CRC have been introduced which are:

 Optional Protocol to CRC on Sale of Children, Child Prostitution and Child

Pornography.
 Optional Protocol to CRC on the involvement of Children in Armed Conflict.
 Optional Protocol to the Convention on the Rights of the Child on a
Communications Procedure.

As of now India has not signed the third optional protocol.

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Child Sexual abuse in India

In India, the number of children needing care and protection is huge and increasing.
Uncontrolled families, extreme poverty, illiteracy result in provision of very little care to the
child during the early formative years. Even services that are freely available like education,
nutrition, vaccines, sanitation are poorly utilized. The urban underprivileged, migrating
population (a very huge-sizable number) and rural communities are particularly affected. In
large cities, there are serious problems of street children (abandoned and often homeless) and
child labourers, employed in hazardous work. Children in difficult circumstances such as
children affected by disasters, those in conflict zones, refugees, and HIVAIDS victims need
appropriate care and rehabilitation.
In India, there are about 440 million children; about 40% of them are vulnerable or
experiencing difficult circumstances. Twenty-seven million babies are born each year. A
large majority these births are among the underprivileged section of the population, mostly
unplanned and where the parents cannot provide proper care to their children. The situation
of the new-born and the periods of infancy and early childhood are particularly critical and
the morbidity and mortality rates continue to remain very high. Maternal under nutrition,
unsafe deliveries, low birth weight babies and poor newborn care, lack of adequate
immunizations, poor nutrition, neglect of early development and education are major issues
that need to be appropriately addressed. Child rearing practices reflect social norms and very
often adverse traditions are passed from one generation to the next, especially in illiterate and
poorly informed communities, and are extremely resistant to alter. As per Government of
India (2007) survey, the prevalence of all forms of child abuse is extremely high (physical
abuse (66%), sexual abuse (50%) & emotional abuse (50%). There is regional and rural–
urban variation in the rates and extent of CSA in the country. Girls are more vulnerable to
sexual abuse, although boys too reported a high percentage of victimisation and are subject to
greater social stigma. Although sexual exploitation and abuse is strongly correlated to
poverty, it occurs in families across the socioeconomic and religious spectrum. However,
factors that facilitate CSA, such as poverty, overcrowding, extended family living
arrangements, abundance of street children, and lack of recreational facilities in families are
by no means exclusive to India. Admittedly, their impact might be exaggerated or intensified
given the population density and size in India. Thus, a complex mix of individual, ecological
and situational factors that are said to facilitate CSA might account for its prevalence in the
Indian context.

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Sexually abused children are severely let down by systemic failure of the criminal justice
system to redress their grievances and by social ostracism associated with such abuse as only
3 % of CSA offences were reported to the police. It is unsurprising that CSA is severely
underreported given the shame and associated socio-cultural stigma, especially if the abuse is
in the context of the family. This phenomenon is not unique to India but common to
collectivist cultures in other Asian countries where an individual’s experience is ignored so as
to protect the family from shame associated with sexual abuse.3

Response of Government

Considering the importance of the social sector and to accelerate the development process the
Department of Women and Child Development was elevated to the status of an independent
Ministry at the Union level from 20th February 2006. The consequent changes have helped in
giving children’s issues a focused attention and enhanced allocation. Children’s issues were
also consolidated and entrusted to MWCD for better and effective implementation.

Immediately after the adoption of WFFC (World fit for Children) in 2002 the process was
started for formulation of a National Plan of Action for Children as per the national
requirements to achieve the targets set in WFFC. The Plan of Action was finalized in 2005
with the approval of the Union Cabinet to give highest level of importance to the issue. The
Plan includes goals, objectives and strategies in the areas of education, health, nutrition,
water and sanitation, early childhood care, protection of children in difficult circumstances
and in conflict with law, rights of girl child and adolescents, combating trafficking, child
labour and HIV/AIDS and Child participation. It also contains the resource mobilization and
monitoring of its implementation. Eight major parameters of the Plan are being regularly
monitored at the Prime Minister’s level. These parameters include reduction of IMR, CMR,
MMR, universal access to safe drinking water and sanitation, elimination of child marriage,
elimination of disability due to poliomyelitis and reduction in proportion of infants infected
by HIV/AIDS. Similar actions were undertaken by the state governments to enact their own
action plans.4

3
Dr. Asha Bajpai, Child Rights in India , Oxford printing press (New Delhi) 2003
4
National Report on “World fit for children”- Ministry of Women and Child development 2007

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Legal background to CSA

Until 2012, the only sexual offences against children recognised by the law were covered by
three sections of the Indian Penal Code (IPC) not specific to children. The only crimes
registered were rape (sexual intercourse without consent—section 376), outraging modesty
of a woman (unspecified acts—section 354) and unnatural acts defined as “carnal intercourse
against the order of nature with any man, woman or animal” (anal sex, homo-sexuality or
bestiality—section 377). Consequently, other forms of non-penetrative sexual assaults,
harassment and exploitation were not explicitly recognised as crimes and therefore not
recorded. Increased activism around child protection issues in the media and public discourse
might partly account for the Government of India passing a special law called, ‘The
Protection of Children from Sexual Offences (POCSO) 2012. This Act criminalises sexual
assault, sexual harassment, and pornography involving a child (Less than 18 years of age) and
mandates the setting up of Special Courts to expedite trials of these offences.

1. Recorded rape against children-comparative figures (source: NCRB 2017 website)

Year All India Maharashtra

2001 2113 367

2005 4026 634

2010 5484 947

2014 8541 917

2016 12,363 1546

The ordinary Criminal laws were inadequate in protection of children victim of sexual abuse.
These provisions of IPC, 1860 doesn’t include common forms of Child sexual abuse nor
about their impact on child. The restrictive implementation of “Penetration” in the
explanation to Section 375 is an obstacle to cases of Child sexual abuse. Section 376(A) also
has the same reasoning. The existing definition of rape and molestation should be suitably
amended to adequately address the various types of assaults on children. The testimony of
child victim needs to be recorded sensitively by police/magistrate. The recording of
statements needs a special provision in CrPC.5

5
Annual Report 2014, Child line Organization (Child Sexual Abuse and law)

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Features of POCSO, 2012

POCSO 2012 does not use the term ‘rape’ more commonly used and also does not confine
penetrative sex to penile penetration. Instead, it broadens the offence termed ‘penetrative
sexual assault’ (section 3) to include oral sex, as well as, insertion of any object into anus,
mouth or vagina, in addition to penile penetrative sex. POCSO also criminalises a range of
behaviours as being sexual assaults, short of penetration (section 7). Additionally, the
offences of ‘aggravated’ penetrative and non-penetrative sexual assault is made more serious
and attract stronger penalties (sections 5, 9) when commit-ted by a specified range of
perpetrators, in a wide array of situations or conditions, and/or has a severe impact on the
victim. POCSO is also forward thinking in many aspects, in that, the definition of sexual
harassment includes repeatedly or constantly following, watching or contacting a child either
directly, electronically or through other means [section 11(iv)]—thus, covering incidents of
child harassment via sex chatting or sexual cyber bullying. The Act is quite distinctive in that
it penalises abetment of or attempt to commit any of the offences listed in the preceding
sections (section 16). Another ‘extraordinary clause’ (section 29) in the Act is the
presumption of guilt of the accused, until proven innocent. The provision of Special Courts
(section 35) where trial proceedings may be conducted in a more sensitive manner with the
victim’s testimony given either ‘in camera’ (i.e. privately), via video-link, or behind curtains
or screens, is intended not only to reduce trauma but also protect the identity of the child. The
Special Court plays a pivotal role in how the law and the evidence may be interpreted.6

Child Marriage Restraint Act, 1929 (Amended in 1979)

It restraints child marriage until the minimum age, i.e. 21 for male and 18 for female, has
been attained by them. It applies to the people of all the religions.

Bonded Labour System (Abolition) Act, 1976

The act aims at eradicating the bonded labour system in India which exploits the weaker
sections of society, especially children.

6
Jyoti Belur, Brijesh Bahadur Singh (Child sexual abuse and the law in India: a commentary) DOI
10.1186/s40163-015-0037-2

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Immoral Traffic (Prevention) Act, 1956

Certain amendments are proposed to the Immoral Traffic (Prevention) Act, 1956 to widen its
scope, focus on traffickers, human rights of victims and to make its implementation more
effective. The major amendments include deletion of section 8 that provide punishment for
seducing or soliciting for the purpose of prostitution and section 20 that relates to removal of
a prostitute from any place. Deletion of these sections have been proposed keeping in a
view that women involved in prostitution are victims of trafficking and booking under these
sections re-victimizes them. The other major amendments include insertion of new sections
defining the offence of “Trafficking in Persons”, punishment for persons involved in
“Trafficking in Persons” and punishment for a person who visits or is found in a brothel for
the purpose of sexual exploitation. The other amendments include constitution of a Central
Authority as well as State Authorities for the purpose of effectively combating the offence of
the “Trafficking in Persons” at the central and state level. The Bill has been examined by the
Ministry related Parliamentary Committee and its recommendations are being considered.

Juvenile Justice (Care and Protection of Children) Act, 2000

It is a comprehensive legislation to provide justice and opportunities to children of India for

their growth and development. The Act is based upon the provisions of the Indian
Constitution and four broad rights of the UN Convention on the Rights of the Child including
right to Survival, Protection, Development and Participation. The Act came into force with
effect from 1.4.2001. Certain amendments have been effected in the Act recently. One of the
important amendments includes the definition of adoption. It has been felt that adoption
needs to be defined under the Act to make the provisions relating to it more meaningful.

Therefore, the definition of adoption is introduced through Section 2(aa) “Adoption” means
the process through which the adopted child is permanently separated from his/her biological
parents and becomes the legitimate child of his/her adoptive parents with all the rights,
privileges and responsibilities that are attached to the relationship. It has also been amended
that no juvenile in conflict with law can be placed under imprisonment for any term, which
may extend to imprisonment for life. The Act has, therefore, been made more child-friendly
to protect children from exploitation and violence as provided in the WFFC targets.7

Child Labour (Prohibition and Regulation) Act 1986

7
National Report on “World fit for children”- Ministry of Women and Child development 2013

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Elimination of Child Labour is an area of great concern to the Government. Article 24 &
39 of the Constitution provides for the protection of children from involvement in
economic activities and of avocations unsuited to their age. As per recent Constitutional
Amendment, right to education for children up to 14 years is now a Fundamental Right
under Article 21-A. considering the magnitude and the nature of the problem a gradual and
sequential approach has been adopted to withdraw and rehabilitate children beginning with
those working in hazardous occupations and processes. Consistent with the Constitutional
Provisions, the Child Labour (Prohibition and Regulation) Act 1986 was enacted seeking to
prohibit employment of children below 14 years in hazardous occupations and processes
and also regulating the working conditions of children in other employment. In the last five
years, the number of hazardous “Occupations” listed in the Schedule of the Act has
increased from 7 to 13 and “Processes” from 18 to 57. The Ministry of Labour and
Employment has issued a Notification recently under Child Labour (Prohibition and
Regulation) Act, 1986 for prohibiting employment of children as domestic servants and in
tea shops and dhabas, etc. with effect from 10th October, 2006. As per this notice
employment of children as domestic servants or servants in dhabas, restaurants, hotels,
motels, tea shops, resorts, spas or in any other recreational centers is prohibited. The
measure has been taken with a view to combating child labour in the country which is also
a goal of WFFC and to which Government of India is committed8.

ICDS (Integrated Child Development Scheme)

Integrated Child Development Scheme (ICDS), launched in 1975, is now the world’s largest
programme providing an integrated approach by converging basic services through
community based workers and helpers. The services provided at a childcare centre located
within the village include a package of services such as, supplementary nutrition,
immunization, health checkups, referral services, pre-school non-formal education and
nutrition and health education.9

8
National Report on “World fit for children”- Ministry of Women and Child development 2013
9
National Report on “World fit for children”- Ministry of Women and Child development 2013

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NCPCR (National Commission for protection of child rights)

The Government notified the Commissions for Protection of Child Rights Act 2005 in the
Gazette of India on 20th Jan., 2006. The Act envisages setting up a National Commission at
the National level and the State Commissions at the State level. The National Commission for
Protection of Child Rights has been set up in February 2007 by appointment of the
chairperson. The other members of the Commission are also being appointed. The
Commission has been set up for proper enforcement of children’s rights and effective
implementation of laws and programmes relating to children which would help in achieving
the targets of WFFC. The National Commission for Protection of Child Rights is a statutory
body. The Commission will have a Chairperson and six Members, including two women
members, a Member Secretary and other supporting staff. The members would be experts in
the fields of child health, education, child care and development, juvenile justice, children
with disabilities, elimination of child labour, child psychology or sociology and laws relating
to children. The Rules for implementation of the provisions of the Act in respect for National
Commission for Protection of Child Rights have also been notified.

The Commission visualizes a rights-based perspective flowing into National Policies and
Programmes, along with nuanced responses at the State, District and Block levels, taking care
of specificities and strengths of each region. In order to touch every child, it seeks a deeper
penetration to communities and households and expects that the ground experiences gathered
at the field are taken into consideration by all the authorities at the higher level. Thus the
Commission sees an indispensable role for the State, sound institution-building processes,
respect for decentralization at the local bodies and community level and larger societal
concern for children and their well-being.

Appraisal of the Functioning the NCPCR

The positive role of National Commission for the protection of child rights has been reported
many a time. For example, in 2007, it took initiatives to protect school children from harsh
10
corporal punishments. The commission wrote to all chief education secretaries
recommending that there should be no gradations while judging corporal punishment and that
even small acts should not be condoned as they may lead to gross violations. This initiative
of the commission actually aimed to ensure the enforcement of international

10
http://www. unicef.org/India/children_ 3221.htm visited on 10.03.2011.

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recommendations in this regard also11.
The involvement and assistance of Panchayati Raj Institution in child protection matters with
the commission has made commendable results. For example, in Meghalaya, 132 cases of
children missing were reported through the initiative of local Panchayats12. In Bangalore, the
child Rights Trust has been holding special gram sabhas with the support of the rural
development and Panchayats Raj department.13.

Another notable, instance is that the NCPCR had submitted its reports towards the
strategies for protection of child rights especially for abolition of child labour in
Eleventh plan14 .
Again in another situation, the expert NCPCR visited Amaravati district, in the light of the
information about the problems being face by tribal children in Ashram schools, Anganwadis,
Health care centers and Government schools, and issued directives to the district
administration for implementation15.

Right to Education

The 86th Constitutional Amendment Act, 2002 provides for free and compulsory education to
children in the age group of 6 to 14 years. Prior to the 86th Constitutional Amendment Act the
Indian Constitution had a mandated provision of free and compulsory education as a
Principle Directive of State Policy. Despite these provisions the country has not been able to
achieve the target of universal elementary education. Accordingly a comprehensive centrally
sponsored programme called Sarv Shiksha Abhiyan was launched in 2001. Subsequently, the
86th Constitutional Amendment Act 2002 inserted a new Article 21(8) which provides for
free and compulsory education to children of the age group of 6 to 14 years being a Right to
Education. The same Amendment Act provides for amendment of the Article 45 as Directive
Principle of the State Policy to provide provision for early childhood care and protection Bill
up to the age of 6 years. It is also made a Fundamental Duty of parents and guardians under
New Article 51(a) to provide opportunities for education to children between the age of 6 to
14 years.
11
Global Initiative to End All Corporal Punishment of children, UNICEF, 2001.
12
Report of the conference on Panchayat Raj Institutions and child rights organized by NCPCR and Ministry of
Panchayat Raj at New Delhi: 2007.
13
Report of the conference on Panchayat Raj Institutions and child rights organized by NCPCR and Ministry of
Panchayat Raj at New Delhi: 2007.
14
Report submitted to the Planning Commission, India, September 2007
15
Report of the expert team, National Commission for protection of child Rights, November – December 2008

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Landmark Judgements on Child Protection

1. Bandhua Mukti Morcha vs. Union of India 16 : 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.

 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.

2. C. Mehta vs. State of Tamil Nadu 17 : Employers of children in matchsticks and

crackers factory were punished with fine 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.
3. P. Unni Krishnan vs. State of Andhra Pradesh18: 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.’

16
AIR 1984 S.C. 802
17
AIR 1997 S.C. 699
18
AIR 1993 S.C. 2178

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Conclusion

Children, owing to their developing mind are vulnerable to the environment they are in. It is
of utmost importance that such environment is made suitable for their growth and
development, regardless of whether such child is in conflict with law or not and be given
adequate care and protection of the law. No nation can flourish if children of such nation
suffer from abuse or vulnerability; therefore India with the help of various international,
national and state mechanisms tries to secure the rights of the children as has been discussed
in above mechanisms. The NGO’s too are tirelessly working for the protection of children
pushed into child labour, children facing abuse in the community, children trafficked,
children affected by a calamity or emergency situations. NGO’s perform rescue work of
children facing various kinds of harms- abuse, neglect, exploitation, physical danger and
violence. Executing programs in India’s remotest parts, the NGO’s are driven by the premise
of ensuring happy and safe childhood for all children. Towards this goal, NGO’s partners
with civil society organisation, child-led initiatives, governments and other key stakeholders.

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