The Protection of Children from Sexual Offences Act, 2012

A New law… A new Hope..

The Protection of Children from Sexual Offences Act, 2012, has been passed in India, on 22^nd May, 2012. The Act,  has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.  The 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:

1.   Penetrative Sexual Assault (Section 3) –  Not less than seven years which may extend to imprisonment for life,  and fine (Section 4)

2.   Aggravated Penetrative Sexual Assault (Section 5) –  Not less than ten years which may extend to imprisonment   for life, and fine (Section 6)

3.   Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine  (Section 8 )

4.    Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)

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

6.   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 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. These include:

1.    Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector

2.   No child to be detained in the police station in the night for any reason.

3.   Police officer to not be in uniform while recording the statement of the child

4.   The statement of the child to be recorded as spoken by the child

5.   Assistance of an interpreter or translator or an expert as per the need of the child

6.    Assistance of special educator or any person familiar with the manner of communication  of the child in case child is disabled

7.    Medical examination of the child to be conducted in the presence of the parent of the child or any other person  in whom the child has trust or confidence.

8.     In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

9.      Frequent breaks for the child during trial

10.  Child not to be called repeatedly to testify

11.  No aggressive questioning or character assassination of the child

12.   In-camera trial of cases

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.

Child Poverty - Is India really growing ?

Denial of the right to food and ensuing malnutrition results in stunting, blindness and cognitive defects that lowers attention span and reduces the child’s capacity to learn. When compared with well-nourished peers undernourished children are less likely to enroll in school and even if they do they are more likely to perform poorly and be less economically productive in later life. A malnourished child is more likely to fall sick, may take longer to recover and has greater chances of dying. Pediatric malnutrition is responsible for 22.4% of India’s burden of diseases . With malnutrition so widespread (an estimated 47% of children in India are undernourished) it stays with children well into adulthood, resulting in an adult population with lower productivity and a resultant lesser economic growth for the country.

Denial of adequate education, similarly results in a very large workforce which has little skills or whose skills are not given adequate economic value. When compared to a farmer in developed countries, the Indian farmer is largely working as ill-paid labour on another’s field, because s/he is not educated enough to demand minimum wages, select a leader who will best represent her/his interests in government, and demand all the services due to him or her. In other words, an uneducated person is more likely to continue in the cycle of deprivation than an educated one. The effect on the country? An economy that has a large population but does not know how best to harness it in terms of a healthy and happy workforce. An indirect impact is a sharp growth in large scale conflict and unrest; two examples from India are the thousands of farmer suicides resulting from agrarian distress and the growth of armed resistance movements which costs the country millions in lives and resources.

A 1999 World Bank Report estimated that lost productivity, illness and death due to malnutrition was costing India at least US$ 10 – 28 billion or 3-9% of GDP annually.  Another study done in 2003 estimated that productivity losses due to protein energy malnutrition (PEM), iodine deficiency disorder (IDD) and iron deficiency anemia (IDA) because of lack of appropriate interventions would amount to USS$ 114 billion between 2003 and 2012[3]. Yet another study that looked at the productivity losses incurred by forgone wage-employment resulting from child malnutrition estimated the loss to be close to USS$ 2.3 billion or Rs 103 billion annually[4].

Unfortunately no real effort has been made to assess the cost of child poverty in India though children account for 43% of the population. Prof. Praveen Jha, of the Centre for Economic studies and Planning, Jawaharlal Nehru University, opines that social scientists are reluctant to conduct such studies “Because of the data gaps” which tend to make them slippery. He feels that India’s ruling elite don’t see such as issue as important because their own children do not face such issues. Interestingly, these issues have not caught the imagination of the lower castes that are rising in the political hierarchy either.

As long as poverty is considered an unavoidable residue of progress and not among the primary causes of India’s economic and social hardships, such lack of seriousness from all quarters will continue percolating to the country’s policymaking. And poverty alleviation continue to be charity driven, rather than driven from holistic development imperatives.

A glaring, current example is the Right to Education Act, 2009, which leaves out children in the 0-6 and 14-18 age groups, despite India being a signatory to the United Nations’ Child Rights Convention that clearly mandates all individuals below the age of 18 as children. How can a right leave out 50% of its mandated stakeholders?

Biraj Patnaik, Principal Adviser, Office of the Commissioners of the Supreme Court, feels that, “Much of that problem lies in the fact that the dominant classes are not convinced about the rights based approach and don’t believe that investments in these (social) areas is the way forward. They feel that if similar investments are made in SEZs it will result in jobs, economic growth and wealth that will trickle down to the masses.” What is not accepted is that benefits of a fulfilled childhood trickles up as well, in the form of healthy, educated adult citizens.

Given this attitude, it is no surprising that budget allocations for the child have remained paltry. Way back in the 40s the Bhore Committee had recommended that 2-3% of GDP should be earmarked for health but typically it has remained below 1%. Similarly in the 1960s the Kothari Commission had said that 6% of GDP should go to education but it has always remained low – last year it was 4.13%. The child protection budget for a country of more than 440 million children is a mere 0.34 percent of the total Union Budget, which is perhaps why India has become a child trafficking ‘hotspot’.

The Union Budget 2009-10 also kept to this tradition: it shies away from key allocations to education, health, and child protection. Despite being plugged as citizen-friendly, scratching the surface of the budget throws up three key shortfalls:

Public expenditure on schooling falls short for the number of children entering school-going age every year – total allocations from the Central government for elementary education were raised by only 15.5 per cent to 25066.70 crores.

India’s public health system is crumbling. In a ranking of 175 countries’ public health spending in 2007-08, the World Health Organisation (WHO) ranked India a lowly 171.

In short, the actual increase in expenditure on children was just Rs 5100 crores: approximate 14% increase that hardly covers the number of children added to the population each year (see Table 1- Outlays for Child-Specific schemes as a proportion of the central budget)

What has also been seen is that actual expenditure often falls far short of the allocations that have been made because of procedural delays and slackness in implementation? More and more of us who actually witness the workings of the government systems at the communities, feel that increasing allocations in the social sector are not enough. We need to put our energies into using these funds well, to make sure children’s lives are changed for the better.

Earlier in February, director of the Aeronautical Development Agency (ADA), P.S. Subramanya, said he was confident the government would sanction by next year the Rs. 8000-12000 crores he needs to develop stealth combat aircraft it plans to build. That is almost one third of India’s education budget. Unlike Mr. Subramanya, I cannot profess any such confidence for allocations in a sector far, far more critical to India’s well being, its children’s education. For example, India is in talks with the US to buy ten C-17 transport aircraft for the Indian Air Force, estimated to be worth $5.8 billion, or 26,100 crores: almost equal to the cost of educating all of India’s 6-14 year olds.

Ignoring childhood poverty will affect the nation’s economic standing and it’s not insubstantial growth ambitions as well. Whether you are a government looking at fast tracking industrial growth, a business house hoping for better profit margins or a salaried professional working towards better lifestyle, the large numbers of Indian children living and growing up in extreme poverty and destitution can and will affect life and business. India’s growth story is not immune from the impact of its large scale poverty. It is time to push the choice towards our people, our children. We at CRY are asking for 10% of India’s GDP to be invested in children’s education and health. For longer term growth, this is the barest minimum.

Status of Orphans/ Street Children in India

• India is the worlds largest democracy with a population of over a billion-400 million of which are children
• India is known for its multi-ethnic, multi-lingual and multi-religious background. It has 15 official languages and 36 states and union territories.
• There are approximately 673 million Hindus, 95 million Muslims,19 million Christians, 16 million Sikhs, 6 million Buddhists and 3 million Jainsin India.
• Approximately 26% of the Indian population lives below the poverty line and 72 % live in rural areas.
• Even thought the percentage of the Indian population infected with HIV/AIDS is 0.9%, (5) it has the second largest number of people infected with HIV/AIDS in the world, the first being South Africa.
• Despite the many recorded gains in the recent past, issues such as gender inequity, poverty, illiteracy and the lack of basic infrastructure play an important role in hindering HIV/ AIDS prevention and treatment programs in India. The impact of the AIDS crisis has not begun to fully emerge in India and AIDS related orphaning has not been documented.
• Yet, it is estimated that India has the largest number of AIDS orphans of any country and this number is expected to double in the next five years.
• Out of the 55,764 identified AIDS cases in India 2,112 are children.
• It is estimated that 14% of the 4.2 million HIV/AIDS cases are children below the age of 14
• A study conducted by the ILO found that children of infected parents are heavily discriminated-35% were denied basic amenities and 17% were forced to take up petty jobs to augment their income.
• Child labor in India is a complex problem and is rooted in poverty.
• Census 1991 data suggests that there are 11.28 million working children in India.
• Over 85% of this child labor is in the country’s rural areas and this number has risen in the past decade.
• Conservative estimates state that around 300, 000 children in India are engaged in commercial sex. Child prostitution is socially acceptable in some sections of Indian society through the practice of Devadasi. Young girls from socially disadvantaged communities are given to the 'gods' and they become a religious prostitute. Devadasi is banned by the Prohibition of Dedication Act of 1982. This system is prevalent in Andhra Pradesh, Karnataka,Tamil Nadu,Kerala, Maharashtra,Orissa, Uttar Pradesh and Assam.
• More than 50 % of the devadasis become prostitutes: of which nearly 40 per cent join the sex trade in urban brothels and the rest are involved in prostitution in their respective villages. According to the National Commission on Women an estimated 250,000 women have been dedicated as Devadasis in Maharashtra-Karnataka border. A study conducted in 1993 reported that 9% of the devadasis are HIV positive in Belgaum district in Karnataka .
• Street children are those for whom the street more than their family has become their real home, a situation in which there is no protection, supervision, or direction from responsible adults. Human Rights Watch estimates that approximately 18 million children live or work on the streets of India. Majority of these children are involved in crime, prostitution, gang related violence and drug trafficking.

HELP THEM... TO EARN

 The bane of modern India

Child begging, which has been in existence in India for years, never got the attention due to it . This is the reason why the problem has aggravated to such an extent that it calls for a collective effort of society today.

Poverty syndrome: Various facets

JUST RECALL THE kid you snubbed last time at a traffic signal after he or she knocked at your car windowpane. Have you ever given a thought that what compels such children to beg even in the extreme weather conditions?

We watch them daily raising their little hands before strangers and most of the time they are screamed at. Isn’t it possible that these little beggars are just another group of harassed victims? Or worse, the ugly face of a bonded life, blatantly existing in metros.

Everyday we see a number of children begging on the roads and we just turn our backs on them by saying, "What can we do?"

More than our money, these little beggars expect compassion towards their tragic lives so that they could be rescued from this vicious circle of poverty and pain. They are helpless and seek public support.

A beggar’s life is far more tragic than we can imagine. Standing at traffic signals, begging for that elusive rupee or two in exchange for a flower or a balloon can be anything but personal choice.

Most begging children don’t actually have a choice. They just have to work irrespective of fever or any other disease. Teenager girl beggars suffer the worst. Be it a lorry-driver, auto-rickshaw driver or the notorious traffic policeman, all look at them with bad intention. And, the poor helpless girls cannot do much about it.

Informing more about this social evil, Rakesh Seneger, National Secretary, Bachpan Bachao Andolan, said, “The child beggars are part of a forced beggary racket. They are trained how to carry crutches to appear disabled on road and later paid Rs 10 or 20 as commission out of their daily earnings."


There are gang leaders that include females also, who keep a check on the beggars so that they could not steal the money. Or if children are found doing so they are beaten black and blue for that.

For some, the bonded beggary is the cost they pay after running away from their native land. But for others, it is the last choice to avoid a threat to be made a prostitute or served before any pedophile.

There are occasional beggars, who are in the daily wage business and take to begging when the going gets tough. Sociologists say that the problem of begging exists due to the absence of organized system of charity.

"Begging is also seen as a respectable activity in India. In all, other societies, charity is seen as respectable. In order to have charity, you have to have the people who are to be benefited by charity. Unfortunately, in India, we could not evolve a mechanism for organised charity," said Purshotam Aggarwal, a sociologist.

...and yet, GOD feeds them.....

The reality…

The term 'street children' is hotly debated. Some say it is negative - that it labels and stigmatises children. Others say it gives them an identity and a sense of belonging. It can include a very wide range of children who: are homeless; work on the streets but sleep at home; either do or do not have family contact; work in open-air markets; live on the streets with their families; live in day or night shelters; spend a lot of time in institutions (e.g. prison). The term 'street children' is used because it is short and widely understood. However, we must acknowledge the problems and wherever possible we should ask the children what they think themselves. In reality, street children defy such convenient generalisations because each child is unique.

The Number

Nobody knows. Street children are not easy to count because: they move around a lot, within and between cities; they are often excluded from 'statistic-friendly' infrastructures (schools, households etc.); definitions of 'street children' are vague and differing. Numbers of 'street children' have often been deliberately exaggerated and misquoted in order to sensationalise and victimise these children. Street children have the right to be accurately represented. City-level surveys conducted by local organizations and supported by a clear definition are more reliable. In many countries, there is anecdotal evidence that numbers are increasing, due to uncontrolled urbanisation (linked to poverty), conflict and children being orphaned by AIDS. Most statistics are just estimates e.g. Kenya: 250,000; Ethiopia: 150,000; Zimbabwe: 12,000; Bangladesh: 445,226; Nepal: 30,000; India: 11 million (these are based on broad definitions of 'street children'). Regardless of the statistics, even one child on the streets is too many if their rights are being violated.

The Gender -Statistics

Generally there are fewer girls than boys actually living on the streets (studies indicate between 3% and 30% depending on the country). This is for several reasons. In many cultures, there is much greater pressure for girls to stay at home than boys. Research shows that girls will put up with abuse at home for longer than boys but that once girls make the decision to leave home, the rupture is more permanent than for boys. Girls are also less visible on the streets as they are often forced or lured into brothels. Even though there are fewer street-living girls than boys, they are extremely vulnerable to human rights abuses both on the street and when they are arrested. However, it is important to note that street boys are also at risk of sexual abuse and exploitation as well as girls.

Families

Relatively few street children are actually orphans (although these numbers are increasing in some countries due to AIDS). The majority of street children are still in contact with their families and/or extended families. Many of them work on the streets in order to contribute to their family's income. Those who run away often do so because of physical, psychological and/or sexual violence or abuse at home. Family breakdown is also common in the case of re-marriage and problems with step-parents. Importantly, many projects try to reunify street children with their families. However, this is a complex and frustrating task that requires much specialised counselling to address the root causes why the child ran away in the first place. Unfortunately, in many cases, reunification with the family fails, or is not in the best interests of the child. In these cases alternatives such as fostering, group homes and residential centres are needed. Street children are rarely alone, even if they have no family contact.

Protection

Ironically, street children are often at greatest risk of violence from those that are responsible to protect them - the police and other authorities. Police often beat, harass, sexually assault and even torture street children. They may beat children for their money or demand payment for protection, to avoid false charges, or for release from custody. They may seek out girls to demand sex. For many street children, assaults and thefts by the police are a routine part of their lives. Some are even killed by police. Very rarely are those responsible brought to justice.

And Finally….

Many images and stories portray street children either as helpless victims, dangerous criminals or heroic survivors. The reality is usually somewhere in between. They show incredible resiliency and initiative in the face of desperate circumstances. They have to be resourceful and strong in order to survive. But some do not survive. Others can only do so by breaking the law. We should respect their individual stories and characteristics. Each child is unique.

HELP THEM .... TO SETTLE

The movie “Slumdog Millionaire” made India proud at the Oscars and has also put the slums of the country before the world’s audience. Does government have a policy to deal with the actual issue of ever-increasing slums and the concerned problems?Even as the ‘movie on the slums’ made a huge success at the Oscars. It was another day of hard scribble existence for the people in slums, living with a hope that the movie would stir government into action.

As per the 2001 Census the slum population constitutes four percent of the total population of the country. Total Slum Population returned as per provisional results of Census of India 2001 was 40,605,418, comprising of 22.76% of the total urban population of the cities/towns reporting slums. This means that almost quarter of Indian cities live in slums. And sadly 5,531,062 (5 million) of this population are young children (0-6 age group).

The numbers for the richest state in India, Maharashtra are even worse. Almost 32% of the state’s population live in slums. And 5 million (5,823,510 to be precise) are in the financial capital of India, Mumbai. About 49% of Mumbai’s population live in slums
And these figures are ever growing. And hopes for a concrete shelter for these slum-dwellers, depends on the Government.

One of the problems associated with urban growth is the increase in the proportions of slums especially in metros, as people migrate from rural poorer sections in search of work. Subsequently, living in these congested and degraded spaces within cities. The rights of slum-dwellers to shelter, basic amenities have been marginally addressed till date.

HELP THEM .... TO BE HEALTHY

As in other developing nations, undernourishment is a burden on considerable percentage of population, the most vulnerable being the youngest of this country ¹ . India accounts for about 40% of undernourished children in the world, which contribute to high morbidity and mortality in the country ² . Most of these undernourished children are underprivileged and many reside in slums. Slums are those areas which are characterized by insecure residual status, poor structural quality of house, overcrowding, inadequate access to safe water and sanitation ³ . Therefore, slum dwellers are more vulnerable to infections which results in deterioration of their nutritional status. Hitherto, data are lacking on undernutrition ⁴ , as assessed by WHO recommended Z-score method, of urban slum children of West Bengal. Thus, the present study was undertaken to ascertain the level of underweight, stunting and wasting among urban slum children of Midnapore town in West Bengal, India.

This cross-sectional study was conducted in a slum area in Midnapore town of West Bengal, India, during November - December, 2005. Midnapore is located approximately 130 kms from Kolkata, the provincial capital of West Bengal State. All information was collected by a trained investigator (SD). Parents were informed about the objectives of the study and their written consent was obtained. The study protocol was approved by the institutional ethical committee. Information on age, sex, weight and height were recorded with the help of questionnaire. Children's age were recorded as reported by mothers and verified further with other senior members of the household. The estimated number of study subjects was calculated to be 96 by the formula: n = (z ² x p x q)/d ² . Where, z =1.96, p is the prevalence of undernutrition (50%), q = 1 - p and d is the desire precession (10%). Therefore, a total of 113 children were selected following random sampling method.

Weight and height measurements were made following standard technique  using weighing scale and anthropometer rod to the precession of 0.5 kg and 0.1cm, respectively. Underweight, stunting and wasting were defined as weight-for-age (WAZ), height-for-age (HAZ) and weight-for-height (WHZ) Z-score below -2 standard deviation from the National Center for Health Statistics (NCHS) reference populations ⁶ using EPI Info version 6.0 Software. The WHO  classification was followed for assessing severity of malnutrition by percentage prevalence ranges of these three indicators among children.

The data from the present study comprised of 113 children aged 3-6 years, of these 56 were boys and 57 were girls. Table 1 shows the age and sex distribution of the subjects. It also presents the means (standard deviations) of their anthropometric characteristics. It was observed that there was consistent increasing age trend in mean weight and height in both sexes. Girls were heavier and taller than boys at all ages.

The present study reported very high rates of underweight, stunting and wasting among the slum children. According to the WHO  classification, the severity of undernutrition was very high indicating a critical situation. These results implied that there children were under critical nutritional stress. Most studies worldwide  have also reported high to very high rates of undernutrition among slum children. The results of the present study are in concordance with these findings.

In general, undernutrition was more prevalent   among slum children in South Asia (Bangladesh and India) as compared to those of Africa (Nairobi and Mushin) and South East Asia (Bangkok). These observations are in also agreement with the earlier well documented report ⁷ that the level of undernutrition among children (not necessarily slum dwelling) in South Asia (Bangladesh, India, and other adjoining countries) are among the highest in the world. A noteworthy finding was that compared to other studies, the prevalence of wasting (32.7%) among the slum children of Midnapore was the highest.

It is well established that undernutrition continues to be a primary cause of ill-health and premature mortality among children in developing countries  and chronic undernutrition in childhood is linked with slower cognitive development and serious health impairments of later in life that reduce the quality of people  . Therefore, immediate appropriate nutritional intervention programmes are required to be implemented among slum children of Midnapore. Since undernutrition among children is prevalent in almost all the states in India  , similar studies should be conducted among slum-dwelling children of various ethnicity residing in different towns of India to determine whether there are any ethnic and regional variations in the prevalence of undernutrition. These studies should help in the formulation of health intervention and promotion programmes to reduce the prevalence of undernutrition. Lastly, we suggest that future investigations of nutritional status of slum-dwelling children also incorporate information on morbidity and mortality to better understand the relationship of undernutrition and health outcome.