By Gokul Abimanyu. O.R-
“There can be no keener revelation of a society’s soul than the way in which it treats its children.” —– Nelson Mandela, Former President of South Africa.
Children are the most important wealth of any nation who should be cherished and protected from all the social evils to build a nation of higher social values. Even in this 21st century where the concept of human rights and other concepts related to the welfare of children has evolved, Children are subjected to abuses and violence. These kinds of violence against children should be prevented at any cost. In this article, I will be discussing important laws and Constitutional provisions that have been enacted for enhancing the protection of children in India.
Who is a child?
Convention on the Rights of the Child (CRC) defines a child. Article 1 of CRC states that “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”[1].
Juvenile Justice (Care and Protection of Children) Act of 2015 also defines a child as “a person who has not completed eighteen years of age;”[2]
The Protection of Children from Sexual Offences (POCSO) Act, 2012 defines a child as “any person below the age of eighteen years”[3].
Child Protection Policies in Indian Constitution:
As per Article 15(3) of the Indian Constitution, “the state has the power to make special provisions to women and the children”[4].
Article 24 of the Indian Constitution prohibits employing children in factories or mines. “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”[5]
In Part Ⅳ of the Indian Constitution, it is imperative for the state to protect children from all sorts of abuses and to prevent children who were in financial necessity from entering into any form of occupation that is unsuitable to their age. The State shall direct its policy towards securing 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 avocations unsuited to their age or strength”[6].
In the 42nd Amendment to the Indian Constitution, a new provision for the protection of children has been inserted into the Directive Principles of the State Policy. The State shall 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”[7].
Indian Constitution also has a provision for early childhood care and education to children below the age of six years. “The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years”[8].
It is one of the fundamental duties of a citizen “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”[9].
Laws for protection of children in India:
There is a plethora of legislation enacted by the Parliament to protect the children from violence. The most commonly known laws for the protection of Children from offenses are The Beedi and Cigar Workers (Condition of Employment Act, 1966), The Child Labour (Regulation & Prohibition) Act, 1986, Right of Children to Free and Compulsory Education Act, 2009, The Juvenile Justice (Care And Protection Of Children) Act, 2015 (JJ Act), Protection of Children from Sexual Offences (POCSO) Act, 2012. Among these laws, the two important laws are discussed as follows:
- Protection of Children from Sexual Offences (POCSO) Act, 2012:
Purpose of this Act:
To deal with child-related sexual abuses and violence, the Government of India has enacted POCSO or Protection of Children from Sexual Offences Act in the year 2012. POCSO is considered to be the first comprehensive law to deal with sexual offenses related to children. The loopholes in the Indian Penal Code have been covered by the POCSO Act of 2012. This Act is gender-neutral because it takes cognizance of sexual offenses committed against both male and female children under the age of 18 years. This act has been enacted to address a wide range of sexual offenses including partial or complete penetration, non-penetrative sexual assault, using the child for pornography, and other purposes.
Objectives of the Act:
It has been enacted with the following objectives:
- To safeguard children from offenses like
- Sexual assault;
- Pornography;
- Sexual harassment.
- To establish Special Courts for speedy trial of such offenses.
Definition of a child under this Act:
The Protection of Children from Sexual Offences (POCSO) Act, 2012 defines a child as “any person below the age of eighteen years”[10].
Salient features:
- Under this Act, a person who has the knowledge of the sexual offense must report the sexual offense that is likely to happen or has happened already.“Any person(including the child), who has apprehension that an offense under this Act is likely to be committed or has knowledge that such an offense has been committed, he shall provide such information to,— (a) the Special Juvenile Police Unit; or (b) the local police.”[11]. Any person who has failed to report the sexual offense shall be punished with either description which may extend to six months or with fine or with both.[12]
- This Act also provides for punishment against the false complaint or false information. “Any person, who makes a false complaint or provides false information against any person, to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both”[13]
- Media is prohibited from disclosing the personal information of a child including the name of the child who has been subjected to the sexual offense. Whoever discloses such information shall be punished with imprisonment which shall not be less than six months but which may extend to one year or with fine or with both[14]. “No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighborhood or any other particulars which may lead to the disclosure of the identity of the child”[15]
Punishment for various offenses under this Act:
| Offense | Punishment |
| Penetrative sexual assault | Imprisonment for a term which not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine[16] |
| Penetrative sexual assault on a child below sixteen years of age | Imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and shall also be liable to fine.[17] |
| Aggravated penetrative sexual assault | Rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and shall also be liable to fine, or with death[18] |
| Sexual assault. | Imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine[19]. |
| Aggravated Sexual Assault | Imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine[20]. |
| Sexual harassment | Imprisonment of either description for a term which may extend to three years and shall also be liable to fine[21]. |
| Using a child for pornographic purposes | imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine[22]. |
| Storage of pornographic material involving child | Stores or possesses pornographic material in any form involving a child to share or transmit child pornography– shall be liable to fine, not less than five thousand rupees and in the event of a second or subsequent offense, with fine which shall not be less than ten thousand rupees[23].Stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing – shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both[24].Stores or possesses pornographic material in any form involving a child for commercial purpose – shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both[25] |
| Punishment for abetment. | Shall be punished with the punishment provided for that offense[26]. |
| Punishment for attempt to commit an offense. | Imprisonment of any description provided for the offense, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offense or with fine or with both[27]. |
- The Juvenile Justice (Care And Protection Of Children) Act, 2015 (JJ Act):
Purpose of the Act:
The Juvenile Justice (Care And Protection Of Children) Act, 2000 (JJ Act) has been enacted to amend and consolidate the law relating to children or juveniles in conflict with the law and those children in need of proper care and protection by adopting an approach that is child-friendly in the adjudication of disposition of matters in the best interest of children. With the changing nature of society, there has been a drastic change in the crimes committed by juveniles. Juvenile crimes extended to serious crimes like murder and rape. Hence the Parliament came up with a bill in 2014 which has ultimately become law in 2015. At present, juvenile delinquency has been dealt with by a law titled ‘Juvenile Justice (Care and Protection of Children) Act, 2015(hereinafter the Act of 2015 or the JJ Act, 2015’.
Definition of a child under this Act:
Juvenile Justice (Care and Protection of Children) Act of 2015 defines a child as “a person who has not completed eighteen years of age;”[28]
Punishment for various offenses under this Act:
| Offense | Punishment |
| Recruitment and use of children by any non-state or any other organization. | Shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine of five lakh rupees[29]. |
| Recruitment and use of children by any adult or an adult group | Shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine of five lakh rupees[30]. |
| Sale and procurement of children for any purpose. | Shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to a fine of one lakh rupees[31] |
| Subjecting a child to Corporal Punishment | Shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offense, shall be liable for imprisonment which may extend to three months or fine or with both[32]. |
| Kidnapping and abduction of a child. | The provisions of sections 359 to 369 of the Indian Penal Code, shall apply to a child or a minor who is under the age of eighteen years[33] |
| Offenses committed on disabled children. | Shall be liable to twice the penalty provided for such offense[34]. |
| Cruelty to a child. | Imprisonment for a term which may extend to three years or with a fine of one lakh rupees or with both[35] |
| Employment of a child for begging. | Imprisonment for a term which may extend to five years and shall also be liable to a fine of one lakh rupees[36] |
| Giving intoxicating liquor or narcotic drug or psychotropic substance to a child. | Rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees[37]. |
| Using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance | Rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine up to one lakh rupees[38] |
| Adoption without following prescribed procedures | Punishable with imprisonment of either description for a term which may extend up to three years, or with fine of one lakh rupees, or with both[39]: |
| The exploitation of a child employee. | Rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees[40]. |
Other initiatives:
The Government of India has taken various other initiatives to protect children from all forms of abuse. Some of the initiatives of the Government of India are
- The child helpline 1098 service in partnership with an Integrated Program for street children,
- Ratification of various International treaties such as the United Nations Convention on the rights of the child (UNCRC),
- The National Policy for Children, 1974,
- Study on Child Abuse 2007,
- The National Plan of Action, 2005.
- The National Commission for Protection of Child Rights, 2007
- Giving s importance for child protection in every Five-year plan.
International Treaties on Child rights:
The Government of India has been a signatory to the following International Treaties related to the association of Children with non-state groups.
- Convention on the Rights of the Child, 1989,
- 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,2000 (OPAC),
- Children Convention on the Rights of the Child, 1989 (CRC) and
- International Labour Organization Worst Forms of Child Labour Convention, 1999 (ILO182).
Conclusion:
Though there are various laws enacted primarily to protect the children who were the buds of the nation, violence against them takes place every day. To curb this offense from its root it is imperative to provide sexual education to children, parents shall be taught on the manner of developing the dialogue with their children, create Local Committees for protection of Children, launch awareness campaigns for the society at large, prioritize dialogue with children and it is not only the duty of the government to fight the battle of child violence but also the duty of every citizen of this nation.
[1] Art. 1, the Convention on the Rights of the Child.
[2] S. 2(12), Juvenile Justice Act, 2015.
[3] S. 1(d), The Protection of Children from Sexual Offences Act, 2012.
[4] Art. 15(3), the Constitution of India.
[5] Art. 24, the Constitution of India.
[6] Art. 39(e), the Constitution of India.
[7] Art. 39(f), the Constitution of India.
[8] Art. 45, the Constitution of India.
[9] Art. 51A, the Constitution of India.
[10] S. 1(d), The Protection of Children from Sexual Offences Act, 2012.
[11] S. 19, The Protection of Children from Sexual Offences Act, 2012.
[12] S. 21(1), The Protection of Children from Sexual Offences Act, 2012.
[13] S. 22, The Protection of Children from Sexual Offences Act, 2012.
[14] S. 23(4), The Protection of Children from Sexual Offences Act, 2012.
[15] S. 23(2), The Protection of Children from Sexual Offences Act, 2012.
[16] S. 4(1), The Protection of Children from Sexual Offences Act, 2012.
[17] S. 4(2), The Protection of Children from Sexual Offences Act, 2012.
[18] S. 6, The Protection of Children from Sexual Offences Act, 2012.
[19] S. 8, The Protection of Children from Sexual Offences Act, 2012.
[20] S. 10, The Protection of Children from Sexual Offences Act, 2012.
[21] S. 12, The Protection of Children from Sexual Offences Act, 2012.
[22] S. 14, The Protection of Children from Sexual Offences Act, 2012.
[23] S. 15(1), The Protection of Children from Sexual Offences Act, 2012.
[24] S. 15(2), The Protection of Children from Sexual Offences Act, 2012.
[25] S. 15(3), The Protection of Children from Sexual Offences Act, 2012.
[26] S. 17, The Protection of Children from Sexual Offences Act, 2012.
[27] S. 18, The Protection of Children from Sexual Offences Act, 2012.
[28] S. 2(12), Juvenile Justice Act, 2015.
[29] S. 83(1), Juvenile Justice Act, 2015.
[30] S. 83(2), Juvenile Justice Act, 2015.
[31] S. 81, Juvenile Justice Act, 2015.
[32] S. 82, Juvenile Justice Act, 2015.
[33] S. 84, Juvenile Justice Act, 2015.
[34] S. 85, Juvenile Justice Act, 2015.
[35] S. 75, Juvenile Justice Act, 2015.
[36] S. 76, Juvenile Justice Act, 2015.
[37] S. 77, Juvenile Justice Act, 2015.
[38] S. 78, Juvenile Justice Act, 2015.
[39] S. 80, Juvenile Justice Act, 2015.
[40] S. 79, Juvenile Justice Act, 2015.