Child Abuse is the physical, sexual or emotional neglect or maltreatment of a child.1 To look at the child abuse with a legal perspective, one needs to go back to the history of child rights. In earlier times there were no rights protecting the children. A child was considered not to have mental element of its own and a guardian had all the power on a child to an extent that he/she could even take decisions regarding the death or life of a child. It was for the first time in 19th century that it was realized that children ought to have some rights because a child is one of the most vulnerable members of society. It was in the 19th century that Europe realized that that children can’t be treated in the same way as that of adults and laws were passed governing child labor. It was realized that education had to be made compulsory and obligatory for young children.
It was in 1919 , that League of Nations created a committee for the protection of children. And five years after this , 20th century saw “Declaration of Geneva” being adopted by League of Nations.
This was inspired by the work of Janusz Korczak , “father of children’s rights”.
“Declaration of Geneva” accepted the duties towards children irrespective of race, nationality or creed.
The duties were wide ranging from providing means requisite for normal development, food, nursing, help, shelter, priority at times of distress to consciousness that a child’s talents must be devoted to the service of men.
But the point of focus in “Declaration of Geneva” regarding this research article remains the duty that child “must be protected against every form of exploitation.
Declaration provided for protection from exploitation. Though League of Nations and “Declaration of Geneva” could not stop the gross human rights violation by Nazis during second World War . Holocaust stories published later showed the world how even the children were not spared .
And not only children of European Jewish community had to suffer , Polish children had to be migrated to safer places in order to save them
Finally when world war two came to an end in 1945 and United Nations, i.e. the child of League of Nations , was created, World saw Universal Declaration of Human Rights , 1948 which provided that motherhood and childhood are entitled to special care and assistance.
But a full fledged declaration on child rights came in 1959 in form of “Declaration of the Rights of Child”. It recognized child as a subject of rights.
1979 was observed as International Year of the Child.
On November 20, 1989 , the Convention on the Rights of the Child (CRC) was unanimously adopted by United Nations General Assembly2 which later on became the most widely ratified treaty in the World with United States of America being the only United Nations member which has not ratified it.
Now coming to the Indian perspective , we have legislations such as
Juvenile Justice (Care and Protection of Children) Act, 2015 which caters children that need rehabilitation , care and protection. It derives its powers under clause (3) of Article 15 which states protective discrimination and empowers state to make special provisions for women and children and clause (e) and (f) of article 39 which directs state to take care that tender age of children must not be abused and children shall be given opportunities to develop in a healthy manner and in conditions of freedom and dignity and that they shall be protected against exploitation and moral and material abandonment. It also derives its powers from article 45 of Indian constitution which directs that states shall endeavor to provide within 10 years from the commencement of constitution for free and compulsory education for all children until they complete the age of 14 years. Even the 86th amendment(2002) was one of the fundamental steps towards “right to education”; which is a recognition of children’s right to study. Article 47 is also source of power to Juvenile Justice( Care and Protection of Children Act,2015).
The Protection of Children form Sexual Offences Act(POCSO),2012 is one of the Indian Government most progressive laws. It qualifies penetrative sexual assault on children under the age of 12 as aggravated penetrative sexual assault. The punishment for which was recently made more stringent by providing death penalty for aggravated sexual assault on children and fines and imprisonment to curb child pornography. This Act is widely appreciated for its gender neutral approach
The Criminal Law (Amendment) Act 2013, introduced several new sexual offences under the India Penal Act 3
In the year 2000, Supreme Court introduced a law to ban corporal punishment4 but corporal punishment still remains a brutal reality throughout the country and the very sad part that came out during my visits in villages that people don’t even know about the fact and the practice goes on with sometimes parents asking teacher to give corporal punishment to their children. Many other research paper suggest that corporal punishment can lead to increased aggression, anti-social behavior, physical behavior, physical injury and mental health problems. When it comes to POCSO(The Protection of Children form Sexual Offences Act) , during my visit to serval police stations in Mathura, in western Uttar Pradesh, police stated that zero cases had been reported under POCSO act in past few years. On talking to the people, I realized that cases were not being reported due to several causes that included family reputation, which also emerged as one of the biggest causes to restrain people from reporting
In 2007, “A Study on Child Abuse: India 2007” was conducted by Ministry of Women
and Child Development (GOI) that revealed shocking figures concerning physical, sexual and emotional abuse
Two out every 3 children, in form or other had been subjected to physical abuse
Out of 69 percent physically abused children, 54.68 percent came out to be boys
More than 50 percent children were constantly being subjected to one or other form of physical abuse
Among children physically abused within families,88.6 percent were physically abused by parents
Andhra Pradesh, Assam, Bihar and Delhi have reported higher cases of abuse in every form.
50.2 percent children were working all the 7 days of a week
More than 50 percent children(53.22 percent to be precise) had faced one or more form of sexual abuse.
Andhra Pradesh ,Assam, Bihar and Delhi reported the highest percentage of Sexual Abuse among both genders
Severe Sexual Abuse was Reported by 21.9 percent of child respondents.5
THE GROUND ZERO STORY OF CHILD ABUSE LAWS
During my study review week, I went to several police station to ask whether there had been any case reported against child abuse. The common answer that I got from every police station in Mathura( a small town in western UP) was ‘no”. No cases against child abuse had been reported. So I decided to go out on my own and work to figure out reality
I took sessions in private and government schools with children in the age slab of 8 to 17 years, to which I got permission on the condition that school will not be named. Going in the schools and taking sessions with children and I realized that they were nowhere aware about the concept of Child Abuse and sometimes when a student became disturbing during the sessions , I witnessed male teachers using corporal punishment. In all of my sessions hardly any child had heard about the term POCSO and only one 8th standard girl could tell me the full form of POCSO that is Protection of Children From Sexual Offences but again to my disappointment she did not know about the Act and recent amendment made regarding death penalty for aggravated penetrative sexual assault.
I collected data from them my means of hand made forms that had to be filled in privacy. During which I also experienced a child filling the form of emotional abuse and then coming to me to ask for form that she had previously submitted and then turning the check sign in emotional abuse column to a cross sign; negating her entry; and returning the now to be considered empty form.
I could sense the tension in the atmosphere while explaining child abuse but when it came down to data collection, the response did not turn out in the way I hoped it would.
My sample size was in the age group of 8 to 17 (as I picked few children to hold a session with all the three schools) out of which only 2 children accepted to be sexually abused. Other responses were generally about emotional and physical abuse. Overall 17.7% children agreed to be subjected to any form of abuse. In the age slab of 8-12; 18.4% children accepted to have undergone emotional abuse and 9.2% children accepted to have been subjected to physical abuse (apart from corporal punishment they received by their teachers). In the age slab of 13- 17, emotional abuse cases in sampling came out to be 14% and 9.1% were that of physical abuse.
WHAT CAN BE MADE OUT ?
During my field work I realized that what is lacking in such places is legal awareness. A proper legal literacy is not there. Children don’t want to open up because they hesitate and that’s because our social structure is such that many cases are buried down inside the four walls of a house in order to protect family reputation which is further believed to be spoiled by involving police and letting your child be enquired.
As per NCRB 2016 report, the cases in which abuses were grandfathers, fathers, brothers and close family members, in India, stand at 4.4%. And in such cases, family prefers not to let other people know. This leads to underreporting and a number of cases never come out.
In 94.8% cases, according to NCRB, children were sexually assaulted by someone known to them. Out of which in 10% cases, culprits were family members or relatives. In 2015, 14913 cases were registered under the Protection of Children Under Sexual Offences ( POCSO ) Act. 8800 cases among them were about rape on a child. In 25% of cases registered, the culprits were co-workers, employees and 35.8% of such crimes were committed by neighbours.
These assaults and crimes on a child who is in a developmental stage leave a very bad effect psychologically. Some of them turn out to be crimina