This Article is written by Arkadyuti Sarkar, a student who is pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta. This article discusses offences against Children.
Table of Contents
Introduction
Since time immemorial, due to their inherent natural weakness, children have been the victims of criminal offences alongside women. The crimes which are committed against children are not restricted to any specific gender or age. This is usually because of their incapability to appreciate the nature of the offences committed against them and their consequences, thereby making them a soft target of the offender. In other words, due to the inherent innocence and maturity which are usually directly related to a children’s age make them an offender’s favourite victim.
Now we will proceed further and learn about various juvenile offences, their impact upon the children’s mind, legislations already existing for combatting them, and the possible measures for preventing and dealing with these juvenile offences.
What are Offences against children?
Before learning about various forms of offences against juveniles, we must first acknowledge ourselves with the concept of offences against juveniles.
Such young persons, for the purposes of legal consideration, ranging from a newly born baby to a person below the age of 18 years. The child, therefore, for the sake of legal protection and consideration is deemed any person of any gender aged between 0 to 18 years of age.
Any offence or offences, committed against a child or children is/are regarded as offences against children or juveniles.
offences for being considered as offences against juveniles need not be criminal activities like kidnapping, murder, rape, or coerced beggary; but also verbal, physical, or mental abuse inflicted upon children.
Offences against Children
Now, let us acknowledge and discuss various types of offences, committed against the children in society:
Cruelty
So what constitutes a cruel act? is it merely torturing someone physically?
Well, cruelty is any act or omission which inflicts mental or physical harm upon an individual, irrespective of age, gender, mental capacity, etc.
Cruelty to a child can include anything from beating him or her, or just creating mental pressure by threatening with physical harm. (Section 351 of IPC Talks about the assault)
In Indian society, people have the least idea of child cruelty. Even yelling at a child for scaring him or her can amount to cruelty. People in our society feel that ‘spare the rod shall spoil a child’. In simpler words, our society has the impression that unless a guardian/parent behaves like a martinet with a child, such child shall never be capable of being disciplined in life. Apart from parents, educational institutions also have the impression that physical punishment for mistakes is the sole way of inducing discipline within a child. Therefore, cruelty towards children has become an accepted notion.
In recent times, however, child cruelty in educational institutions have seen a decline due to strict legislative enactments. But, domestic abuse of children yet goes unaddressed because children by themselves are unaware of their rights.
Apart from educational institutions and home, children can be prone to cruelty even from their peers, i.e other children or another child older in the age in the form of bullying. Bullying means abusing and mistreating someone vulnerable by someone stronger, or more powerful, etc.
Employment of child for begging
Remember Oliver Twist by Charles Dickens? Where the leader of a child begging racket named Faggin would train the impoverished and orphaned children the art of begging, pickpocketing, and stealing.
Next time you donate some alms to any child, be it on a bus stop or sidewalk or a railway platform, begging in front of you for some money using phrases like ‘they have not eaten anything for the past few days’, try to be a little cautious. That child can be a member of some racket where they are coerced into begging. The very money you are donating to the kid so that he or she can have some food may eventually end up into the pockets of some racket leader who is using that kid to churn your sentiments and make an income through that kid.
Employment of children as beggars exists on a global scale, irrespective of a country’s economic scenario, you might think that what if that child was really hungry and is not related to any such racket? Do one thing next time when a child approaches you asking for alms then just buy him some food instead if you really intend to help. By doing this you will, on one hand, help the child and on the other ensure that the money does not end up in the hands of some racket.
Sometimes, a child can be used by his own parents to beg for alms. The money in this case also ends up with those who find a child as a convenient source of earning.
Intoxicating a Child
As already mentioned before, the alms you provide to a child who claims himself to be hungry can end up in the hands of some racket leader. However, sometimes it may also end up for the consumption of intoxicants like cigarettes, alcohol, drugs, etc.. There are sellers who for their greed of gains, sell these intoxicating substances to the children.
As racket leaders also tend to intoxicate the kid so that it becomes easier for them to control them so that the children do not run away or protest.
Not only racket leaders, but children might also be exposed to substance abuse by their family members who are or are substance abusers themselves.
Again post intoxication, a child might be kidnapped for the purpose of sale and procurement.
Kidnapping and Abduction
Although kidnapping and abduction are used synonymously for referring to the same purpose, there exists a thin differential line between the two. The kidnapping usually refers to the removal of a minor from the lawful custody of the parents or guardians, whereas abduction refers to the forceful carrying away of an adult person. In the case of kidnapping, the consent of the kidnapped minor is immaterial. However, in the case of abduction, the consent of the adult so abducted can be a good defence for the accused during a criminal proceeding.
Here, however, we will deal with the kidnapping of children which is an emerging issue in contemporary society.
A kidnapping may happen for a variety of reasons:
- For demanding ransoms: In this scenario, a child is being kidnapped so that the kidnapper can extort some money from his/her parents or guardians.
- For the purpose of selling and procurement: Here, the child so kidnapped is being sold to human traffickers who further sell the child for different purposes.
- Parental Child abduction: This mainly happens in the case of divorced or separated parents who kidnap the child for keeping such a child with him/her.
- For the purpose of illegal adoption: Sometimes children are kidnapped and sold to adoption agencies resulting in illegal adoption of such children.
- Murder: Sometimes children are kidnapped for extorting ransom and after the amount is received they are murdered by the Kidnappers so that such children can provide witnesses against the kidnappers. Again, sometimes children are kidnapped for various reasons like a family feud, personal vengeance, etc.
Sale and procurement
The sale and procurement of children is an emerging and problematic issue in the contemporary time frame.
Children after being kidnapped are sold through human trafficking rackets and are used for different purposes which involve:
- For employing them in the beggary.
- To coerce them for indulging in child prostitution.
- To hire them as house helpers.
- To coerce them towards illegal marriages or illicit relationships.
Other offences
- Child Prostitution
Prostitution refers to delivering sexual services in exchange for money or monetary benefit. Child prostitution is illegal everywhere. Although, there might be differences in the consensual age depending upon the country. For eg: In Italy, the age of consent is 14 years. Nevertheless, human trafficking, kidnapping, and all other child-related offences usually converge or relate to child prostitution. Despite strict legislation around the globe, child prostitution manages to prevail due to huge numbers of paedophiles in society.
- Child Pornography
Child pornography refers to the inducing or coercing a child for indulging in sexually explicit acts and recording them. Such inducing acts can be done by tempting a minor through monetary, or other means. Child pornography is banned in all the nations and pornographic websites are strictly directed for removal or filtering out any sexually explicit content involving a child from the websites.
- Child molestation and rape
Molestations and rapes are not solely restricted to any gender at present. A child irrespective of its gender can be exposed to sexual molestation or rape. Such offences might be committed to a child by a family member, family friend, school teacher or janitor or even his friends, house help, etc.
Usually, a child fails to comprehend the severity and consequences of such acts due to a lack of knowledge and maturity. Or maybe just stays silent due to threats from the perpetrators. Sometimes their family advises them to maintain secrecy for the purpose of maintaining the so-called family honour.
Whatever be the scenario, there has been an increase in sexual offences against a child and the majority of cases do not get reported.
The provisions for the punishment of the offences mentioned above find their place in various statutory enactments.
Punishment under the Juvenile Justice Act
Chapter IX, Section 75 to Section 87 of this Act deals with the punishment for offences committed against the children.
Punishment for cruelty on a child
According to Section 75; Anyone holding actual charge of or control over a child:
- Assaults,
- Deserts,
- Abuses,
- exposes, or
- does wilful negligence of such child or causes or procures the child to be treated in these manners,
thereby inflicting unnecessary mental or physical suffering to such child, shall be punishable with imprisonment for a term extending up to 3 years or with a fine of 1 lac rupees or both.
If it is found that such abandonment or desertion of the child by the biological parents is caused due to reasons exceeding their control, it shall be presumed that such abandonment is unintentional and the penal provisions under section shall be inapplicable.
In case such offence is committed by any employee or manager of child care or child protection organization, such employee shall be punished with rigorous imprisonment extending up to 5 years, and fine extending up to 5 lacs rupees:
Moreover, if the aforesaid cruelty causes the child to be incapacitated, or make him mentally ill, or mentally unfit for performing regular tasks, or is vulnerable to life or limb, then such person shall be punishable with rigorous imprisonment, with a minimum period of 3 years but which may be extended up to 10 years and shall also be liable to a fine of 5 lac rupees.
Employment of a child for begging
According to Section 76; anybody who employs a child for begging purposes or makes any child beg shall be punished with imprisonment for a term extending up to 5 years accompanied by a fine of 1 lac rupees.
Also, if any person amputates or maims the child for the purpose of begging, he shall be punished with rigorous imprisonment for a minimum term of 7 years which may extend up to 10 years, accompanied by a fine of 5 lacs rupees.
Anyone being in actual charge or control over a child abets the commission of any of the offences mentioned above, shall be punished in the same way as provided under this section, and such person shall be considered to be unfit under the section 2(14)(v) of this Act.
Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child
According to Section 77; anybody providing or making provision for the availability of any intoxicating liquor, or any sort of narcotic drug, or tobacco products, or psychotropic substance unless being prescribed by a duly qualified medical practitioner, to any child, shall invite punishment of rigorous imprisonment for a term extending until 7 years accompanied by a fine extending up to 1 lac rupees.
Using a child for bootlegging
According to Section 78; anyone using a child for the purposes of:
- Vending;
- Peddling;
- Carrying;
- supplying or smuggling;
of any intoxicating liquor, narcotic drug or psychotropic substance shall be liable for rigorous imprisonment for a term extending up to 7 years accompanied by a fine up to 1 lac rupees.
Exploiting a child employee
According to Section 79;
Anyone who:
- ostensibly engages a child and keeps him in bondage for employing or retaining his earnings; or
- uses such earnings for himself;
shall be punishable with rigorous imprisonment for a term extending until 5 years accompanied by a fine of 1 lac rupees.
The term “employment” shall include selling of goods and services, and entertainment in public places to obtain economic gain.
Punitive measures for adopting without following prescribed procedures
According to Section 80;
If any person or organization for the purposes of adoption:
- offers; or
- gives; or
- receives;
any orphan, deserted, or surrendered child, without complying by the provisions of this Act, then such person or organization shall be punishable with simple or rigorous imprisonment, for a term extending up to 3 years, or with fine of 1 lac rupees, or with both.
If such offence is committed by a recognized adoption agency, additional to the above punishment awarded to the persons in the authority and management of the adoption agency, the registration of such agency under Section 41 of the Juvenile Justice Act and its recognition under Section 65 of the Juvenile Justice Act shall be withdrawn for a minimum period of 1 year.
Selling and procuring children for any purpose
According to Section 81;
Any person selling or buying a child for any purpose shall be punishable with rigorous imprisonment for a term extending up to 5 years accompanied by a fine of 1 lac rupees.
If the offence is committed anyone who is the real custodian of the child, including:
- Employees of a hospital; or
- Employees of a nursing home; or
- Employees of a maternity home;
then the imprisonment term shall be a minimum for 3 years extendable up to 7 years.
Corporal Punishment
According to Section 82;
Anybody in-charge or employee of a child care institution, subjecting a child to corporal punishment, aiming to discipline the child, shall:
- on the first conviction, be liable to a fine of 10,000 rupees; and
- for every subsequent offence, shall be liable for imprisonment extending up to 3 months or fine or both.
If a person employed in a child care institute is convicted for an offence, such person shall be terminated from service, and shall also be debarred from working directly with children in the future.
In case, where any corporal punishment is reported in any institution and the institutional management is uncooperative with any inquiry or lacks compliance with the orders of:
- The Committee; or
- The Board; or
- The Court; or
- The State Government,
then the person-in-charge of the management of the institution shall be punishable with imprisonment for a minimum of 3 years and shall also be liable to pay fine extending up to 1 lac rupees.
Use of a child by militant factions or other adults
According to Section 83;
If any non-State militant group or outfit:
- Recruits any child; or
- Uses any child for any other purposes,
shall be liable for rigorous imprisonment for a term of maximum 7 years and shall also be liable to a fine of 5 lac rupees.
Any adult or a group of adults who use children for illegal activities, either individually or as a gang, shall be liable for rigorous imprisonment for a term of maximum 7 years and shall also be liable to a fine of 5 lac rupees.
Kidnapping & abducting children
According to Section 84;
For the purposes of this Act, the provisions of sections 359 to 369 of the Indian Penal Code, 1860 shall mutatis mutandis(things requiring change have been changed) applicable to a child or a minor who is below 18 years of age and all the provisions shall be construed accordingly.
Commission of offences on handicapped children
According to Section 85; anyone committing any of the offences specified in this Chapter, on any disabled child, then such person shall invite double the penalty provided for such offence.
For the purposes of this Act, the term “disability” shall be synonymous as assigned to it under Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Abetment
According to Section 87; anyone abetting any offence under this Act, and if the abetted act is committed consequentially, then the abettor shall invite the punishment provided for that offence.
An act or offence is said to be committed consequentially, if:
- such offence is committed in consequence of the instigation; or
- in pursuance of the conspiracy, or
- with the aid constituting such abetment.
Punishment under the other acts
Indian Penal Code
-
Murder
Section 302 of this Act provides for punishment of murder with death, life imprisonment, and fine. This provision includes the killing of a child or minor as well.
-
Abetment of suicide of any minor or insane person
According to Section 305; whoever abets the suicide of any person below the age of 18 years, or an insane person, or any delirious person, or an idiot, or an intoxicated person, shall be punishable with death, or life imprisonment or imprisonment extending up to 10 years, and shall also be liable for fine.
-
Offences related to causing of miscarriage, injuries to unborn children, exposing infants, and the concealments of births
Section 312 to Section 318 of the IPC enshrines the descriptions and punishments of offences related to unborn children, exposing infants, and concealment of births.
The offences include:
- Causing miscarriage of a woman with malafide intention and also includes the miscarriage caused by a woman to herself.
- Causing miscarriage to a woman excluding her consent.
- Causing miscarriage of a woman resulting in the death of such a woman.
- Acting in a way to prevent a child from being born or causing it to die immediately after birth.
- Causing the death of a quick unborn child by an act constituting culpable homicide.
- Causing the desertion of a child aged under 12 years by its parent or guardian.
- Causing concealment of the birth of a child by the disposal of its dead body.
-
Kidnapping & Abduction
Section 359 to Section 369 of the IPC deals with the description of Kidnapping, its various forms of punishment.
Kidnapping
According to Section 359; Kidnappings are of two types: kidnapping from India and kidnapping from lawful guardianship.
Kidnapping from India
According to Section 360; this means kidnapping of any person below the 18 years of age beyond the limits of India without the consent of such person or consent of any person authorized on this behalf.
Kidnapping from lawful guardianship
According to Section 361; this refers to taking or enticing a minor under the age of 16 years in case of male and 18 years in case of female, or unsound person, out of the keeping of the guardian of such minor or unsound person without obtaining the consent.
Punishment for Kidnapping
According to Section 363; this Act provides for punishment for up to 7 years of simple or rigorous imprisonment which might be accompanied by fine, in case of Kidnapping by a person.
Kidnapping or injuring any body part of a minor for the purposes of beggary
According to Section 363A; this provision introduced the presumption that if a person, except the lawful guardian, uses or employs a minor for begging, then unless the contrary is proven, the child is presumed to be kidnapped. The offence of kidnapping the minor for begging is punishable with simple or rigorous imprisonment up to 10 years and fine, and if the child is maimed during the commission of this offence, the accused shall be punishable with life imprisonment.
Kidnapping or abducting for murder
According to Section 364; any person who kidnaps or abducts another person for murdering that person, or for disposing of such person in a manner so as to put that person in the danger of being murdered, shall be punished with life imprisonment, or simple or rigorous imprisonment for a term up to 10 years, accompanied by fine.
Kidnapping for ransom
According to Section 364A; IPC provides that whoever kidnaps or abducts and causes the detention of a person while causing reasonable apprehension of death or hurt in order to extort ransom, shall be punished with death or life imprisonment accompanied by fine.
Kidnapping with the intention of secret and wrongful confinement
According to Section 365; whoever kidnaps another person intending to clandestinely or wrongfully cause the confinement of such person, shall be punishable with simple or rigorous imprisonment extending up to 7 years accompanied by fine.
-
Procuring minor girl
According to Section 372; whoever, by any means, induces a minor girl below the age of 18 years to go from any place or commit any act with the intention that such girl maybe, or being acknowledged that she will be coerced or seduced into illicit intercourse with another person, shall be punishable with imprisonment extending up to 10 years accompanied by fine.
-
Buying of minors for prostitution
According to Section 373; this provision deals with punishment of those persons who buy or hire any person under the age of 18 years, i.e. a minor with the intention or knowledge that he or she will be employed for the purposes of prostitution, illicit intercourse, or for any other unlawful or immoral purpose, with imprisonment extendable up to 10 years accompanied by fine. Also, if such an offence is committed against a female then it is presumed to include necessary mens rea unless the contrary is proven.
-
Raping a minor
According to Section 375,
A man is said to have committed the rape of a minor girl if he does any of the following acts with a girl below the age of 18 years, with or without her consent:
- Causes the penetration of his penis into the sexual organs of a woman or causes her to do so with him or any other person; or
- Puts in any object or a body part, to an extent, except the penis, into the sexual organ of a woman or compels her to do so with him or another person; or
- Manipulates any body part of a woman for causing penetration into her sexual organ or makes her do so with him or another person; or
- Makes the application of his mouth to the sexual organ of a woman or influences her to do so with him or another person.
This provision, however, deals only with the rape of a minor girl. However, IPC is a general enactment. Special enactment POCSO deals with the rape of both boys and girls in the age of minority.
POCSO Act
The Protection of Children Against Sexual offences Act, 2012 (POCSO) was enacted with an aim to provide a vigorous legal framework for protecting children from offences like sexual assault, sexual harassment, and pornography while protecting the juvenile’s interest at every stage of the judicial processes. The Act has been framed for prioritizing children, by making it easy to use, including mechanisms which render child-friendly reporting, evidence recording, investigation and speedy trial of offences through designated Special Courts.
The new enactment provides for various offences for which a perpetrator can be penalized.
It recognizes various penetrative modes other than penile-vaginal penetration and criminalizes immodest acts that are committed against children. offences under this act include:
- Penetrative Sexual Assault: Inserting penis/object/another body part in a child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person.
- Sexual Assault: When a person touches the child sexually or makes the child touch them or someone else in a similar manner.
- Sexual Harassment: passing sexual remarks, sexual gesture or noise, repeatedly stalking, flashing, etc.
- Child pornography.
- Aggravated penetrative sexual assault/aggravated sexual assault.
The act is gender-neutral for both children and for the alleged perpetrator. With respect to pornography, the Act criminalizes even watching or collecting pornographic content involving children. The Act criminalizes abetment of child sexual abuse.
Information and Technology Act
Section 67B of the Information Technology Act, 2000 enshrines the provisions related to the description of child pornography and mentions the punishment for the offender.
According to this section:
- Whoever publishes, or transmits, or causes such publication or transmission of any material in electronic form, depicting engagement of children in a sexually explicit act or conduct;
- Whoever:
- Makes the creation of the text or digital images;
- Collects;
- Seeks;
- Browses;
- Downloads;
- Advertises;
- Promotes;
- Exchanges or distributes,
any electronic material depicting engagement of children in acts of obscenity or indecency or sexually explicitness;
- Whoever grooms entices, or induces children to online relationship with each other or more children for and on the sexually explicit manner or in such manner which might be offensive to a reasonable adult on the computer resource;
- Whoever facilitates child abuse by use of the online medium;
- Whoever records electronically and retains any form of sexual abuse involving ownself or other persons, pertaining to sexually explicit acts with children;
shall on first conviction be punished with imprisonment of either description for a term extending up to 5 years accompanied by a fine up to 10 lac Rupees. And in case of second or subsequent conviction, the imprisonment period may extend up to 7 years accompanied by a fine up to 10 lac Rupees.
For the purposes of this section, a child shall refer to a person who is yet to attain 18 years of age.
However, the provisions of section 67, section 67 A, and this section shall exclude any:
- Book,
- Paper,
- Writing,
- Drawing,
- Electronic representation.
In case:
- such publication is evidently justified for the purpose of public good on the ground that such book, pamphlet, writing, drawing, etc is in the interest of science, literature, art or learning or other trivial objects; or
- the same is kept or used for bonafide heritage or religious purposes.
Possible reforms to prevent the crime
There exists 2 varying types of violence which are experienced by children (According to the United Nations, as anyone between 0 to 18 years of age), child maltreatment by parents and guardians towards children (0 to 14) years, and violence occurring in community settings among adolescents (15 to 18) years. These various forms of violence are preventable by addressing the underlying reasons and risk factors specific to each type.
Child maltreatment by parents & guardians are preventable through:
- Reduction of unintended pregnancies.
- Reduction of harmful alcoholic levels and illicit drug use during pregnancy period.
- Reducing harmful alcoholic levels and illicit drug use by new parents or guardians.
- By improving the access to high-quality pre and post-natal facilities.
- Providing home visitation services by professional nurses and social workers to families where children are maltreated.
- Providing parental training on the development of children, disciplining through non-violence, and developing problem-solving skills.
Violence involving children in community settings are preventable through:
- Preschool enrichment programs for providing an educational headstart to children.
- Training for developing life skills.
- Assistance to high-risk adolescents towards complete schooling.
- Reduction of alcohol availability through enacting and enforcing liquor licensing laws, taxation and pricing.
- Imposing restrictions on access to firearms.
Bettering the efficiency of pre-hospital and emergency medical care shall bring down the mortality risk, the recovery time, and the degree of long-term impairment resulting from violence.
Conclusion
The roots of all offences against the children can thus be traced to their immaturity and weakness (both physical and mental) they bear since their procreation well up to their adulthood. The children being absolutely unaware about what is going on can thus rarely question the perpetrators’ intentions or motives. It is unnecessary that the offences against the children shall contain any cruel ingredient. For example, intoxicating children is a crime. However, inducing children to intake intoxicating substances need not be done with coercion. One may simply transmit such substances through food and drinks until a child turns addicted to it. This is just one scenario.
Again, it might so happen that a Child is adopted illegally but kept in good care by the adoptees. But, such adoption shall still be deemed illegal.
The law, as of now, already enshrines provisions for stringent punishments pertaining to offences against children, but such punishments with time require a higher degree of severity so as to prevent and deter the perpetrators from committing such offences.
References
- Indian Penal Code, 1860.
- Juvenile Justice Act, 2015.
- Information Technology Act, 2000.
- Protection of Child from Sexual Offences Act, 2012.
- www.advocatekhoj.com.
- www.indiakanoon.org.
- https://www.who.int.
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