This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. It discusses the basic rights of children and the infringement of such rights. It also throws light upon the trial of cases relating to such offences. In addition, it will also talk about how such rights can be protected by individuals and society at large.
This article has been published by Diganth Raj Sehgal.
Disclaimer : The child helpline number in India is 1098. It is a toll-free emergency phone service and any child or concerned adult can contact them for assistance. This Childline operates day and night; 24*7 and 365 days a year.
“A bud of rose was crushed before it bloomed, a kite was torn when about to fly, the budding flower was crushed to ashes and the kite took the soul away.”
This is yet another sad saga of a three-year-old minor girl who was playing with her little dog when she was noticed by a delinquent, evil man who was lust-driven upon the sight of a little happy harmless child playing in her own little world.
‘5-year-old minor girl sexually assaulted by a 50-year-old’.
‘Child marriage of a minor girl prevented by city police’.
‘Mumbai Police rescues 9-year-old girl made to work as domestic help’.
‘19 minors rescued from Ranchi airport, a man held for involvement in child trafficking’.
These are not isolated instances. Every day, in our news and newspapers, we have been witnessing several headlines like these. Every now and then we come across such shocking incidents of innocent children being subjected to violence or being assaulted, tortured, forced into labour or prostitution or even married-off at a young age.
Since old times, children have been one of the major victims of criminal offences and have faced violation of their rights. They have always been the perpetrator’s ‘soft target’ for they do not understand the gravity of the act committed on them. Simply put, children are the most preferred victims of offenders due to their innocence and lack of maturity- adjectives that are usually directly related to the age of a child.
But, in recent times, committees like the Child Welfare Committee (CWC) and several laws like the Juvenile Justice Act, 2015, the Prohibition of Child Marriage Act, 2006, the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, the Protection of Children from Sexual Offences Act, 2012, etc. have been implemented for child safety. These laws have aided in curbing the violence against children to a certain extent. In addition, a surplus of people are getting enlightened about such laws through social media, news, and campaigns specially designed to raise public awareness. This has helped them express their oppression of such atrocities, thereby contributing to the betterment of society along with the well-being of children.
Now that we know about the crimes against children, let us learn about the basic rights of children, the harsh treatments they undergo and the trials of offenders against such crimes.
What are the rights of a child in India
It is quite heart wrenching to see children being deserted, wandering to fend for themselves on the streets, facing assaults, not having the privilege of even the most elementary education. They suffer many forms of violence. Moreover, they do not even have access to basic medical facilities. They are subjected to cruel and inhumane treatments every day. They are children- innocent young and beautiful- who are deprived of their rights.
In the history of human rights, the rights of children are the most frequently ratified. Child rights go beyond mere human rights that guarantee just and decent treatment of people all around the world and promote their well-being. A child, defined as any person under the age of 18, needs more than just human rights because of the set of unique needs that arise from their vulnerabilities.
According to the United Nations Convention on the Rights of the Child (UNCRC), child rights are defined as the ‘minimum entitlements and freedoms that should be afforded to every citizen below the age of 18 regardless of race, national origin, colour, gender, language, religion, opinions, origin, wealth, birth status, disability, or other characteristics.’ These rights include freedom of children and their civil rights, family environment, essential healthcare and welfare facilities, education, leisure and cultural activities, and special measures to protect them.
There are several standards and rights guaranteed by the laws that govern our country and the international legal instruments which we have accepted by ratifying them. Various rights have been conferred in the Constitution of India specially for children. In addition, just like any Indian adult male or female, children too, as equal citizens of India, have several other common rights. These rights are applicable to everyone irrespective of any restrictions. The basic rights of children in India include:
Right to equality
Article 14 of the Constitution of India states that every person is equal before the law and has equal protection of the laws. Thus, this right is applicable to children of India, as well, because, they too, are the citizens of this nation.
Right against discrimination
Article 15 of the Constitution talks about the prohibition of discrimination based on race, caste, etc. Under Article 15(1), no citizen shall be discriminated against based on his religion, race, caste, sex, place of birth or any of them. Further, Article 15(3) states that the State shall not be prevented from making any special provisions for women and children.
Right to freedom of expression
Article 19(1)(a) has conferred a right to freedom of speech and expression to each and every citizen of India. This right is applicable to everyone, including the children of India. Children have the liberty of expression as long as their opinions and knowledge do not harm others.
Right to life
According to Article 21 of the Constitution of India, every person has the right to life, liberty and security. It also states that no individual must be deprived of his life or personal liberty unless according to procedure established by law. Similarly, every child in India has the right to personal liberty and due process of law.
Right to health
Under Article 21 of the Constitution of India, although indirectly, every child has the right to lead a healthy life. Issues like HIV infections, lack of safe drinking water, adequate sanitation, malnutrition, inter alia, come under the protection of life.
Right to education
Under Article 21A of the Constitution of India, every child in the age group of 6-14 has the right to free and compulsory elementary education. Moreover, Article 45 states that the State shall strive to provide early childhood care and education for all children under the age of six years.
Note of information : This provision was introduced by the Eighty-sixth Amendment, 2002. Prior thereto, this provision asserted that free and mandatory education must be provided for children under 14 years of age. But, after the Amendment, the right to education for all children between the ages of 6 and 14 has been made a fundamental right. Moreover, the position today is that early childhood care and education for children below the age of 6 years is a Directive Principle, whereas free and compulsory education for all children between the age of six and fourteen years is a Fundamental Right.
Right to being protected from trafficking and forced into labour
Article 23 of the Constitution of India states that every person (including children) has the right to be protected from trafficking, begging and other similar forms of bonded labour.
Right to be protected from hazardous employment
Under Article 24 of the Constitution of India, every child below the age of 14 has the right to be protected from employment in factories or mines or be engaged in any other precarious employment conditions.
Right to be protected against abuse
Article 39(e) of the Constitution of India states that the health and strength of workers and the young age of children are not violated, and that, there is a right to be protected from being abused and not forced by economic necessity to enter avocations or minor occupations that do not suit their age or energy.
Right to equal opportunities and facilities
Article 39(f) of the Constitution of India states that children must be provided with just opportunities and facilities to progress in a healthy way and conditions of liberty and dignity. Also, children and youngsters are given protection against ill-treatment and moral and material abandonment.
Rights against social injustice and all forms of exploitation
Article 46 of the Constitution discusses the rights of the weaker sections of the society and that they should be safeguarded from social injustice and all forms of exploitation.
Right to Identity
Another important factor for child rights is their right to identity and registration. Only 41% of births in India are registered. Having an identity is a fundamental human right that gives an individual the liberty to enjoy all of their other rights. Identity consists of a family name, surname, date of birth, gender and nationality of the individual. By identification of such identities, an individual will hold rights and obligations specific to their status (woman, man, child, etc).
Types of offences against children
Human beings are capable of doing marvellous things. We have rewritten the meaning of what is possible a hundred thousand times, and yet, we continue to leave lakhs of children behind. We have been accepting this loss of human potential as ‘normal’. From lack of education to protection from exploitation to child labour, the basic rights of millions of children are held back or violated.
Since we now know the basic rights of a child, let us learn about the types of transgressions against children that are violations of child rights. Here are some of the many offences against children that violate children’s rights:
Child marriage denies children their basic rights. Many a time, children who are subjected to this offence have to drop out of school, thus, denying their basic right to education bestowed under Article 21 and Article 45 of the Constitution.
Moreover, they are also exposed to violence (sexual, physical and emotional), thus denying their right to personal liberty which is also vested under Article 21 of the Constitution of India. Child marriage leads to experiences that their young minds and bodies are not prepared for, say for example- motherhood.
Quick fact: There are around 24 million child brides in India. According to the National Family Health Survey, around 40% out of the world’s 60 million child marriages are in India. According to the International Center for Research on Women, India has the 14th highest child marriage rate in the world.
Children below the age of fourteen often work the whole day in stitching shoes and footballs, rolling cigarettes and incense sticks, doing embroidery on clothes, handicrafts, packing and sticking labels to various items. Child labour is often a result of the unemployment of the adults in the family or low parental wages, thus, forcing the child to provide or contribute to household expenses.
The major factors which contribute to child labour are:
- Lack of food,
- High poverty,
- Social conditions,
- Economic circumstances, inter alia.
The other factors include:
- Lack of awareness about the detrimental effects of child labour,
- Lack of access to basic and meaningful quality education and skills training.
At times, children are exposed to harmful chemicals in factories (fireworks, machinery, etc) or engage in dangerous and exploitative child labour which is reckoned to be detrimental for their health and growth. Child labour violates Article 21 (right to life), Article 23 (right to protection from forced labour), Article 24 (right to protection from hazardous employment) of the Constitution of India.
Employment of child for begging
To date, Indian children continue to face some of the harshest conditions and treatments, one of them is done through instigating or forcing them into begging. Employment or use of a child for begging is an offence under Section 76 of the Juvenile Justice Act and is also a violation of Article 21 (right to personal liberty) of the Constitution.
The exploitation of a child employee
A child can be ostensibly engaged or kept in bondage for the purpose of employment or be declined to give his share of earnings or might have his earrings used for the employer’s gain. Such an act is prohibited under Article 39(e) and Article 46 of the Constitution and is punishable under Section 79 of the Juvenile Justice Act.
Any person who is in charge or has control over a child- assaults, abandons, abuses, exposes or willfully neglects the child or creates circumstances where the child undergoes any of the aforementioned treatments will be termed to have subjected the child to cruelty. This act is punishable under Section 75 of the Juvenile Justice Act and is a violation of Article 21 (right to life and liberty) of the Constitution.
Intoxicating a child
Giving a child intoxicating liquor or narcotic drug or tobacco or any psychotropic substance, not only orally, but also for inhaling or smoking or by using an injection, etc is an offence. Performing such an act will attract a penalty under Section 77 of the Juvenile Justice Act and is also a violation of Article 19(1)(a) which discusses freedom of speech and expression and Article 21 which discusses the right to life and personal liberty in the Constitution.
Using a child for supplying or smuggling intoxicating substances
Any person who uses a child for vending, peddling, transporting, delivering or smuggling any intoxicating liquor, narcotic drug or psychotropic substance is said to have committed an offence under Section 78 of the Juvenile Justice Act. Even in this case, Article 21 is violated.
Selling or procuring a child
Under Section 81 of the Juvenile Justice Act, any person who sells or buys a child for any purpose has committed an offence.
Kidnapping and Abduction of a child
Children after being kidnapped are sold through human trafficking rackets and used for several purposes, some of them are:
- house helpers, etc.
Any non-State, self-styled militant group or outfit declared by the Central Government, if recruits or uses any child for any purpose is liable to punishment under Section 83 of the Juvenile Justice Act. The object of this section is to protect the child from being used by the militant group or by any individual or organisation for any unlawful activities.
Female Genital Mutilation (FGM)
Female Genital Mutilation (FGM) is defined as the technique pertaining to partial or total removal of the female external genitalia or causing other injuries to the female genital organ for non-medical reasons.
The practise of FGM is typically upheld by deeply ingrained social norms. This is a violation of a child’s right to health (Article 21) and is also an infringement of a child’s right to be free from violence, cruel, inhuman and degrading treatment.
Current status of child rights
According to Humanium, there are 472 million children who are under 18 years of age. This represents around 39% of the country’s total population. Amongst this, 29% consist of children between the age of 0 to 6 years. Further, 73% of children in India are residing in rural areas and have limited access to basic necessities such as nutrition, access to healthcare, education, and protection.
India’s Commission for the protection of children’s rights (Act 2005) which was amended in 2006 has positively affected the promotion of child’s rights in India. The Commission’s mission is to ensure that ‘all laws, policies, programmes, and administrative mechanisms are in line with the Child Rights perspectives as enshrined in the Constitution of India and the UN Convention on the Rights of the Child’, adopted in 1989.
Children in India continue to face hardships in achieving their basic rights, especially, those related to education, forced labour and child marriage. Considering that children in India make up 39% of India’s 1.21 billion population, it is crucial that the rights of these children be met.
Dire need to safeguard child rights
With the implementation of the Commission, it is evident that promoting children’s rights is a priority of the government, a right that is also enshrined in the Constitution and protected in legislation. Despite all the laws, children across various states in India are subjected to cruel and harsh treatment by offenders, thus, having their basic rights violated.
Below are some of the crimes and punishments for offenders of child rights.
Punishments under Juvenile Justice Act
Chapter IX of the Juvenile Justice Act, 2015 re-enacts the provisions relating to special offences with regards to juveniles. To be specific, Section 74 to 89 of the Act deals with the punishment for offences committed against children. They have the following heads:
- Provision on disclosure of Identity of children (Section 74).
- Punishment for cruelty to children (Section 75).
- Employment of a child for asking alms (Section 76).
- Penalty for giving intoxicating substances to a child (Section 77).
- Utilising the child for carrying and smuggling intoxicating substances (Section 78).
- The exploitation of a child employee (Section 79).
- Punitive measures for adopting a child by not following a proper procedure (Section 80).
- Sale and procurement of a child for any purpose (Section 81).
- Corporal punishment (Section 82).
- Use of children by militant groups (Section 83).
- Kidnapping and abduction of a child (Section 84).
- Offences committed on physically impaired children (Section 85).
- Classification of offences and designated court (Section 86).
- Abetment (Section 87).
- Alternative punishment (Section 88).
- Offences committed by a child under this chapter (Section 89).
Punishments under other statutes
Indian Penal Code
There are several provisions under the Indian Penal Code, 1860 that are offences and a violation of child rights, some are as follows:
Section 300 (murder except in case of culpable homicide), Section 301 (culpable homicide by causing the death of a person other than a person whose death was intended), Section 302 (punishment for murder) and Section 303 (punishment for murder by life-convict) of the IPC discusses murder. Everything ranging from what is murder to the punishment of murder is talked about in these Sections. These provisions are applicable to the offenders who kill/murder a child or minor, as well.
- Abatement to suicide
Section 305 (abatement of the suicide of child or an insane person) and Section 306 (abatement of suicide) in the IPC is that of abetment of suicide under 18 years of age, or by any insane or a delirious person, or an idiot person or an intoxicated person and the punishments applicable thereof.
- Offences causing miscarriage, exposure of infants, etc
Section 312 (voluntarily causing a woman with a child to miscarry), Section 313 (miscarriage without consent) and Section 314 (causing the death of a woman with intent to cause miscarriage) discuss the offences relating to causing miscarriage.
Whereas, Section 315 (mala fide act with intention of preventing a child from being born or likely to cause its death) and Section 316 (causing the death of a quick unborn child) discuss the injuries born to unborn children.
Further, Section 317 discusses the exposure and abatement of a child under 12 years of age by parents or guardians. Section 318 discusses the intentional concealment of the birth of a child by secretly burying it or disposing of it.
- Kidnapping, abduction, slavery and forced labour
Section 359 to Section 374 of the IPC comprises kidnapping, abduction, slavery, sale of minors and forced labour.
Section 359 states that kidnapping is of two types:
- Kidnapping from India (Section 359-360 & 363),
- Kidnapping from lawful guardianship (Section 361-363).
Section 360 discusses kidnapping from India and Section 361 discusses kidnapping from lawful guardianship. Whereas Section 362 talks about abduction (taking someone to a place against their will), Section 363 discusses the punishment for kidnapping, Section 363 A talks about kidnapping or maiming a minor for purposes of begging, Section 364 talks about kidnapping or abducting in order to murder, Section 365 discusses kidnapping or abducting with intent secretly and wrongfully to confine a person, Section 366 discusses kidnapping or abducting a woman to force her into getting married or to have intercourse, Section 367 discusses kidnapping or auditing a person to expose a person to serious injury, slavery, etc., Section 368 discusses the repercussions for illegally concealing or keeping in captivity, kidnapped or abducted person, Section 369 discusses the kidnapping or abduction of a child below 10 years of age with an intent to dishonestly obtain any property from its (child’s) person, Section 370 discusses importing, exporting, buying, selling or disposing any person as a slave, Section 371 covers punishment for habitual dealing in slaves. Further, Section 372 talks about the sale of any minor for prostitution, etc., Section 373 talks about buying a minor for prostitution, etc., and lastly, Section 374 states that any individual who forces another individual for labour against the will shall be punished.
Section 375 of the IPC deals with rape against will, with or without consent when she is under sixteen years of age, etc.
A note must be taken that after the 2013 Amendment, sexual intercourse or sexual acts performed by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Protection of Children from Sexual Offences (POCSO)
The Government of India enacted the (POCSO) in 2012 to safeguard children from crimes such as sexual abuse, sexual assault, sexual harassment and pornography. This act prescribes strict penalties for the crime. The maximum penalty under this Act is life imprisonment and a fine.
Offences against the POCSO Act are:
- Penetrative sexual assault
It is the act of inserting a penis, an object or any part of the body in a child’s vagina, urethra, anus or mouth; or instigating or making the child do so with them or another person. The punishment for such acts is covered under Section 4 of the Act.
- Sexual assault
Section 7 of the POCSO Act defines sexual assault as the act of touching the vagina, penis, anus or breasts of the child with sexual intent or making the child touch the aforementioned body parts of such person or another person or performing any act involving physical contact without penetration. Section 8 of the Act states that committing such a crime shall attract a punishment of imprisonment of a term not less than 3 years, which is extendable up to 5 years along with a fine.
- Aggravated penetrative or aggravated sexual assault
Section 9 of the Act covers aggravated sexual assault performed by either a police officer, a member of the armed or security forces, a public servant or jail staff, etc. Section 10 of the Act states that a person committing such an act shall be punished with an imprisonment of a term not less than 5 years, which can be extended to 7 years, and also be liable to a fine.
- Sexual harassment
Section 11 of the Act states that any person who passes any sexual remarks, or makes any gestures with an object or part of the body or makes a child do so or anything that involves sexual intent shall be termed to have perpetrated sexual harassment. The punishment for such activity stated under Section 12 is imprisonment of up to 3 years and also a fine.
- Child pornography
Section 13 of the Act states that any person who is involved in sexual gratification of a child or involves a child in representing its sexual organs or uses the child for engaging in real or stimulating sexual acts (with or without penetration) or is representing the child indecently or in an obscene manner in any form of media (print, TV channel advertisement, etc) is termed to be guilty of an offence of using a child for pornographic purposes. The punishment for the same as per Section 14 of the Act is imprisonment for a term not less than 5 years or 7 years (depending on the event) and also fine.
Note of information : In 2019, Parliament passed the POCSO Bill, 2019. This bill aimed to improve the criminal provisions related to sexual offences against children by including the death penalty in the provision of the law.
Information Technology Act, 2000
The Information (IT) Act, 2000 contains sufficient provisions for combating the prevailing cyber crimes. In particular, Section 67B of the Act specifically provides for strict penalties for publishing, browsing or transmitting child pornography electronically.
In addition, Section 79 of the IT Act and the Information Technology (Intermediary Guidelines) Rules, 2000 require that the intermediaries shall observe due diligence while discharging duties and shall inform the users of computers resources to act accordingly.
Trial of offences against children
Now that we know the offences and crimes committed against children and minors, let us have a glance at the trials of such offences.
POCSO courts are those special courts that are established specially for trials of cases of crimes against children. Such courts are aimed at protecting minors and their victimisation. In India, there are around 597 fast track courts, out of which 321 are exclusively POCSO courts. The High Courts are responsible for monitoring the working and controlling of POCSO courts.
In recent years, the number of crimes against children has increased and so has the pendencies in the special children courts. Even though the high courts and states have taken several measures like the appointment of 459 special prosecutors, 729 special police units and 597 children courts in 681 districts, an efficient monitoring system needs to be implemented to ensure the trials are completed in a given time frame.
Sections under several Acts involving the trial of child rights’ offenders
Provisions under POCSO Act and its Amendment
- This Act provides for the establishment of special courts for the trial of offences or for the prosecution of offenders who commit an offence under the said Act. The best interest of the child is paramount at all stages of the judicial process.
- The Act comprises child-friendly procedures for reporting, recording evidence, investigation and trial of offences.
- Under this Act, even an unsuccessful intent to commit an offence must be penalized, and thus, the attempt to commit an offence is made liable for up to half the penalty prescribed for the original punishment.
- The Act also has provisions for instigating an offence, which is considered similar to the commission of an offence.
- For the more heinous offences like sexual assault and harassment, the burden of proof is shifted to the accused. This provision has been implemented keeping in mind the greater vulnerability and innocence of children.
- For averting misuse of the law, a provision for making erroneous complaints has been implemented. Under Section 22 of the Act, committing such an act attracts a punishment of imprisonment of up to 6 months and if a false complaint is made against a child, the punishment is greater of up to 12 months.
- Under Section 23 of the Act, the media cannot disclose the identity of the child. If breached, the penalty may be from 6 months to 1 year.
- Under Section 35, the Act states that evidence of the child must be recorded within 30 days and the special courts must, as far as possible, complete the trial of such offences within a year.
- Further, the Sections of this Act apply in addition to the other provisions of any other law and do not deviate from them. In case of any clashes, the provisions of this Act will supersede all other provisions.
- This Act is applicable only to child survivors and adult offenders. Thus, if two children are having intimate relations with each other or if a child has committed a sexual offence against an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000 will apply.
Provisions under Juvenile Justice (Care and Protection) Act, 2015
- Section 25 has special provisions in respect of pending cases. It states that all proceedings referring to a child, alleged or to be found to be in conflict of law, which is pending before a board or any court on the date of commencement of this Act, shall be continued in that board or court as if the Act had not been enacted.
- Whereas, Section 86 of the Act states the following:
- In case if an offence is punishable with imprisonment for a term of more than 7 years under this Act, then, such an offence shall be cognizable, non-bailable and triable by a Children’s Court.
- In case if an offence is punishable with imprisonment for a term of 3 years under this Act, then, such an offence shall be cognizable, non-bailable and triable by a Magistrate of First Class.
- In case if an offence is punishable with imprisonment for a term less than 3 years under this Act, then, such an offence shall be non-cognizable, bailable and triable by any Magistrate.
Provisions under the Commission for protection of Child Rights Act, 2005
- Section 25 in the Act has special provisions for Children’s Courts. It states that for the purpose of providing speedy trial of offences against children or for offences committed that are a violation of child rights, the State Government with the agreement of Chief Justice of High Court shall have at least one court in the State or a Session Court in each district.
- Moreover, Section 26 discusses the appointment of a special public prosecutor for every Children’s Court by the State Government. The government, for conducting cases in that court, can even appoint an advocate who has been practising for not less than 7 years.
As per an article published on Business Standard, the Praja Foundation report established that even if there was a decline in crimes against children in Delhi, the trial of 99% of cases under the POCSO Act was still pending. The report also brought attention to the fact that the POCSO Act was enacted keeping in mind the sole purpose of providing speedy justice to minors.
The following are the key takes from the report:
- Around 42% of the total rape cases were committed against children below 18 years in 2020, as compared to 45% and 47% in 2019 and 2018 respectively.
- The highest number of rape victims were in the age group of 12 to 18 years (620 out of 721 in 2020).
- In 95% of the rape cases, the offenders were known to the victims (686 out of 721 cases).
- Out of 67% of cases under the POCSO Act, 93% were unnatural offences.
- Out of 3,32,274 IPC cases that were to be tried in the Delhi courts, the trial of 92% of cases was pending as of December 2020. This reflected an overburden on the judiciary leading to the delayed justice for victims.
- In 2020, the judgments for only 56 cases were given, thus portraying the inefficacy in following the provisions of the said Act.
As per another article published on NDTV, a new study was carried out by the Kailash Satyarthi Children’s Foundation (KSCF) which analysed the status of disposal of cases registered under the POCSO Act. It is based on the data and information published by the National Crime Records Bureau (NCRB).
The following are the key takes from the report:
- Every year, as many as 3,000 POCSO cases which were registered and investigated were unsuccessful in reaching the court for a fair trial.
- Four child victims of sexual abuse are denied justice every day due to the closing of the cases by police because of the inadequate proof or lack of proper clue.
- In 2019, 43% of cases were closed by police on the grounds of inadequate proof or lack of clue, as per the final reports filed in the court.
- From the NCRB data, a majority (two-fifths) of POCSO cases were disposed off/closed by the police without charge-sheeting. The reason behind this was stated that the cases were true, but they lacked the evidence or were untraceable.
- The study found that 51% of POCSO-based cases were registered in Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana, and Delhi.
- The study also states that the courts are in dire need of advancing the justice delivery mechanism, as up to 89% of victims of child sexual abuse were awaiting justice by the end of 2019.
As per another article published by the Free Press Journal, the one-year timeframe for POCSO cases under Section 35 of the POCSO Act is only on paper. Also, even if there are special courts designed under this Act, an average of about three years for the cases to conclude, which may extend to four or six years, was estimated. as per the Prosecutors, the delay was due to the overburdened courts, given the fact that many POCSO cases were being filed.
Last but not the least, an article published on DNA in 2018 opinionated that India would take 20 yrs to clear the backlog of 2016 POCSO cases. This statement was given by Nobel Peace Laureate and child rights activist Kailash Satyarthi.
Recent cases of trials of child rights offenders
Thresiamma Varkey’s v. State of Kerala (2017)
In this case, the question at hand was ‘Whether an offence committed before the commencement of any Act be tried in which court?’
The offence (a minor girl aged 13 years was found employed in the house of the petitioner as a servant for a meagre wage of ₹100/- per month) was allegedly committed on 5th June 2011 and the new Act i.e. the Juvenile Justice (Care and Protection of Children) Act, 2015 became effective on 15th January 2016.
Here, the Court held that the change of law was merely a change of forum, i.e. a change in the procedure and not in substantive law. Plus, as per Section 86 of the Juvenile Justice Act, a three-fold classification of the designated courts (Children’s Court, Magistrate of First Class and any Magistrate) was provided for three types of offences (heinous, serious and petty offences).
Thus, it was concluded that the court where the case is being tried does not have the jurisdiction to try such an offence. Therefore, the case was redirected to be transferred to the Judicial Magistrate of First Class (JMFC) for trial.
Ramkirat Munilal Goud v. the State Of Maharashtra And Anr., 2021
In this case, the Division Bench awarded a death sentence to a 30-year-old man who was accused of committing an egregious crime of sexually assaulting a 3-year-old child and then murdering her brutally.
Amelioration of child rights and modifications in the laws that safeguard them
Every child has the right to be protected. This not only includes those children who have sustained violence, abuse and exploitation, but also those who are not in any of these unfavourable circumstances. The following are several recommendations that can be implemented for improving the condition of children today and in the prevention of child rights violations-
- In society at large
- Sexual education for children as well as their parents.
- Setting up a child helpline number and support centres to break the silence.
- Creating preventive measures and making them known widely to the general public.
- Creating a committee for annihilating violence against children.
- Restrict harmful traditional practices (like FGM) by law.
- Launching various awareness campaigns and enlightening society about the rights of a child.
- At the workplace, in the street and in institutions
- Raise employees and employers awareness of children’s rights and the impact of corporal punishment on children.
- Educate them to listen to their children.
- Ensuring the safety of children at work.
- Propel and support the growth of child-led organisations.
- At the place of study
- In places like schools, educational institutions, etc. there should be an increase in the number of education counsellors/advisers.
- Teachers and professors should be sensitised about the ill effects of corporal punishments.
- A disciplinary committee that can work in partnership with children’s organizations can be established at school.
- The safety and security of children in schools must be ensured.
- At home
- The parents can be made aware of the consequences of violence against children.
- Parents can be taught how to communicate with their children (parent’s school).
- They can be provided with alternative methods to discipline children.
- Educating parents about children’s rights and laws prohibiting corporal punishment.
- Various laws can be adopted and implemented on violence against children.
- By the Government
- The Government can implement various schemes like scholarship programs for the well-being of children and receive sponsorship from individuals, entrepreneurs, politicians, etc. Tax benefits for encouraging sponsorship can be given to such sponsors.
- More child helpline numbers can be created and these telephone numbers are promoted through advertising.
- More strict laws against child rights violations and effective implementation of the same.
- Stringent laws are to be implemented for any TV channel/show that encourages violence, sex and vulgar activities.
- Form local communities with volunteers for campaigning and creating awareness on child rights.
- Government schools must also offer awareness lessons for child rights.
There is an age-old Bible saying “Children are a gift from the Lord; they are a reward from him”, but with the aforementioned horrendous instances the saying enters into a realm of absurdity.
Every child deserves to be treated fairly, equally and with utmost dignity, irrespective of all their differences. They are entitled to all the basic rights, no matter what race, colour, caste, creed, language, ethnicity or gender they belong to.
The nation, the government, the citizens of the country, must stand united and raise their voice against any atrocities a child goes through. It is important that the suffering of children throughout the country be ended, and they should be given a healthy, happy and safe environment that nurtures them physically, mentally and emotionally, only then, will the future of the nation be in safe hands.
- Book by N. H. Jhabvala on The Indian Penal Code (39th edition)
- Book by N. H. Jhabvala on The Constitution of India (29th edition)
- Book by C.P. Veena on The Juvenile Justice & Probation of offenders (9th edition)
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: https://t.me/joinchat/L9vr7LmS9pJjYTQ9