NATIONAL COMMISSION FOR WOMEN

____________________________________________

HUMAN RIGHTS, REFUGEE LAW & INTERNATIONAL HUMANITARIAN LAW

SUBMITTED BY

AMIT RAWLANI

SEMESTER V ROLL NO 11 CLASS OF 2017-22

FACULTY OF LAW

JAMIA MILLIA ISLAMIA.

UNDER THE GUIDANCE OF

DR. NOORJAHAN MOMIN

ASSISTANT PROFESSOR
FACULTY OF LAW,
JAMIA MILLIA ISLAMIA (CENTRAL UNIVERSITY),
NEW DELHI-110025
Child Abuse in India

Background

Child abuse is a state of emotional, physical, economic and sexual maltreatment

meted out to a person below the age of eighteen and is a globally prevalent
phenomenon. However, in India, as in many other countries, there has been no
understanding of the extent, magnitude and trends of the problem. The growing
complexities of life and the dramatic changes brought about by socio-economic
transitions in India have played a major role in increasing the vulnerability of children
to various and newer forms of abuse.

Child abuse has serious physical and psycho-social consequences which adversely
affect the health and overall well-being of a child. According to WHO: ''Child abuse
or maltreatment constitutes all forms of physical and/or emotional ill-treatment,
sexual abuse, neglect or negligent treatment or commercial or other exploitation,
resulting in actual or potential harm to the child's health, survival, development or
dignity in the context of a relationship of responsibility, trust or power.''

Child abuse is a violation of the basic human rights of a child and is an outcome of a
set of inter-related familial, social, psychological and economic factors. The problem
of child abuse and human rights violations is one of the most critical matters on the
international human rights agenda. In the Indian context, acceptance of child rights as
primary inviolable rights is fairly recent, as is the universal understanding of it.

DEFINITION OF CHILD ABUSE 1

The term 'Child Abuse' may have different connotations in different cultural milieu
and socio-economic situations. A universal definition of child abuse in the Indian
context does not exist and has yet to be defined. According to WHO:

 Physical Abuse: Physical abuse is the inflicting of physical injury upon a child.
This may include burning, hitting, punching, shaking, kicking, beating or
otherwise harming a child. The parent or caretaker may not have intended to hurt
the child. It may, however, be the result of over-discipline or physical punishment
that is inappropriate to the child's age.

1World Health Organization. Responding to children who have been sexually abused. WHO Clinical
Guidelines. Geneva: World Health Organization, 2017.

2
 Sexual Abuse: Sexual abuse is inappropriate sexual behaviour with a child. It
includes fondling a child's genitals, making the child fondle the adult's genitals,
intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation. To be
considered ‘child abuse’, these acts have to be committed by a person responsible
for the care of a child (for example a baby-sitter, a parent, or a day-care provider),
or related to the child.

 Emotional Abuse: Emotional abuse is also known as verbal abuse, mental abuse,
and psychological maltreatment. It includes acts or the failures to act by parents or
caretakers that have caused or could cause, serious behavioural, cognitive,
emotional, or mental trauma. This can include parents/caretakers using extreme
and/or bizarre forms of punishment, such as confinement in a closet or dark room
or being tied to a chair for long periods of time or threatening or terrorizing a
child.

 Neglect: It is the failure to provide for the child's basic needs. Neglect can be
physical, educational, or emotional. Physical neglect can include not providing
adequate food or clothing, appropriate medical care, supervision, or proper
weather protection (heat or cold). It may include abandonment. Educational
neglect includes failure to provide appropriate schooling or special educational
needs, allowing excessive truancies. Psychological neglect includes the lack of
any emotional support and love, never attending to the child, substance abuse
including allowing the child to participate in drug and alcohol use.

CHILD ABUSE SCENARIO

CHILD ABUSE ACROSS THE GLOBE2

 The UN Secretary General's Study on Violence against Children has given the
following overview of the situation of abuse and violence against children across
the globe.
 WHO estimates that almost 53,000 child deaths in 2002 were due to child
homicide.
 In the Global School-Based Student Health Survey carried out in a wide range of
developing countries, between 20% and 65% of school going children reported
having been verbally or physically bullied in school in the previous 30 days.
Similar rates of bullying have been found in industrialised countries.

2UNICEF and Indian Medical Association. Child Sexual Abuse: Prevention and Response.
Information for Doctors and Health Care Professionals (2015)

3
 An estimated 150 million girls and 73 million boys under 18 have experienced
forced sexual intercourse or other forms of sexual violence involving physical
contact.
 UNICEF estimates that in sub-Saharan Africa, Egypt and Sudan, 3 million girls
and women are subjected to FGM every year.
 ILO estimates that 218 million children were involved in child labour in 2004, of
which 126 million were engaged in hazardous work. Estimates from 2000 suggest
that 5.7 million were in forced or bonded labour, 1.8 million in prostitution and
pornography and 1.2 million were victims of trafficking.
 Only 2.4% of the world's children are legally protected from corporal punishment
in all settings3.

One of the major problems in understanding the scope of the subject of 'child abuse' is
that it is extremely difficult to get responses from children on such a sensitive subject
because of their inability to fully understand the different dimensions of child abuse
and to talk about their experiences. It is therefore difficult to gather data on abused
children. Further, definitions of abuse are not yet consistent within countries, much
less from country to country or region to region. Yet governments do estimate that the
number of abused and neglected children is alarming, and unless governments get
their act together and respond to the situation by way of both prevention and
treatment, we will be doing a grave injustice to our children and would be denying
them their basic rights.

CHILD ABUSE IN INDIA

Nineteen percent of the world's children live in India. According to the 2001 Census,
some 440 million people in the country today are aged below eighteen years and
constitute 42 percent of India's total population i.e., four out of every ten persons.
This is an enormous number of children that the country has to take care of. While
articulating its vision of progress, development and equity, India has expressed its
recognition of the fact that when its children are educated, healthy, and happy and
have access to opportunities, they are the country's greatest human resource. The
National Policy for Children, 1974, declared children to be a 'supreme national asset'.
It pledged measures to secure and safeguard all their needs, declaring that this could
be done by making wise use of available national resources. Unfortunately, ten
successive Five Year Plans have not allocated adequate resources to meet the needs of
children. An exercise on child budgeting carried out by the
Ministry of Women and Child Development revealed that total expenditure on
children in 2005-2006 in health, education, development and protection together

3World Health Organisation. Report of the consultation on child abuse prevention

(WHO/HSC/PVI/99.1). Geneva(Switzerland): World Health Organisation, 1999

4
amounted to a mere 3.86%, rising to 4.91% in 2006-074. However, the share of
resources for child protection was abysmally low at 0.034% in 2005-06 and remained
the same in 2006-07. Available resources have also not been utilized effectively for
achieving outcomes for children. As a result, the status and condition of children have
remained far from secure.
Harmful traditional practices like child marriage, caste system, and discrimination
against the girl child, child labour and Devadasi tradition impact negatively on
children and increase their vulnerability to abuse and neglect. Lack of adequate
nutrition, poor access to medical and educational facilities, migration from rural to
urban areas leading to rise in urban poverty, children on the streets and child beggars,
all result in breakdown of families. These increase the vulnerabilities of children and
expose them to situations of abuse and exploitation.
According to the report published in 2005 on 'Trafficking in Women and Children in
India', 44,476 children were reported missing in India, out of which 11,008 children
continued to remain untraced. India, being a major source and destination country for
trafficked children from within India and adjoining countries has, by conservative
estimates, three to five lakh girl children in commercial sex and organized
prostitution.

INSTRUMENTS AND STANDARDS FOR PROTECTION OF CHILD RIGHTS

CONSTITUTION OF INDIA

The Constitution of India recognizes the vulnerable position of children and their right
to protection.
Following the doctrine of protective discrimination, it guarantees in Article 15 special
attention to children through necessary and special laws and policies that safeguard
their rights. The right to equality, protection of life and personal liberty and the right
against exploitation are enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23,
24, 39(e) 39(f) and reiterate India's commitment to the protection, safety, security and
well-being of its entire people, including children.
 Article 14: The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India;
 Article 15: The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them;
 Article 15 (3): Nothing in this article shall prevent the State from making any
special provision for women and children;
 Article 19(1) (a): All citizens shall have the right (a) to freedom of speech and
expression;

4Study on Child Abuse: India (2007). Ministry of Women and Child Development, Government of
India. Available from:www.wcd.nic.in/childabuse.pdf. Accessed May 30, 2017

5
  Article 21: Protection of life and personal liberty-No person shall be deprived
of his life or personal liberty except according to procedure established by
law;
 Article 21A: Free and compulsory education for all children of the age of 6 to
14 years;
 Article 23: Prohibition of traffic in human beings and forced labour-(1) Traffic
in human beings and beggars and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence
punishable in accordance with law;
 Article 24: Prohibition of employment of children in factories, etc. -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;
 Article 39: The state shall, in particular, direct its policy towards securing:

(e) 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 vocations unsuited to their age or strength;
(f) 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.5

INTERNATIONAL CONVENTIONS AND DECLARATIONS

India is signatory to a number of international instruments and declarations6

pertaining to the rights of children to protection, security and dignity. It acceded to the
United Nations Convention on the Rights of the Child (UN CRC) in 1992, reaffirming
its earlier acceptance of the 1959 UN Declaration on the Rights of the Child, and is
fully committed to implementation of all provisions of the UN CRC. In 2005, the
Government of India accepted the two Optional Protocols to the UN CRC, addressing
the involvement of children in armed conflict and the sale of children, child
prostitution and child pornography. India is strengthening its national policy and
measures to protect children from these dangerous forms of violence and exploitation.
India is also a signatory to the International Conventions on Civil and Political Rights,
and on Economic, Social and Cultural Rights which apply to the human rights of
children as much as adults. Three important International Instruments for the
protection of Child Rights that India is signatory to, are:

5
Ministry of Women & Child Development, Government of India. India: Third and Fourth Combined
Periodic Report on the Convention on the Rights of the Child 2011
6
Child abuse and neglect: Asia Pacific Conference and the Delhi Declaration.2011;49:11–12.

6
 (i) Convention on the Rights of the Child (CRC)7 adopted by the UN General
Assembly in 1989 is the widely accepted UN instrument ratified by most of
the developed as well as developing countries, including India. The
Convention prescribes standards to be adhered to by all State parties in
securing the best interest of the child and outlines the fundamental rights of
children, including the right to be protected from economic exploitation and
harmful work, from all forms of sexual exploitation and abuse and from
physical or mental violence, as well as ensuring that children will not be
separated from their families against their will.8

(ii) Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) is also applicable to girls under 18 years of age. Article 16.2 of the
Convention lays special emphasis on the prevention of child marriages and
states that the betrothal and marriage of a child shall have no legal effect and
that legislative action shall be taken by States to specify a minimum age for
marriage.

(iii)SAARC Convention on Prevention and Combating Trafficking in Women and

Children for Prostitution emphasizes that the evil of trafficking in women and
children for the purpose of prostitution is incompatible with the dignity and
honour of human beings and is a violation of basic human rights of women
and children.

(iv) Declaration of Geneva Child must be given the means needed for its normal
development, both materially and spiritually. Hungry child should be fed; sick
child should be helped; erring child should be reclaimed; and the orphan and
the homeless child should be sheltered and succored. Child must be first to
receive relief in times of distress. Child must be put in a position to earn a
livelihood and must be protected against every form of exploitation. Child
must be brought up in the consciousness that its best qualities are to be used in
the service of its fellow men.

NATIONAL POLICIES AND LEGISLATIONS ADDRESSING CHILD

RIGHTS

The Fundamental Rights and Directive Principles of the Indian Constitution provide
the framework for child rights. Several laws and national policies have been framed to
implement the commitment to child rights.

7 UN Convention on the Rights of the Child (With Optional Protocols)

8
UN Committee on the Rights of the Child, 56th Session General Comment No.13 (2011)

7
N ATIONAL POLICIES

The major policies and legislations formulated in the country to ensure child rights
and improvement in their status include:
 National Policy for Children, 20129
 National Policy on Education, 1986
 National Policy on Child Labour, 1987
 National Nutrition Policy, 1993
 National Health Policy, 2002
 National Charter for Children, 2004
 National Plan of Action for Children, 2005
 Right to Education, 2009

N ATIONAL LEGISLATIONS
The Guiding Principles of the NPAC 2005
National legislations for protection of child rights in the country are:
 Guardian and Wards Act, 1890
 Factories Act, 1954
 Hindu Adoption and Maintenance Act, 1956
 Probation of Offenders Act, 1958
 Bombay Prevention of Begging Act, 1959
 Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960
 Bonded Labour System (Abolition) Act, 1976
 Immoral Traffic Prevention Act, 1986
 Child Labour (Prohibition and Regulation) Act,1986
 Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1987
 Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
 Persons with Disabilities (Equal Protection of Rights and Full Participation) Act,
2000
 Juvenile Justice (Care and Protection of Children) Act, 2000
 Commission for Protection of the Rights of the Child Act, 2005
 Prohibition of Child Marriage Act 2006
 The Protection of children from Sexual Offences,201210

Some of the important legislations are discussed below. Under each Act relevant
sections have been enumerated:

9
The National Policy for Children, 2012. http://pib.nic.in/newsite/ erelease.aspx? relid=94782.
10. The Protection of Children From Sexual Offences Act, 2012. http://wcd.nic.in/child
act/childprotection31072012.pdf

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(i) The Indian Penal Code

a) Kidnapping and Abduction:

 kidnapping for extortion (Section 360)
 kidnapping from lawful guardianship (Section 361)
 Kidnapping for ransom (Section 363 read with Section 384),
 Kidnapping for camel racing etc. (Section 363)
 Kidnapping for begging (Section 363-A)
 Kidnapping to compel for marriage (Section 366)
 Kidnapping for slavery etc. (Section 367)
 Kidnapping for stealing from its person: under 10 years of age only (Section
369)
b) Procurement of minor girls by inducement or by force to seduce or have illicit
intercourse (Section 366-A)
c) Selling of girls for prostitution (Section 372)
d) Buying of girls for prostitution (Section 373)
e) Rape (Section 376)
f) Unnatural Sex (Section 377).

(ii) The Immoral Traffic (Prevention) Act, 1956

In 1986, the Government of India amended the erstwhile Suppression of Immoral
Traffic in Women and Girls Act 1956 (SITA), and renamed it as the Immoral Traffic
(Prevention) Act (ITPA) to widen the scope of the law to cover both the sexes
exploited sexually for commercial purposes and to provide enhanced penalties for
offences involving children and minors. "Child" under ITPA means a person who has
not completed the age of sixteen years and "prostitution" means the sexual
exploitation or abuse of persons for commercial purposes.
Section 3: Stringent action and punishment for keeping a brothel or allowing premises
to be used as a brothel;
Section 4: Living on the earnings of prostitution;
Section 5: Procuring, inducing or taking a person for the sake of prostitution;
Section 6: If any person is found with a child in a brothel it shall be presumed, unless
the contrary is proved, that he has committed an offence of detaining a person in
premises where prostitution is carried on;
Section 6(1B): The punishment consists of imprisonment of either description for a
term which shall not be less than 7 years, but which may be for life or for a term,
which may extend to 10 years and shall also be liable to fine, with a provision for less
than 7 years under special circumstances;

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(iii)The Commissions for the Protection of Child Rights Act, 2005

The Act provides for the Constitution of a National and State Commissions 11 for
protection of Child Rights in every State and Union Territory. The functions and
powers of the National and State Commissions will be to:
 Examine and review the legal safeguards provided by or under any law for the
protection of child rights and recommend measures for their effective
implementation;
 Prepare and present annual and periodic reports upon the working of these
safeguards;
 Inquire into violations of child rights and recommend initiation of proceedings
where necessary;
 Undertake periodic review of policies, programmes and other activities related to
child rights in reference to the treaties and other international instruments;
 Spread awareness about child rights among various sections of society;
 Children's Courts for speedy trial of offences against children or of violation of
Child Rights;
 State Governments and UT Administrations to appoint a Special Public
Prosecutor for every Children's Court.

SCHEMES AND PROGRAMMES ON CHILD PROTECTION

Some of the existing child protection schemes and programmes include:

 A Programme for Juvenile Justice for children in need of care and protection
and children in conflict with law. The Government of India provides financial
assistance to the State Governments/UT Administrations for establishment and
maintenance of various homes, salary of staff, food, clothing, etc. for children in
need of care and protection and juveniles in conflict with law. Financial
assistance is based on proposals submitted by States on a 50-50 cost sharing
basis.

 An Integrated Programme for Street Children without homes and family ties.
Under the scheme NGOs are supported to run 24 hours drop-in shelters and
provide food, clothing, shelter, non-formal education, recreation, counselling,
and guidance and referral services for children. The other components of the
scheme include enrolment in schools, vocational training, occupational
placement, mobilizing preventive health services and reducing the incidence of
drug and substance abuse, HIV/AIDS etc.

11 National Commission for Protection of Child Rights (NCPCR)

10
 CHILDLINE Service for children in distress, especially children in need of care
and protection so as to provide them medical services, shelter, rescue from abuse,
counseling, repatriation and rehabilitation. Under this initiative, a telephone
helpline, number 1098, runs in 74 urban and semi-urban centres in the country.

 Shishu Greha Scheme for care and protection of orphans/abandoned/destitute

infants or children up to 6 years and promote in-country adoption for
rehabilitating them.
.
 Pilot Project to Combat the Trafficking of women and Children for
Commercial Sexual Exploitation in Source and Destination Areas for providing
care and protection to trafficked and sexually abused women and children.
Components of the scheme include networking with law enforcement agencies,
rescue operation, temporary shelter for the victims, and repatriation to hometown
and legal services.

GENERAL RECOMMENDATIONS:

1) Parenting support - Child abuse usually occurs in the home. If parents or

caregivers are no longer able to cope with caring for their children, this can result
in dysfunctional behaviour and lead to neglect and abuse. That is why
municipalities offer parents support and advice through the Youth and Family
Centres and baby and toddler clinics. When there are concerns about a family,
professionals may make home visits more frequently. They work with the parents
to identify their problems and discuss what kind of support they need.

2) Public information campaigns against child abuse - The government is running

a public information campaign aimed at preventing child abuse. It urges
neighbours, relatives and others who are close to children in abusive situations to
take action. The campaign also tells people how they can identify the signs of
domestic violence and what action they can take.

3) Measures to prevent child pornography - Preventing and identifying child

pornography falls under the government’s sexual abuse strategy. It is important
for parents and young people to become ‘digitally aware’. They need to know that
there is a risk of children encountering or becoming involved in child pornography
or grooming. The government wants people to be more aware of the risks of using
the internet, for example via its media literacy platform.

4) Mandatory reporting in case of suspected abuse - Professionals (such as

teachers and doctors) who suspect abuse are required by law to follow a reporting

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 code for domestic violence and child abuse. This is a step-by-step plan that
explains what actions they need to take12.

SPECIFIC RECOMMENDATIONS:

Apart from the general recommendations, there are certain specific recommendations
regarding different evidence groups that emerged from the study as given below:

Children in schools

1) The study has indicated beyond doubt that schools are the safest place for children
and therefore efforts should be made to increase the enrolment and retention of
children in school by adopting child friendly methods of teaching. Adequate
infrastructure including sanitation facilities, keeping in the mind the special needs
of the girl child, will encourage enrolment and retention of girl children in
schools.

2) The high incidence of corporal punishment in schools is a clear indicator of the

absence of use of positive disciplining techniques by teachers. Some state
governments have banned corporal punishment in schools. However, corporal
punishment continues unchecked. There is a need for formulating a central
legislation banning corporal punishment and creating a system where in such
cases are not only reported but strict action taken against abusive teachers and
principals.13

Children in institutions

The following recommendations are made:

1) Juvenile Justice Boards, Child Welfare Committees and Special Juvenile Police
Units should be set up in each district and manned by sensitive and trained
personnel.

2) In existing institutions, standards of care should be established and maintained.

Institutions under the Juvenile Justice (Care and Protection of Children) Act 2000
are corrective institutions. Children in conflict with the law in these institutions
should be provided with all the opportunities to reform and develop into
responsible citizens. The present state of the existing institutions leaves a lot to be
desired.

12UNICEF and Indian Medical Association. Child Sexual Abuse: Prevention and Response. Information for
Doctors and Health Care Professionals (2015)
13. National Commission for Protection of Child Rights (NCPCR). Eliminating Corporal Punishment in
Schools

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CONCLUSION

There are many problems related to child abuse which need to be addressed, because
it is spreading all around the world. The negative effect of abuse will continue in child
life until someone help. To prevent child from abuse is not only of parents but with
the support of teachers, caretakers, or society we can help the child from being
abused. It is important to remind society, teacher, or caretaker that the child abuse is
the biggest problem to child life. We have the responsibility to provide support and
protect to the children. As many organizations such as NGOs, WHO and other are
supporting and protecting the victim of child abuse. If the problems are disturbed
among all society, teachers, parents, or caretaker prevention will progress, then risk of
child abuse lowers. By implementing the solution and working together we can help
the children have better lives.

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BIBLIOGRAPHY

 World Health Organization (1999): Report of the Consultation on Child Abuse

Prevention; Geneva,
http://www.who.int/violence_injury_prevention/violence/neglect/en/
 Pinheiro, P. S. (2006): World Report on Violence against Children; United
Nations Secretary-General's-Study on Violence against Children; United
Nations, New York http://www.violencestudy.org/r25
 International Society for Prevention of Child Abuse and Neglect (2006):
World Perspectives on Child Abuse, Sixth Edition, http://www.ispcan.org
 Sen, S & Nair P. M. (2005): Trafficking in Women and Children in India;
Orient Longman Pvt. Ltd., New Delhi
 Human Rights Watch, Street Children, http://hrw.org/children/street.html

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