CHAPTER 8

LEGISLATIONS AND LAWS RELATED TO

CHILD SEXUAL ABUSE

8.1 INTRODUCTION

‘While the legislation has been with the best of intentions, it has been criticized for
its unprofessional and trady drafting, its implementation, also, has been piecemeal’
Prof. Ved Kumari 311
Many policies and legislations to favour Child Protection and Child Rights have

developed since Independence. The development of Child’s right movement in the

international face has laid down the basis for the enactment of various legislations to

address the issue relating to child rights and their protection. Being a signatory to

various instruments, it becomes the duty of the legislature to enact necessary laws and

formulate and implement necessary policies for the protection and promotion of the

rights of the disabled. The South Asia Consultation was designed to assess and

reaffirm government commitments and to discuss lessons learned since the First

World Congress against Commercial Sexual Exploitation of Children, held in

Stockholm in August 1996. As participants in the Stockholm Congress, Bangladesh,

India, Nepal, Pakistan and Sri Lanka all adopted the Stockholm Agenda for Action.

The South Asia Consultation provided an opportunity to reinforce partnerships with

media, civil society and governments to address sexual exploitation of children and

child sexual abuse. A major achievement of the Consultation was the active

participation of children and young adults from throughout South Asia in all aspects

of the meeting. The South Asia Strategy adopted at the Consultation will be presented

at the Second World Congress against Commercial Sexual Exploitation of Children.

311
Professor Delhi University, Delhi.
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The First World Congress against commercial sexual exploitation of children was the

culmination of a global mobilisation against the commercial sexual exploitation of

children that began in 1994 when the End Child Prostitution, Child Pornography and

Trafficking of Children for Sexual Purposes (ECPAT) Campaign proposed holding a

World Congress. The present chapter would give an overview of the legal provisions

and national policies relating to child rights.

8.2 INTERNATIONAL LEGAL FRAMEWORK

 The Convention on Child Right 1989

India has ratified the CRC, Article 35 of which stipulates that ‘States Parties shall take

all appropriate national, bilateral and multilateral measures to prevent the abduction

of, the sale of or traffic in children for any purpose or in any form’. In addition,

Article 11(1) provides that ‘States Parties shall take measures to combat the illicit

transfer and non return of children abroad’. To the extent that trafficking in children

may be conducted for the purposes of sexual exploitation, Article 34 of the CRC also

requires States Parties to take all appropriate national, bilateral and multilateral

measures to prevent children (i) being induced or coerced into lawful sexual activity;

(ii) the exploitative use of children in prostitution and other unlawful sexual practices;

and (iii) the exploitative use of children in pornographic performances and materials.

 The Optional Protocol to the Convention on the Rights of the Child on

the Sale of Children, Child Prostitution and Child Pornography

India has also ratified the Optional Protocol to the Convention on the Rights of the

Child on the sale of children, child prostitution and child pornography 312.For the

312
Signed on 15 November 2004 and ratified on 16 August 2005.
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purposes of the Optional Protocol, Article 2(a) specifies that ‘sale of children’ means

‘any act or transaction whereby a child is transferred by any person or group of

persons to another for remuneration or any other consideration’. In the context of the

sale of children, the Optional Protocol requires States Parties to ensure that their

criminal law ‘fully covers’ offering, delivering or accepting a child for the purpose of

sexual exploitation, transfer of organs of the child for profit, or engagement of the

child in forced labour 313. It also requires that States Parties criminalize the improper

inducement of consent for adoption of a child in violation of the applicable

international legal instruments on adoption 314.

 Convention on Elimination of Discrimination Against Woman

(CEDAW)

In relation to the trafficking of girls in particular, India has ratified CEDAW which,

under Article 6, requires it to take ‘all appropriate measures, including legislation, to

suppress all forms of traffic in women and exploitation of prostitution of women’. It 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.

 United Nations Convention on the Rights of the Child, 1989

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

313
Article 3(a)(i).
314
Article 3(a)(ii)
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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.

A convention which states that in all actions concerning children, whether undertaken

by public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a primary

consideration and appropriate legislative, administrative, social and educational

measures are taken to protect the child from all forms of physical or mental violence,

injury or abuse, neglect or negligent treatment, maltreatment or exploitation,

including sexual abuse, while in the care of parent(s), legal guardian(s) or any other

person who has the care of the child . India ratified the UNCRC in 1992.

 Saarc Convention on Prevention and Combating Trafficking in Women

and Children for Prostitution (2002)

At the regional level, India is a party to the South Asian Association for Regional

Cooperation (SAARC) Convention on Preventing and Combating Trafficking in

Women and Children for Prostitution. The Convention aims to promote cooperation

amongst member states in dealing with various aspects of prevention, detection and

suppression of trafficking in women and children; repatriation and rehabilitation of

victims of trafficking, and; preventing the use of women and children in international

prostitution networks, particularly where the SAARC member states (Bangladesh,

Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka) are the countries of origin,

transit and destination 315. Under Article 3(1) India is required to ‘take effective

measures to ensure that trafficking in any form is an offence under [its] criminal law

315
S Sen and PM Nair, Trafficking in Women and Children in India (2005) 188-189.
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and shall make such an offence punishable by appropriate penalties which take into

account its grave nature’.

However, the Convention has been criticized for its narrow definition of trafficking

(which it limits to the context of prostitution), and also because it fails to adequately

account for the differing needs of women and child victims of trafficking 316.

In addition to the key international instruments listed above, India has also ratified a

number of other treaties and conventions which deal with issues often linked to

trafficking, such as forced labor and debt bondage, prostitution and forced

marriage. 317Emphasizes 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.

 SAARC Convention on Regional arrangements on the Promotion of

Child Welfare in South Asia (2002)

Which recognizes survival, protection, development and participatory rights of the

child as a vital pre-requisite, and promotes solidarity, cooperation and collective

action between SAARC countries in the area of child rights.

 UN Standard Minimum Rules for the Administration of Juvenile Justice

(The Beijing Rules), 1985

Which endeavour to provide a stabilizing environment to a juvenile and a juvenile in

conflict with the law so as to reduce and reform delinquent behaviour.

316
S Sen and PM Nair, A Report on Trafficking in Women and Children in India 2002-2003, Volume
1,Instituteof Social Sciences, National Human Rights Commission and UNIFEM (2004) 236. Available
at <http://nhrc.nic.in/Documents/ReportonTrafficking.pdf>.
317
For an overview of these treaties and conventions, see Sen and Nair, above n 234, 186-188.
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TREATIES NOT RATIFIED BY INDIA

India has signed, but not ratified, the Protocol to Prevent, Suppress and Punish

Trafficking in Persons, Especially Women and Children, supplementing the United

Nations Convention against Transnational Organized Crime. The Trafficking

Protocol, as it is known, requires that states take measures to prevent and combat

trafficking (Article 9); provide compensation and privacy protection to victims of

trafficking (Article 6) and facilitate their repatriation (Article 8), and; strengthen

border control measures to prevent and detect trafficking (Article 11).

8.3 LEGAL PROVISIONS IN INDIA

Legal action began to become more prevalent in the 1970s with the enactment of the

Child Abuse Prevention and Treatment in 1974 in conjunction with the creation of the

National Centre for Child Abuse and Neglect. Since the creation of the Child Abuse

and Treatment Act, reported child abuse cases have increased dramatically. Finally,

the National Abuse Coalition was created in 1979 to create pressure in congress to

create more sexual abuse laws. In 1986, Congress passed the Child Abuse Victim’s

Rights Act, giving children a civil claim in sexual abuse cases. The number of laws

created in the 1980s and 1990s began to create greater prosecution and detention of

child sexual abusers. During the 1970s, a large transition began in the legislature,

relating to child sexual abuse. Megan’s Law which was enacted in 2004 gives the

public access to knowledge of sex offenders nationwide.

8.3.1 CONSTITUTIONAL PROVISIONS

The rights of children and their aspiration are of paramount importance in our march

towards an inclusive and equitable society. The Constitution of India recognized the

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vulnerable position of children and their right to protection. Therefore, Constitution of

India contains provision for survival, development and protection of children. These

are included both in Part III and Part IV of the Constitution pertaining to

‘Fundamental Rights and ‘Directive Principles of State Policy’, important among

there are Article 14, 15(3), 21A, 23, 24,39(f), 45 and Article 243G read with Schedule

11. Equally, the children have the right to equality of opportunity, dignity and care,

protection and rehabilitation by the society with both hands open to bring them into

the mainstream of social life without pre-stigma affixed on them f or no fault of

his/her.

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 (3) Nothing in this article shall prevent the State from making any special

provision for women and children

Article 21A. The State shall provide free and compulsory education to all children of

the age of six to fourteen years in such manner as the State may, by law, determine.

Article 23. (1) Traffic in human beings and begar 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. 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-

(a) that the citizens, men and women equally, have the right to an adequate means of

livelihood;

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(b) that the ownership and control of the material resources of the community are so

distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of

wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(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

avocations 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.

Article 45. The State shall endeavour to provide, within a period of ten years from the

commencement of this Constitution, for free and compulsory education for all

children until they complete the age of fourteen years.

8.3.2 THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,

2012

Earlier the Indian penal Code was followed in case of any Sexual offence against the

children. There was no any specific legislation but now, The Protection of Children

from Sexual Offences Act, 2012 has been passed by the Lok Sabha on 22 May, 2012

after clearance from the Rajya Sabha on 10th May, 2012.

The protection of Children from Sexual offences Act 2012 has been drafted to

strengthen the legal provision for the protection of children from sexual abuse and

exploitation. For the first time, a special laws has been passed to address the issues of

sexual offences against children.

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Sexual offences are currently covered under different sections of Indian Penal Code.

The IPC does not provide for all types of sexual offences against children and, more

importantly, does not distinguish between adult and child victim.

The Protection of Children from Sexual Offences Act, 2012 defines a child as

any person below the age of 18 years and provides protection to all children under the

age of 18 years from the offences of sexual assault, sexual harassment and

pornography. These offences have been clearly defined for the first time in law. The

Act provides for stringent punishments, which have been graded as per the gravity of

the offence. The punishments range from simple to rigorous imprisonment of varying

periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of

trust or authority of child such as a member of security forces, police officer, public

servant, etc.

Punishments for Offences covered in the Act are:

 Penetrative Sexual Assault (Section 3) – Not less than seven years which

may extend to imprisonment for life, and fine (Section 4)

 Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years

which may extend to imprisonment for life, and fine (Section 6)

 Sexual Assault (Section 7) – Not less than three years which may extend to

five years, and fine (Section 8)

 Aggravated Sexual Assault (Section 9) – Not less than five years which may

extend to seven years, and fine (Section 10)

 Sexual Harassment of the Child (Section 11) – Three years and fine (Section

12)

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  Use of Child for Pornographic Purposes (Section 13) – Five years and fine

and in the event of subsequent conviction, seven years and fine (Section 14

(1))

The Act provides for the establishment of Special Courts for trial of offences under

the Act, keeping the best interest of the child as of paramount importance at every

stage of the judicial process. The Act incorporates child friendly procedures for

reporting, recording of evidence, investigation and trial of offences. These include:

 Recording the statement of the child at the residence of the child or at the place of

his choice, preferably by a woman police officer not below the rank of sub-

inspector

 No child to be detained in the police station in the night for any reason.

 Police officer to not be in uniform while recording the statement of the child

 The statement of the child to be recorded as spoken by the child

 Assistance of an interpreter or translator or an expert as per the need of the child

 Assistance of special educator or any person familiar with the manner of

communication of the child in case child is disabled

 Medical examination of the child to be conducted in the presence of the parent of

the child or any other person in whom the child has trust or confidence.

 In case the victim is a girl child, the medical examination shall be conducted by a

woman doctor.

 Frequent breaks for the child during trial

 Child not to be called repeatedly to testify

 No aggressive questioning or character assassination of the child

 In-camera trial of cases

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The Act recognizes that the intent to commit an offence, even when unsuccessful for

whatever reason, needs to be penalized. The attempt to commit an offence under the

Act has been made liable for punishment for upto half the punishment prescribed for

the commission of the offence.

The Act also provides for punishment for abetment of the offence, which is the same

as for the commission of the offence. This would cover trafficking of children for

sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative

Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of

proof is shifted on the accused. This provision has been made keeping in view the

greater vulnerability and innocence of children. At the same time, to prevent misuse

of the law, punishment has been provided for making false complaint or proving false

information with malicious intent. Such punishment has been kept relatively light (six

months) to encourage reporting. If false complaint is made against a child,

punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the

permission of the Special Court. The punishment for breaching this provision by

media may be from six months to one year.

For speedy trial, the Act provides for the evidence of the child to be recorded within a

period of 30 days. Also, the Special Court is to complete the trial within a period of

one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is

made to the Special Juvenile Police Unit (SJPU) or local police, these will make

immediate arrangements to give the child, care and protection such as admitting the

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child into shelter home or to the nearest hospital within twenty-four hours of the

report. The SJPU or the local police are also required to report the matter to the Child

Welfare Committee within 24 hours of recording the complaint, for long term

rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness

through media including the television, radio and the print media at regular intervals

to make the general public, children as well as their parents and guardians aware of

the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) and State

Commissions for the Protection of Child Rights (SCPCRs) have been made the

designated authority to monitor the implementation of the Act.

PROCEDURE UNDER THE POCSO ACT

1. Medical Examination of the Child

A medical examination of a child can be conducted even before a FIR is filed or a

complaint is registered. It must be conducted by a registered medical practitioner

in a government hospital or a hospital run by a local authority within 24 hours

from the time of receiving information about the commission of offence. If such

practitioner is not available, the examination can be conducted by any other

registered medical practitioner with the consent of the child or a person competent

to give consent on his or her behalf. If the victim is a girl child, the examination

must be conducted by a woman doctor. The medical examination must be

conducted in the presence of the parent or any other person in whom the child

reposes trust or confidence. If a parent or such other person cannot be present, for

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 any reason, the medical examination must be conducted in the presence of a

woman nominated by the head of the medical institution.

2. Reporting of Cases

Who can report?

Any person (including the child) who has an apprehension that an offence under the

POCSO Act is likely to be committed or has knowledge that an offence has been

committed has a mandatory obligation to report the matter. An express obligation has

also been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs,

studios, or photographic facilities, to report a case if they come across materials or

objects that are sexually exploitative of children.

Failure to report is punishable with imprisonment of upto six months or fine or both.

This penalty is, however, not applicable to a child.

Whom should the case be reported do?

A case must be reported to the Special Juvenile Police Unit (SJPU) or the local police.

The police or the SJPU must then record the report in writing, ascribe an entry

number, read the report over to the informant for verification, and enter it in a book. A

FIR must be registered and its copy must be handed to the informant free of charge.

Language of the report

If a case is reported by a child, it must be recorded in simple language so that the

child understands what is being recorded. If it is being recorded in a language that the

child does not understand, a qualified translator or interpreter must be provided to the

child.

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ENSURING CARE AND PROTECTION OF THE CHILD

The police or the SJPU must take the following steps within 24 hours of the report of

the case:

• Upon recording the case, if the police or SJPU is satisfied that the child is in

need of care and protection, it must record its reasons in writing and

immediately arrange to give the child necessary care and protection. This

would include admitting the child into a shelter home or to the nearest

hospital. The police must produce the child before the CWC if the child is

found to be in need of care and protection or has no parental support.

• If the medical examination was not conducted prior to reporting the case, it

must be done in accordance with Section 164A of the Code of Criminal

Procedure. Samples must be collected for the purpose of the forensic tests and

sent to the forensic laboratory at the earliest.

• If the child is in need of urgent medical care and protection, she or he must be

taken for emergency medical care to the nearest hospital or medical care

facility centre. Such care should be administered in the presence of the

parent/guardian/other person in whom the child has trust and confidence. A

medical practitioner, hospital or medical facility centre providing such

emergency medical care cannot demand legal or magisterial requisition or

documentation before providing such care.

• The police or the SJPU must report the matter to the CWC and the Special

Court and also indicate the steps taken to extend care and protection to the

child. If a Special Court has not been designated the matter must then be

reported to the Sessions Court.

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ROLE OF THE CWC

The CWC’s role in matters under the POCSO Act is as follows:

• Upon receiving a report from the police or the SJPU stating that the child

against whom an offence has been committed is a child in need of care and

protection, the CWC must utilize its powers under the Juvenile Justice (Care

and Protection) of Children Act, 2000 to determine within three days as to

whether a child should be taken out of the custody of his family or shared

household and placed in a children’s home or shelter home. The child and his

parent/guardian/other person whom the child trusts and with whom the child

has been living must be informed that such a process is underway. The CWC

must take into account the opinion or preference of the child along with the

best interests of the child while making this determination. The capacity of the

parents/parent/other person whom the child trusts to provide for the immediate

care and protection needs of the child, the need for the child to remain with

parent/family/extended family, child’s age and level of maturity, gender,

social and economic background, disability (if any), history of family

violence, and other factors must be considered by the CWC.

• In all cases under the Act reported to it by the police or the SJPU, the CWC

can provide a support person to assist the child during the investigation and

trial of the case with the consent of the child or the child’s

parent/guardian/other person in whom the child has trust or confidence. The

support person could be a person or an organisation working in the field of

child rights or child protection, or an official of a children’s home or shelter

home having custody of the child, or a person employed by the DCPU. The

child and his/her family can, however, seek assistance from any person or

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 organisation of their choice. Upon their request, the CWC can even terminate

the services of the support person assigned to them.

VITAL INFORMATION THAT MUST BE PROVIDED TO THE CHILD

The police or the SJPU must inform the child and his or her parent, guardian, support

person, or other person whom the child trusts about the following:

• Availability of support services including counselling. If required, they must

also assist in connecting the child and his or her family to persons providing

support services.

• Child’s right to legal aid and legal representation.

• Developments, including the arrest of the accused, applications filed, and

court proceedings.

• Availability of public and private emergency and crisis services.

• Procedural steps involved in a criminal prosecution.

• Availability of victims’ compensation benefits.

• Status of the investigation of the crime, to the extent it is appropriate to inform

the victim and to the extent that it will not interfere with the investigation.

• Filing of charges against a suspected offender.

• Schedule of court proceedings that the child is either required to attend or is

entitled to attend.

• Bail, release or detention status of an offender or suspected offender.

• Rendering of a verdict after trial.

• Sentence imposed on an offender.

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RECORDING STATEMENT OF THE CHILD

A. Recording of statement by the police

Where the child’s statement must be recorded?

A child’s statement must be recorded at his or her residence or a place where he or

she usually resides or at a place of his or her choice. Under no circumstances can a

child be detained in the police station in the night. The police officer must also try and

ensure that the statement is recorded by audio-visual means.

By whom should the statement be recorded?

As far as practicable, the statement must be recorded by a woman police officer not

below the rank of a sub-inspector. She should not be in uniform when the statement is

recorded. The assistance of a qualified translator or interpreter can be taken while

recording the statement. The statement must be recorded in the presence of parents or

any other person in whom the child trusts or has confidence.

What steps must the police take to protect the child?

While examining the child, the police officer investigating the case must ensure that

the child does not come in contact with the accused at any point. The identity of the

child must also be protected from the media unless the Special Court, in the interest of

the child, directs otherwise.

What measures must be taken to record the statement of a child with disabilities?

The police officer must seek the assistance of a qualified special educator or a person

familiar with the manner of communication of the child or an expert in that field,

while recording the statement of a child with mental or physical disability.

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RECORDING OF STATEMENT BY THE MAGISTRATE

How must the statement be recorded?

A Magistrate recording the statement of a child under Section 164 of the Code of

Criminal Procedure (CrPC) must record it in the exact language spoken by the child.

The statement must be recorded in the presence of parents or any other person in

whom the child trusts or has confidence. The assistance of a qualified translator or

interpreter can be taken while recording the statement. The Magistrate must also try

and ensure that the statement is recorded by audio-visual means. The Magistrate must

also provide the child and his or her parents or representative, a copy of the police

report on the matter.

What measures must be taken to record the statement of a child with disabilities?

The Magistrate must seek the assistance of a qualified special educator or a person

familiar with the manner of communication of the child or an expert in that field,

while recording the statement of a child with mental or physical disability.

TRIAL BEFORE THE SPECIAL COURT

All trials before the Special Court must be conducted in camera and in the presence of

the parents of the child or any other person the child trusts.

Examination, cross-examination, and re-examination

In the course of recording the examination-in-chief, cross-examination or re-

examination, all questions to the child by the Special Public Prosecutor or the counsel

for the accused must be communicated to the Special Court which must then put the

questions to the child.

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Recording of Evidence

The evidence of the child must be recorded within 30 days of the Special Court

having taken cognizance of the offence. If it is delayed, reasons will have to be

recorded by the Special Court explaining the delay. At the time of recording evidence,

the Special Court will have to ensure that the child is not exposed to the accused and

also that the accused is in a position to hear the statement of the child and

communicate with his advocate. This can be done by recording the evidence through

video-conferencing or by using single visibility mirrors or curtains. Assistance of a

qualified translator or interpreter or special educator can be sought while recording

the evidence of a child including a child with mental or physical disability.

Responsibilities of the Special Court

The Special Court must take the following measures while conducting the trial under

the Act:

• If required, permit frequent breaks for the child during the trial.

• Create a child-friendly atmosphere by allowing a family member, a guardian,

a friend or a relative, in whom the child has trust or confidence, to be present

in the court.

• Ensure that the child is not called repeatedly to testify in court.

• Not allow aggressive questioning or character assassination of the child and

ensure that dignity of the child is maintained at all times.

• Ensure that the identity of the child is not disclosed at any time during the

course of investigation or trial. Such disclosure can be permitted it is in the

interest of the child after reasons are recorded in writing.

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 • Ensure that trial is completed, as far as possible, within one year from the date

of taking cognizance of the offence.

The Special Court can also order interim compensation to meet the immediate needs

of the child for relief and rehabilitation at any stage after registration of the FIR. Such

an order can be passed based on an application by or behalf of the victim or by the

court on its own. It can also recommend the award of compensation if the child has

suffered loss or injury and where the accused is convicted, discharged, acquitted, or is

not traceable or identifiable. The compensation awarded is payable by the State

Government from the Victims Compensation Fund or other schemes or funds

established for the purpose of compensating and rehabilitating victims under Section

357A of the CrPC. Such compensation is payable within 30 days of the receipt of the

order.

ROLE OF COMMISSIONS FOR PROTECTION OF CHILD RIGHTS

Under the POCSO Act, the National Commission for Protection of Child Rights and

the State Commissions for Protection of Child Rights have been vested with the

responsibilities of:

a) Monitoring the implementation of the provisions of the POCSO Act 2012, as per

the prescribed Rules.

b) Conduct inquiries into matters relating to an offence under the Act

c) Reporting the activities undertaken under the POCSO Act 2012, in its Annual

Report

The Commissions must monitor the designation of Special Courts, appointment of

Public Prosecutors, formulation of guidelines for use of NGOs, professionals and

experts to be associated with the pre-trial and trial stage, dissemination of information
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about the Act through media to promote awareness among general public, children,

parents and guardians.

The Commissions can also call for a report on any specific case of child sexual abuse

falling within the jurisdiction of a CWC. While inquiring into matters relating to an

offence under the Act, they can utilize the powers available to them under the

Commissions for Protection of Child Rights Act, 2005. Post-inquiry, they can

recommend to the government to initiate proceedings for prosecution, recommend

interim relief, or make any other recommendations to effectively redress the matter.

They can also approach the High Court or Supreme Court for orders, directions, or

writs.

CHALLENGES FACED BY THE POCSO ACT:

POCSO can become effective only if a police complaint is lodged reporting a child

sex abuse instance. POCSO furnishes particularized instructions about the

safeguarding of the victim’s identity. The Act further construes in minute detail how

the statement of such a victim should be extracted, without causing further trauma to

an already deranged child. The act further defines legal guidelines to be adhered to, in

the event of a court hearing, for the said offense. Still numerous bottlenecks exist in

the successful implementation of the Act. The police, for one, are inept in handling

the delicacies involved in such offenses, due to lack of proper training.

A child who has been a victim of a sexual assault has probably underwent the most

traumatizing experience of his life which is likely to damage the mental health of the

child irreparably. Under such circumstances, not only the victim but also the family of

the victim is in the imperative need of psychological treatment as well as support on

societal issues. But given the fund starved, rickety infrastructure of the psychosocial

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services in our country, the victim and his/her family can expect very little from the

government sponsored said services.

Also a successful implementation of the POCSO requires the State Governments to

furnish explicit codes and principles that need to be strictly adhered to by the medical

and healthcare professionals and the other officials involved in the child sex abuse

cases, before the trial, during the trial and also after the trial. But no such concerted

efforts have been taken so far.

Whereas the POCSO repeatedly mandates the necessity of extensive training

programs for the police and other legal authorities, handling child sex abuse cases,

such programs are almost non – existent. While the Act also mandates the

Government to create maximum and consistent publicity for POCSO, using the

various forms of media in order to spread awareness regarding the stipulations of the

Act, such measures remain stagnated at the theoretical stage.

With more than 4000 recorded accounts, child sex abuse is a much studied topic

pertaining to researches for the mental and social health of our country. It is,

therefore, necessary for organizations like the Indian Psychiatric Society to be

proactive in extending their cooperation in child sex abuse cases, which can make the

Act functional in the true sense.

THE HIGH COURT VERDICT IN FAVOR OF THE POCSO ACT:

The ground – breaking verdict of the High Court, instructing the States of Punjab,

Haryana and Chandigarh on April 9th, 2013, to constitute fully functional State

Commissions for the implementation of the Protection of the Child Rights, came as a

result of an appeal filed by the National Commission for Protection of Child Rights

257
(NCPCR). Such Commissions are to be spearheaded by an ex – Judge of the High

Court, while the rest of the members are to be chosen following a candid naming

procedure. Proper registration of the children homes, envisagement of child courts,

assignation of ‘special public prosecuting counsel’ and constituting a special counsel

for the appointment of the different members, pertaining to the various child welfare

committees, were also made compulsory by the High Court verdict. The Court order

also includes that, the National and State Commissions will start to exert the POCSO

stated stipulations and training programs to be instituted by the Chandigarh Judicial

Academy to ensure proper education of all the individuals associated with child abuse

cases and legal procedures of the Children’s Court.

GUIDELINES UNDER THE POCSO ACT 318

General Principles for use of Professionals and Experts Assisting the Child at

Pre-trial and Trial Stages

The fundamental principles to be followed in the determination of a case involving a

sexual offence against a child have been laid down in various international

instruments and in the Preamble to the POCSO Act, 2012 itself. The State

Governments, the Child Welfare Committee, the Police, the Special Courts, all other

Government functionaries as well as Non-Government Organizations, and all

professionals and experts assisting the child at the trial and pre-trial stages are bound

to abide by these principles.

These principles are –

a) Right to life and survival -Every child has the right to life and survival and to be

shielded from any form of hardship, abuse or neglect, including physical,

318
‘Ministry of women and child development’ Available at www.wcd.nic.in.
258
psychological, mental and emotional abuse and neglect; and to a chance for

harmonious development and a standard of living adequate for physical, mental,

spiritual, moral and social growth. In the case of a child who has been traumatized,

every step should be taken to enable the child to enjoy healthy development.

b) The best interests of the child - Every child has the right to have his/her best

interests’ given primary consideration. This includes the right to protection and to a

chance for harmonious development. Protecting the child’s best interests means not

only protecting the child from secondary victimization and hardship while involved in

the justice process as victim or witness, but also enhancing the child’s capacity to

contribute to that process. Secondary victimization refers to the victimization that

occurs not as a direct result of the criminal act but through the response of institutions

and individuals to the victim.

c) The right to be treated with dignity and compassion - Child victims should be

treated in a caring and sensitive manner throughout the justice process, taking into

account their personal situation and immediate needs, age, gender, disability and level

of maturity and fully respecting their physical, mental and moral integrity.

Interference in the child’s private life should be limited to the minimum needed and

information shared on a need to know basis. Efforts should also be made to reduce the

number of professionals interviewing the child. At the same time, however, it is

important that high standards of evidence collection are maintained in order to ensure

fair and equitable outcomes of the justice process. In order to avoid further hardship

to the child, interviews, examination and other forms of investigation should be

conducted by trained professionals who proceed in a sensitive, respectful and

thorough manner in a child-friendly environment. All interactions should also take

place in a language that the child uses and understands.

259
Medical examination should be ordered only where it is necessary for the

investigation of

the case and is in the best interests of the child and it should be minimally intrusive.

d) The right to be protected from discrimination - The justice process and support

services available to child victims and witnesses and their families should be sensitive

to the child’s age, wishes, understanding, gender, sexual orientation, ethnic, cultural,

religious, linguistic and social background, caste and socio-economic condition, as

well as to the special needs of the child, including health, abilities and capacities.

Professionals should be trained and educated about such differences. Age should not

be a barrier to a child’s right to participate fully in the justice process. Every child

should be treated as a capable witness, according to his/her age and level of maturity.

e) The right to special preventive measures – Children may already face twice as

much risk of repeated victimization as adults because they often are or are perceived

by a potential offender as being vulnerable, unsure of how to defend themselves or

unable to properly assert themselves and take a strong position against an adult. A

preventive measure that could be used to protect children is to demand references and

a criminal background assessment before hiring personnel likely to work with

children, such as schoolteachers.

f) The right to be informed - There are two aspects of child victims‟ and

witnesses‟ right to be inform ed. T he first aspect is the m ore general one and consists

of informing child victims and witnesses about the assistance they are entitled to, the

way legal proceedings are organized and the role they can play in those proceedings if

they decide to do so. The second aspect is more specific and relates to information on

the particular case in which the child is involved: it implies being informed about the

260
progress of the case, about the scheduling of the proceedings, about what is expected

of the child, about the decisions rendered, about the status of the offender, and so

forth.

g) The right to be heard and to express views and concerns–Every child has the

right to be heard in respect of matters affecting him/her. The child has a right to

participate at all levels: being informed, expressing an informed view, having that

view taken into account, and being the main or joint decision maker. When, for any

good reason, the requirements and expectations of the child cannot be met, it needs to

be explained to the child, in a child-friendly way, why certain decisions are made,

why certain elements or facts are or are not discussed or questioned in Court and why

certain views are not taken into consideration. It is important to show respect for

elements that a child finds important in his/her story, but which are not necessarily

relevant as evidence.

h) The right to effective assistance–The child must receive the required assistance to

address his/her needs and enable him/her to participate effectively at all stages of the

justice process. This may include assistance and support services such as financial,

legal, Counseling, health, social and educational services, physical and psychological

recovery services and other services necessary for the child’s healing, as well as for

justice and reintegration.

i) The right to privacy–The child’s privacy and identity must be protected at all

stages of the pre-trial and trial process. The release of information about a child

victim or witness, in particular in the media, may endanger the child’s safety, because

the child intense shame and humiliation, discourage him from telling what happened

and cause him severe emotional harm. Release of information about a child victim or

witness may put a strain on the relationships of the child with family, peers and
261
community, especially in cases of sexual abuse. In some cases it might also lead to

stigmatization by the community, thereby aggravating secondary victimization of the

child. There are two essential ways of protecting the privacy of child victims and

witnesses: firstly, by restricting the disclosure of information on child victims and

witnesses and secondly, by restricting the attendance of the general public or non-

essential persons in courtrooms.

j) The right to be protected from hardship during the justice process -

Throughout the justice process, child victims are exposed to hardship, also referred to

as secondary victimization: this can occur while reporting the crime and recounting

what has happened, while awaiting trial and while testifying in court. The judicial

process is a very stressful one for the child; as far as possible, any stress the child may

have as a result of the process should be minimized.

k) The right to safety - Where the safety of a child victim may be at risk, appropriate

measures should be taken to require the reporting of those safety risks to appropriate

authorities and to protect the child from such risk before, during and after the justice

process. Professionals should be trained in recognizing and preventing intimidation,

threats and harm to child victims and witnesses. Where child victims and witnesses

may be the subject of intimidation, threats or harm, appropriate conditions should be

put in place to ensure the safety of the child.

l) The right to compensation– The child victim may be awarded compensation1 for

his/her relief and rehabilitation. This compensation may be awarded at an interim

stage, during the pendency of trial, as well as at the conclusion of the trial. Procedures

for obtaining and enforcing reparation should be readily accessible and child-

sensitive. Victims may be repaid for material losses and damages incurred, receive

medical and/or psychosocial support and obtain reparation for ongoing suffering.
262
 8.3.3 INDIAN PENAL CODE

The Indian Penal Code does not spell out the definition of child abuse as a specific

offence; nor does it offer legal remedy and punishment for ‘Child abuse’. It is through

the application of certain other provision in the IPC that a child sexual offenders is

criminalized- these are inter alia, the offence of rapes (Section 375), outraging the

modesty of a woman (section 377) and procurement of minor by inducement or by

force to seduce or have illicit intercourse (section 366-A). None of the above sections

define in legal terms what constitute Child Sexual Abuse (CSA).

1. RAPE

SECTION 375 319 – Sexual intercourse by a man with a woman is essential to

constitute ‘Rape’. The word ‘man’ denotes a male human being of any age, and the

319
'375. A man is said to commit "rape" if he-—

a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any ~ of body of such woman or makes her to do so with him or any other
person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or
any other person, under the circumstances falling under any of the following seven
descriptions:— First.—Against her will. Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes herself to be lawfully
married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome Substance, she is unable to understand the nature and consequences of that to which she
gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to participate
in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
263
word ‘female’ denotes a woman of any age. Rape of a boy victim could therefore not

fall under the purview of ‘rape’ as defined under the Penal Code.

STATUTORY RAPE

Statutory rape means rape irrespective of whether the victim had consented or not. It

is necessary that the law specifies that sexual intercourse with a child under a defined

age or a disabled child is rape, irrespective of consent. The age of statutory rape is

based on an objective assessment of what can be consider an age at which a girl is

mature enough to express consent to sexual intercourse and marriage. The subject of

statutory rape is important in connection with teenage pregnancies and sexual

offences against mentally disabled or physically disabled children. 320

The age of statutory rape in India is 16 years. In case of victim being a girl of less

than 16 years, her consent is no defence. Once it is proved that the victim is under 16

years of age, it is irrelevant that no injury was detected on her private parts, that she

was habituated to sexual intercourse, or that she had invited the accused to have

sexual intercourse with her.

The time of statutory assault in Sri Lanka was 12 years, yet it has been expanded to 16

years by the Sri Lanka Penal Code Amendment Act 1995. Sixteen is the time of

statutory assault under the law of Nepal and the Criminal law Amendment Act of

Zimbabwe. Under the Swedish Penal Code, the time of statutory assault is 15 years.

Under the British law, the time of statutory assault for a young lady is 16 years. Under

the British law, the time of statutory assault for a young lady is 16 years and that for a

kid is 18 years.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape.'.
320
www.slideshare.net/ashishnoel1/child-abuse-ppt.
264
SEXUAL ABUSE OF A BOY CHILD

Sexual intercourse between a man and a woman is essential to constitute rape. The

perpetrator of the offence should necessarily be a man and the victim should be

woman, therefore, sexual abuse of a boy child does not fall under Section 375 of the

Indian penal Code. Section 377 of the code, which deals with ‘unnatural offences’

covers sexual abuse of a boy child.

Sodomy amounts to ‘carnal intercourse against the order of nature’ as the natural

object of carnal intercourse is supposed to be the possibility of conception.

This section is gender-neutral. While it addresses the sexual abuse of boys, when the

abuse does not include penetration it escapes the ambit of the section. This means that

there is no provision in the IPC to criminalize molestation of boys. Section 377 is also

inadequate because it is not a law designed to criminalize CSA, and thus fails to cover

the majority of forms that the abuse might take. 321

Lohana Vasantlal Devchand v. State of Gujarat 322 in this case the Gujarat High

Court states that there was an entry of male penis in the mouth of the victim. There

was an enveloping of a visiting member by the visited organism. It coud, therefore be

said without any doubt that the act in question will amount to an offence under

Section 377 of the Indian Penal code.

State of kerela v. Kundumkaran Govindan 323 the High Court has held that, ‘the act

of committing intercourse between thighs is carnal intercourse against the order of the

nature. Therefore committing intercourse by inserting the male organ between the

thighs of another is an unnatural offence.

321
http://www.indialawjournal.com/volume5/issue_3/article3.html.
322
AIR 1968 Guj. 252.
323
AIR 1969 Cr.L.J 818.
265
 ATTEMPT TO RAPE

Section 511 of the Indian Penal Code provides punishment for attempting to commit

an offence punishable with the imprisonment for life or other imprisonment .

Whoever endeavors to confer an offense culpable with detainment forever, or to cause

such an offense to be conferred, and in such endeavor does any demonstrations

towards the commission of the offense, might be culpable with the detainment of any

portrayal accommodated the offense, for a term that may reach out to one- 50% of the

detainment forever or one-50% of the longest term of detainment accommodated that

offense, or both.

An endeavor to violate a young lady is culpable under Section 376 read with 511

when infiltration has not occurred.

8.3.4 OTHER PROVISIONS UNDER INDIAN PENAL CODE RELATED TO

CHILD EXPLOITATION OF SEXUAL ABUSE

The following provisions of the Indian Penal Code cover the offence of Child sexual

offence and/ or child sexual exploitation. Unfortunately, these provisions are not

applied by the police whilst raiding brothels; hence, brothel keepers, pimps and users

go scot- free. The user of a child prostitute is liable for rape under section 376 of the

Indian Penal Code, but one never hears of them being so arrested.

• Wrongful confinement for three or more days

Section 343 of the Indian Penal Code “Whoever wrongfully confines ant person for

three days or more, shall be punished with imprisonment of either description for a

term which may extend to two years or with fine, or with both”.

266
 • Kidnapping, abducting or inducing woman to compel her

marriage, etc:

Section 366 of the Indian Penal code ‘Whoever kidnaps or abducts any woman with

the intent that she may be compelled, or knowing it to be likely that she will be

compelled, to marry any person against her will, or in order that she may be forced or

seduced to illicit intercourse, or knowing it to be likely that she will be forced or

seduced to illicit intercourse, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine;

and whoever, by means of criminal intimidation as defined in this Code or of abuse of

authority or any other method of compulsion, induces any woman to go from any

place with intent that she may be, or knowing that it is likely that she will be, forced

or seduced to illicit intercourse with another person shall be punishable as aforesaid.

• Procuration of minor girl:

Section 366A Whoever, by any means whatsoever, induces any minor girl under the

age of eighteen years to go from any place or to do any act with intent that such girl

may be, or knowing that it is likely that she will be, forced or seduced to illicit

intercourse with another person shall be punishable with imprisonment which may

extend to ten years, and shall also be liable to fine.

To constitute an offence under this section, it is necessary to prove that the girl was

under 18 years of age, that the girl was induced to go from one place to another or to

do a particular act, that the accused induced the girl, and that the intention of the

accused was the forcing or seducing of the girl to illicit intercourse with another

person.

• Importation of girl from a foreign country

267
Section 366 B -“Whoever imports into India from any country outside India or from

the state of Jammu and Kashmir any girl under the age of twenty one years with intent

that she may be, or knowing it to be likely that she will be forced or seduced to illicit

intercourse with another person, shall be punishable with imprisonment which may

extend to ten years and shall also be liable to fine.

• Kidnapping or abducting in order to subject person to grievous

hurt, slavery, etc:

Section 367 of the Indian Penal code ‘Whoever kidnaps or abducts any person in

order that such person may be subjected, or may be so disposed of as to be put in

danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any

person, or knowing it to be likely that such person will be so subjected or disposed of,

shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine’.

Seizing are of two sorts under the Indian correctional Code, (1) Kidnapping from

India, i.e. passing on an individual past the breaking points of India without assent

and (2) Kidnapping from legitimate guardianship, i.e. alluring a male under 16 years

old and female under 18 years old out of the keeping of the legal gatekeeper.

Kidnapping means inciting of any individual to go from wherever by the utilization of

power or any misleading means. The wrongful confinment of an abducting of stole

individual is likewise an offense under the Indian Penal Code.

• Buying or disposing of any person as a slave

Section 370 of the Indian Penal Code ‘Whoever imports, exports, removes, buys, sells

or disposes of any person as a slave, or accepts, receives or detains against his will

any person as a slave, shall be punished with imprisonment of either description for a

term, which may extend to seven years, and shall also be liable to fine.

• Habitual dealing in slaves

268
Section 371of the Indian Penal Code ‘Whoever habitually imports, exports, removes,

buys, sells, traffics or deals in slaves, shall be punished with [imprisonment for life],

or with imprisonment of either description for a term not exceeding ten years, and

shall also be liable to fine.

• Selling minor for purposes of prostitution, etc

Section 372 of the Indian Penal Code ‘Whoever sells, lets to hire, or otherwise

disposes of any [person under the age of eighteen years with intent that such person

shall at any age be employed or used for the purpose of prostitution or illicit

intercourse with any person or for any unlawful and immoral purpose, or knowing it

to be likely that such person will at any age be] employed or used for any such

purpose, shall be punished with imprisonment of either description for a term which

may extend to ten years, and shall be liable to fine’.

• Buying minor for purposes of prostitution, etc:

Section 373 of the Indian Penal Code ‘Whoever buys, hires or otherwise obtains

possession of any person under the age of eighteen years with intent that such person

shall at any age be employed or used for the purpose of prostitution or illicit

intercourse with any person or for any unlawful and immoral purpose, of knowing it

to be likely that such person will at any age be employed or used for any purpose,

shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine’.

• Section 374 Unlawful compulsory labour:

269
Whoever unlawfully compels any person to labour against the will of that person,

shall be punished with imprisonment of either description for a term which may

extend to one year, or with fine, or with both.

8.4 OTHER SPECIAL LAWS

 THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION

ACT, 2009

While the RTE Act does not deal with the question of Child Abuse in particular, it is

evident that children must be protected in order to fully partake of a quality education

process. The Act also states that the NCPCR or SCPCR as the case may be, shall

mandatorily discharge their functions as prescribed under the Commission for

Protection of Child Rights Act, 2005 as well as certain other functions. The RTE Act

prohibits “physical, punishment” and “mental harassment” . School Management

Committees also play a important role in monitoring the school and child rights

violations by bringing to the notice of the local authority any deviation from the rights

of the child, in particular mental & physical harassment of children.

 THE IMMORAL TRAFFIC (PREVENTION) ACT 1956

The Immoral Traffic (Prevention) Act 1956 (ITPA) is the primary legislation that

deals with the problem of human trafficking in India, supplemented by the Indian

Penal Code 1860 (IPC). While the Act does not specifically define ‘trafficking’, it

addresses many of the component aspects of one major type of trafficking by

outlawing sexual exploitation and abuse of persons; running a brothel; living on the

earnings of a prostitute; procuring, inducing or taking a person for the sake of

270
prostitution, and; detaining a person for prostitution 324. In 2006 an amendment to the

Act was introduced into Parliament that would have inserted a new offence of

‘trafficking in persons’ into the Act (albeit only in the context of prostitution), but at

the time of writing the amendment had not been passed 325. The Act also confers wide

powers on the relevant authorities in matters of rescue and rehabilitation of victims of

trafficking and provides for stringent action against exploiters, including the eviction

of brothels and increased punishment where offences are committed on children.

One of the main weaknesses of the ITPA is that it has a tendency to criminalize

victims of trafficking along with their exploiters, rather than making provision for

their repatriation and rehabilitation. In other words, the Act remains restrictive and

punitive instead of being progressive and reformative. It also remains unbalanced in

the sense that while it has attempted to restrict supply of prostitution, it has failed to

address the forces which create demand. Another problem is that it does not create a

more general offence of trafficking outside the context of prostitution. However, the

Indian Penal Code 1860 (IPC) goes some way to addressing this by way of more than

20 provisions that are relevant to trafficking.

 THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT

2000

In 2000, 8 years after India’s accession to the CRC, the Government of India

overhauled the Juvenile Justice Act 1986 to ensure greater compliance with India’s

obligations under the CRC. Renamed the Juvenile Justice (Care and Protection of

Children) Act 2000 it included, among other things, several new sections relating to

324
Sections 3, 4, 5, 6, and 8 Immoral Traffic (Prevention) Act 1956.
325
Immoral Traffic (Prevention) Amendment Bill 2006, s 5A. Available at
<http://wcd.nic.in/640ls.pdf>. See also India Together, PRS Legislative Brief, Immoral Traffic
Amendment Bill. Available at <http://www.indiatogether.org/2006/oct/law-immoral.htm>
271
‘special offences’ against children. ‘Children’ are defined by the Act to be any person

under the age of 18 (s 1(k)).

The new sections include prohibitions on forcing children into hazardous employment

(s 26); employing a child to beg (s 24); providing children with intoxicating drugs or

liquor (s 25), and; assaulting, abandoning or neglecting children, or causing any of

these things to happen (s 23). The Act also establishes a framework for providing

care, protection, treatment, education, vocational training, development and

rehabilitation to vulnerable children. To assist in this, Child Welfare Committees

(CWCs) and protection homes are authorized to be established in each state (s 29).

However, the system of CWCs has reportedly been inadequate to deal with the issue

of child trafficking. The CWC in Delhi, for instance, finds it difficult to trace a child’s

family and ensure home visits that will help them decide whether or not it is

conducive to send the child back home 326.Since trafficked children are often from

rural areas that do not have a CWC, it becomes even more difficult to network with an

appropriate agency for successful restoration of victims to their families. In the case

of children trafficked for labour, the situation is even worse, as the officials of the

Ministry of Labour often tend to bypass the CWC when sending the children back to

their villages. Many of these children, as a result, are re-trafficked 327. In other words,

the mechanism set up under the Juvenile Justice Act for rehabilitation of victims of

abuse and exploitation is yet to find recognition with other Ministries as well as courts

that deal with legal cases involving trafficked victims. In many cases the regular

courts have given girls rescued from brothels to persons claiming to be their

parents/guardians/relatives without consulting the concerned CWC 328. This is despite

the Juvenile Justice Act clearly establishing the role of CWCs as statutory bodies that

326
HAQ CRC.
327
Ibid
328
Ibid
272
ought to conduct appropriate inquiries and decide on suitable rehabilitation and

repatriation of children. The juvenile justice (Care and Protection) Act, 2000 has been

amended twice: in 2006 and in 2011. More demands to amend the Act have been in

the reckoning. There was, for instance, a public outcry demanding more stringent

punishment for the prime accused, a juvenile, in Delhi gang rape case of 2012.

Besides crimes committed by juveniles, violence against them is also emerging as an

important issues which need to be redressed by strengthening the existing provisions.

Protracted inter- country adoption procedure in the existing JJ Act need urgent

legislative resolution. While personal laws allow specific communities to adopt, other

persons can become guardian only under an archaic Guardianship and Wards Act,

1890. A secular gender- neutral adoption law for all people is required 329.

In this backdrop, the government of India is now contemplating re- enacting a new JJ

Act 2014, for which a review committee has been constituted under the Ministry of

Women and Child Development. The baton has been passed on to Parliament to enact

a new law. The JJ Bill, 2014 seeks to enact a law by consolidating and amending the

law relating to children who are in need of care and protection. It seeks to cater to

their development need through proper care, protection and treatment by adopting a

child friendly approach in the adjudication and disposal of matters, and for

rehabilitation through processes provided and institutions established under the

proposed new enactment 330.

The Women and Child Development Ministry has posted on its website a proposed

draft of The Juvenile Justice (Care and Protection of Children) Bill, 2014, suggesting

broad amendments. The draft states that the increase in reported incidents of abuse of

children needs urgent legislative action; that there are inadequate facilities, quality of

329
‘Toward a comprehensive Juvenile Justice Law’ The Hindu 18 July 2014.
330
Ibid
273
care and rehabilitation measures in private and government-run children homes;

delays in various processes under the JJ Act; delays in inter-country adoption process

under CARA; and inadequate provisions to deal with offences against children,

among others 331.

The draft incorporates the principles of the Hague Convention on Protection of

Children and Cooperation in Respect of Inter-Country Adoption (1993) which was

absent in the original JJ Act, 2000. The new JJ Bill, 2014, provides for application of

the proposed Act in: cases involving detention, prosecution or penalty of

imprisonment; matters relating to apprehension, production before court, disposal

orders and restoration, procedures and decisions related to adoption of children, and

rehabilitation and reintegration of children who are in conflict with law or, as the case

may be, in need of care and protection under other such law.

The word ‘juvenile’ has been replaced with the word ‘child’ and the expression

‘juvenile in conflict with the law’ has been changed to ‘child in conflict with law.’

While in the JJ Act, 2000, juveniles in conflict with the law are defined as the

‘accused’, the draft Bill identifies a ‘child in conflict with law’ to be one who has

been found by the Juvenile Justice Board to have actually committed an offence. It

also defines an ‘abandoned child’ as well as ‘aftercare’. Chapter two is the most

noteworthy characteristic of the proposed Bill, providing for ‘Fundamental Principles

for Care, Protection, Rehabilitation and Justice for Children’. It incorporates

internationally accepted principles of presumption of innocence, dignity and worth,

family responsibility, non-stigmatizing semantics, privacy and confidentiality,

repatriation and restoration, equality and non-discrimination, and diversion and

natural justice, among others. Institutionalization is suggested as a measure of last

331
‘Towards a comprehensive Juvenile Justice Law’ – The Hindu 18 July 2014.
274
resort — juveniles are to institutionalized only if no other family-based care option is

possible or available.

A new procedure for handling children in conflict with law has been proposed. A

revamped Child Welfare Committee has been identified, empowered and given

statutory functions. Mandatory registration of childcare institutions has been

provided. Observation, shelter and special homes may be established by State

governments.

CARA has been made a statutory body vested with functions of in-country and inter-

country adoptions. Section 58 of the draft Bill lays down special emphasis on inter-

country adoptions, stating that all applications for adoption shall be filed before a

Principal Magistrate of the concerned jurisdiction where the registered adoption

agency is located.

However, the proposed provision for adoption orders to be passed by the Principal

Magistrate on the first date of hearing itself, or within a period of two weeks, failing

which it will be construed by the higher authority of the Principal Magistrate, “as

dereliction of duty”, does not seem to be practical for actual implementation. Judicial

proceedings have to be regulated by the Code of Civil Procedure and no fast-track

procedure that bypasses rules of evidence can be proposed in contravention of law.

Likewise, transgenders need adoption rights. The JJ Bill must encompass these

issues 332.

The proposed Bill also prohibits the media from disclosing the identity of children or

propagating any such information which would lead to identifying them. All reports

relating to children are to be treated as confidential. Corporal punishment and ragging,

332
‘Towards a comprehensive Juvenile Justice Law’ – The Hindu 18 July 2014.
275
cruelty to children, employment of children for begging, adoption without proper

procedure, and sale or procurement of children for any purpose are all acts that are

punishable under the draft Bill.

The draft Bill therefore provides a comprehensive mechanism to deal with children in

conflict with law as well as children who are in need of care and protection. However,

only a stringent implementation can provide a meaningful disposition to make it a true

letter of law 333.

OTHER ACTS FOR THE PROTECTION OF CHILD

- The Prohibition of Child Marriage Act 2006

It attempts to address the issue of child trafficking and child marriage by making any

involvement in the promotion of child marriage a punishable offence (s 11), and by

making a child marriage null and void if the child is married either before or after

having been trafficked (s 12(b) and (c)).

- The Bonded Labour System (Abolition) Act, 1976

An Act to provide for the abolition of bonded labour system with a view to

preventing the economic and physical exploitation of the weaker sections of the

people and for matters connected therewith or incidental thereto.

- The Immoral Traffic (Prevention) Act, 1956

Defines prostitution as “the sexual exploitation or abuse of persons for commercial

purposes”. The ITPA does not contain a definition of child prostitution, which is an

important legal loophole. The ITPA criminalizes the act of selling, procuring and

exploiting any person for prostitution but does not specify offences relating to child

333
Ibid.
276
 prostitution. However, the punishment may be more severe if crimes are committed

against a child under 16 or a minor under 18.

- The Commissions for the Protection of Child Rights Act, 2005

Provides for the Constitution of National and State Commissions 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;

- Inquire into violations of child rights and recommend initiation of

proceedings where necessary;

- Spread awareness about child rights among various sections of society;

- Help in establishment of Children's Courts for speedy trial of offences against

children or of violation of Child Rights.

8.5 POLICIES AND PROGRAMMES

UNICEF POLICIES

• UNICEF is guided by the Convention on the Rights of the Child (CRC), which has

been ratified by all countries except the US and Somalia. Articles 9 and 10 of the

CRC state that a child must not be separated from his or her parents against their will,

except where it is in the best interests of the child. Article 11 commits States to

combat the illicit transfer of children abroad. Article 35 asks States to adopt

appropriate national, bilateral and multilateral measures to prevent the abduction,

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 sale or trafficking of children for any purpose or in any form. For children who do

not live with their parents, Articles 20 and 21 declare the best interests of the child to

be paramount, and note the desirability of continuing the child's ethnic, religious,

cultural and linguistic background. Article 21 provides that international adoption

must not involve "improper financial gain".

• Articles 32, 34, 36 and 39, which provide for protection against economic, sexual and

all other forms of exploitation, and the child's right to physical and psychological

recovery and social reintegration, are also relevant to the protection of child victims

of trafficking.

• The UNICEF strategy for addressing child trafficking focuses on four main areas:

raising awareness about the problem;

providing economic support to families;

improving access to and quality of education;

advocating for the rights of the child.

• Measures aimed at preventing the trafficking of children include increased

educational opportunities for disadvantaged children, particularly girls; support to

families at risk, appropriate social welfare, training of law enforcement officials and

judicial authorities. It is also essential to raise awareness of the media, communities

and families on the rights of child victims of any form of trafficking.

• A proposed Optional Protocol to the CRC would reinforce the protection offered to

children who are at risk of or exposed to sexual abuse, exploitation and trafficking.

• UNICEF holds that any new policy on trafficking must build on standards already

adopted by the international community, including the CRC.

• UNICEF provides input to the Office of the High Commission on Human Rights

(OHCHR) "Project Against Trafficking in Persons".

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• A proposed UN Convention on Transnational Organised Crime is now being drafted

with a special protocol on trafficking. UNICEF has emphasized the importance of not

criminalizing the victims of trafficking; children, who are the victims, must be

protected. Similarly, where children are trafficked, particularly when they find

themselves in an unfamiliar country, the first priority must be to treat them in an

environment which fosters the health, self respect and dignity of the child (as

outlined in the CRC).

• Child victims of any form of trafficking require special protection and need to be

treated with respect and in a manner consistent with their age and special needs. They

are entitled to legal protection and to help integrating back into their communities.

• If children are used as witnesses, officials should secure their testimony in a manner

that does not re-traumatize them and ensures their protection throughout the criminal

proceedings and beyond as necessary.

• States should ensure that parents are provided with the necessary legal aid and

financial assistance for a child's participation in legal proceedings.

• States should ensure that child victims have access to assistance that meets their

needs, such as legal aid, protection, secure housing, economic assistance, counseling,

health and social services, physical and psychological recovery services and that they

are not discriminated against. Special assistance should be given to those who are

suffering from HIV/AIDS. Emphasis should be placed upon family and community-

based rehabilitation or placement in foster families rather than institutionalization.

• Children should be given an opportunity to express their views, particularly within

the framework of any administrative or judicial proceeding affecting them; and no

child should be discriminated against, including on the basis of gender, national or

social origin. This is consistent with article 2 and 13 of the CRC.

279
• Efforts against trafficking should be aimed particularly at preventing vulnerable

groups of children from becoming victims. While it is true that boys are increasingly

involved in child prostitution and child pornography, girls comprise the majority of

victims. Gender discrimination can place girls at greater risk of sexual exploitation,

and also creates specific needs for their rehabilitation.

• UNICEF supports major studies of trafficking that are taking place around the world,

including a study of trafficking in the NAFTA region underway at the University of

Pittsburgh.

• UNICEF provides input to "The Global Programme Against Trafficking in Human

Beings", a three-year study undertaken by the United Nations Office for Drug

Control and Crime Prevention. It focuses on the role played by organized crime,

trafficking patterns, the nature of the criminal syndicates involved, the role of

corruption, the impact of clandestine migrant communities, the trafficking of women

and children for purposes of forced/exploitative labour, commercial sexual

exploitation and unlawful adoption. UNICEF is concerned to ensure that the human

rights aspects of the issue are not overwhelmed by the study's focus on the criminal

aspects.

• In the Asia and Pacific Region, UNICEF is a partner in a number of projects that

specifically address the trafficking of women and children. They include:

• the Mekong Regional Law Centre project, "Illegal Migration: The Case in

Trafficking of Women and Children" (Cambodia, China, Laos, Myanmar, Thailand,

Viet Nam), which aims to develop a practical program to improve legislation and law

enforcement in the area of trafficking;

• the ESCAP (Economic and Social Commission for Asia and the Pacific) Human

Resources Development Section of the Social Development Division, "Project for the

Elimination of Sexual Abuse and Sexual Exploitation of Children and Youth in Asia
280
 and the Pacific"(Cambodia, China, Laos, Myanmar, the Philippines, Thailand, Viet

Nam, Bangladesh, India, Nepal, Pakistan, Sri Lanka), which will build capacity of

local government and NGO personnel through research and networking, raising

awareness of policymakers, development of curriculum and training materials and

sub-regional training;

• the ILO-International Programme for the Elimination of Child Labour (IPEC)

project, "Combat Trafficking in Children and Women for Labour Exploitation in the

Mekong Sub-region and South Asia", which aims to develop best practice guidelines

based on the evaluation of pilot activities and train trainers as well as offering direct

socio-economic alternatives to child and women victims of trafficking and to those at

risk;

• the UNDP project, "Trafficking in Women and Children in the Mekong Sub-region",

which will do an inventory of UN agency, government, NGO and CBO activities

addressing trafficking; assess gaps in these activities; establish mechanisms to

improve communication and coordination; identify research needs and begin

research;

• the International Organization for Migration (IOM) project, "Return and

Reintegration of Trafficked Women from China to Vietnam, Thailand to Cambodia

and Cambodia to Vietnam", which will build research capacity, train border police

and provide psycho-social recovery assistance to trafficking victims.

• UNICEF participates in the Regional Working Group on Child Labour (involving

ILO/IPEC, Save the Children Alliance, and Child Workers in Asia).

• UNICEF supports the International Network for Girls (ING). Organized by the NGO

Working Group on Girls, the network comprises 400 NGOs in 86 countries who

work with and for girls. Sexual exploitation and trafficking are two of its highest

priorities.
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• In Benin, UNICEF supports the Project on Children in Need of Special Protection.

The project raises awareness about child trafficking and exploitation and the hazards

these children face. The project also advocates for children's rights in the CRC; has

set up eight educational facilities for girl domestic workers; provided community

support, giving women access to loans to finance income-generating activities; and

promoted girls' education.

• In Cambodia in July 1999 the Cambodian National Council for Children has

launched a national 5-year plan against child sexual exploitation and trafficking.

In spite of several focused initiatives addressing the various needs of children in India,

it is very evident from the Statistics presented in the coming chapters that, a lot need

to be done to improve their condition in all realms of child survival, child

development and child protection.

The gender inequality is also wide in these areas, calling for special attention on girl

child.

National Policies and Programmes for Children

Further, the Nation is implementing a number of Child centric policies addressing the

issues of Child Survival, Child Development and Child Protection. The important

among them are,

- National Policy for Children 1974

Is the first policy document concerning the needs and rights of children. It recognized

children to be a supremely important asset to the country. The goal of the policy is to

take the next step in ensuring the constitutional provisions for children and the UN

Declaration of Rights are implemented. It outlines services the state should provide

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for the complete development of a child, before and after birth and throughout a

child's period of growth for their full physical, mental and social development.

- National Policy on Education, 1986

was called for "special emphasis on the removal of disparities and to equalize

educational opportunity," especially for Indian women, Scheduled Tribes (ST) and the

Scheduled Caste (SC) communities. To achieve these, the policy called for expanding

scholarships, adult education, recruiting more teachers from the SCs, incentives for

poor families to send their children to school regularly, development of new

institutions and providing housing and services. The NPE called for a "child-centered

approach" in primary education, and launched "Operation Blackboard" to improve

primary schools nationwide.

- National Policy on child Labour, 1987

contains the action plan for tackling the problem of child labour. It envisaged a

legislative action plan focusing and convergence of general development programmes

for benefiting children wherever possible, and Project-based plan of action for

launching of projects for the welfare of working children in areas of high

concentration of child labour.

- National Nutrition policy, 1993

was introduced to combat the problem of under - nutrition. It aims to address this

problem by utilizing direct (short term) and indirect (long term) interventions in the

area of food production and distribution, health and family welfare, education, rural

and urban development, woman and child development etc.

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 - National Population Policy 2000

The national population policy 2000 aims at improvement in the status of Indian

children. It emphasized free and compulsory school education up to age 14, universal

immunization of children against all vaccine preventable diseases, 100% registration

of birth, death, marriage and pregnancy, substantial reduction in the infant mortality

rate and maternal mortality ratio etc.

- National Health Policy 2002

The main objective of this policy is to achieve an acceptable standard of good health

amongst the general population of the country. The approach is to increase access to

the decentralized public health system by establishing new infrastructure in deficient

areas, and by upgrading the infrastructure in the existing institutions. Overriding

importance is given to ensuring a more equitable access to health services across the

social and geographical expanse of the country.

- National Charter for children (NCC), 2003

Highlights the Constitutional provisions towards the cause of the children and the

role of civil society, communities and families and their obligations in fulfilling

children’s basic needs. Well-being of special groups such as children of BPL families,

street children, girl child, child-care programmes, and educational programmes for

prevention from exploitation find special mention in the NCC. It secures for every

child its inherent right to be a child and enjoy a healthy and happy childhood, to

address the root causes that negate the healthy growth and development of children,

and to awaken the conscience of the community in the wider societal context to

protect children from all forms of abuse, while strengthening the family, society and

the Nation.
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The Charter provides that the State and community shall undertake all possible

measures to ensure and protect the survival, life and liberty of all children. For

empowering adolescent, the Charter states that the State and community shall take all

steps to provide the necessary education and skills to adolescent children so as to

equip them to become economically productive citizens.

- National Plan Of Action For Children (NPA), 2005

was adopted by Government of India in the pursuit of well-being of children. NPA

has a significant number of key areas of thrust out of which the one’s relating to child

protection are:

1. Complete abolition of female foeticide, female infanticide and child marriage

and ensuring the survival, development and protection of the girl child,

2. Addressing and upholding the rights of children in difficult circumstances,

3. Securing for all children legal and social protection from all kinds of abuse,

exploitation and neglect.

The various Schemes / Programmes are implemented by different Central Ministries,

following the guidance of the national policies. They are aiming to tackle the issues

relating to the overall welfare of children work independently as well as hand in hand.

The State/ UT Governments also execute numerous programmes from time to time for

improving the lot of children.

- National Plan of Action (NPA)

In 1998, the Prime Minister approved a National Plan of Action (NPA) to Combat

Trafficking and Commercial Sexual Exploitation of Women and Children. Besides

making provisions for combating trafficking, the NPA also gives priority to the rescue

and rehabilitation of victims of trafficking and commercial sexual exploitation. A

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three-tiered monitoring mechanism has been established to oversee implementation of

the Plan of Action from the district level to the central level. At the central level, the

Central Advisory Committee on Child Prostitution monitors the implementation of the

NPA with respect to the states. At the state level, a State Advisory Committee with

responsibility for implementation of the NPA has been constituted under the

chairpersonship of a Chief Secretary/Additional Chief Secretary 334.However, a report

by the NGO Shakti Vahini has claimed that in the first six years of the NPA’s

existence, little change real change was achieved because of a lack of implementation

of the NPA 335.

- The Integrated Child Protection Scheme

Another intervention relevant to the commercial sexual exploitation of children is the

Integrated Child Protection Scheme (ICPS). ICPS is a centrally sponsored scheme

under the Ministry of Women and Child Development which seeks to build a

protective environment for children through Government-Civil Society Partnerships.

It brings together multiple schemes under one comprehensive child protection

scheme, combining existing child protection schemes of the Ministry and integrating

interventions for protecting children and preventing harm 336.

ICPS is based on the core principles of “protection of child rights” and “best interests

of the child”. The scheme focuses on:

(i) improving access to and quality of child protection services;

(ii) raising public awareness about the reality of child rights in India;

334
‘Integrated Child Protection Scheme’, Ministry of Women & Child Development, Government of
India. See www.wcd.nic.in.
335
Ibid.
336
Integrated Child Protection Scheme, Ministry of Women & Child Development, Government of
India. See www.wcd.nic.in.
286
 (iii) clearly articulating responsibilities and enforced accountability for

child protection;

(iv) establishing functional structures at all government levels for the

delivery of statutory and support services to children in difficult

circumstances; and

(v) Introducing and operational zing evidence-based monitoring and

evaluation.

The specific objectives of ICPS therefore broadly include:

(i) institutionalizing essential services and strengthening structures;

(ii) capacity building at all levels;

(iii) creating a database and knowledge base for child protection services;

(iv) strengthening child protection at the family and community level; and

(v) Ensuring appropriate inter-sectoral response at all levels.

The scheme also mandates the creation of village and block level Child Protection

Committees which are anticipated to play a key role in the prevention and increased

reporting of all incidents of child rights violations including sexual exploitation.

- The Scheme of Short Stay Homes for Women and Girls

The Scheme of Short Stay Homes for Women and Girls was launched by the Ministry

of Women and Child Development for providing help and guidance to women and

girls in difficult circumstances to regain confidence and become self-reliant. Among

others, the categories of women/girls who are the intended beneficiaries of this

scheme include:

(i) those who are being forced into prostitution;

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(ii) those who, as a result of family tension or discord, are made to leave their

homes without any means of subsistence and have no social protection from

exploitation and/or are facing litigation on account of marital disputes; and

(iii) those who have been sexually assaulted and are facing the problem of re-

adjustment in the family or society. The Scheme provides institutional care

and support services like counseling and guidance, medical and psychiatric

check-up and treatment, and skill development to the women and girls staying

at these short stay homes. Short stay homes are mainly run by voluntary

organizations, and a recent evaluative study found indications they are having

a positive impact on the lives of residents and former residents.

8.6 GOVERNMENT INITIATIVES

The specific interventions of the Indian Government in the area of trafficking have

involved various departments and agencies, and have dovetailed with other

interventions intended to ensure the protection of girl children in the country,

including in the areas of labor and education. According to the United Nations Office

on Drugs and Crime, the Indian Ministry of Home Affairs has initiated a

comprehensive four-year anti trafficking scheme focusing on two important areas: (a)

building up a cadre of 10,00 master trainers through training of trainers of the police

and (b) setting up 297 Anti Human Trafficking Units across the country, the funds for

which have been committed by the government 337. Other relevant interventions being

337
Swasti Rana, United Nations Office on Drugs and Crime, in an interview with HAQ CRC on 5
November 2009.
288
implemented by some of the major ministries/departments of the Government of India

include:

UJJAWALA

The Ministry of Women and Child Development has been implementing three pilot

projects: (i) to combat trafficking of women and children for commercial sexual

exploitation under the sanction of tradition; (ii) to combat trafficking of women and

children for commercial sexual exploitation in source areas; and (iii) to combat

trafficking of women and children for commercial sexual exploitation in destination

areas. Based on favourable feedback on the implementation of the pilot projects, the

Ministry of Women and Child Development merged these three projects into a

comprehensive scheme titled “UJJAWALA” in 2007 to be implemented during the

11th Five Year Plan.

UJJAWALA was launched in December 2007 with the objective of preventing

trafficking and the rescuing, rehabilitating and repatriating trafficked women and

children. The major components of this scheme include:

 Prevention, which consists of the formation of community vigilance

groups/adolescent groups, awareness and sensitization of important

functionaries including police and community leaders, and preparation of

informational and educational materials;

 Rescue, which centers on the safe withdrawal of the victim from the place of

exploitation;

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  Rehabilitation, which includes providing safe shelter for victims, together with

food, clothing, counseling, medical care, legal aid, vocational training and

income generation activities;

 Reintegration, which involves restoring the victim into the family/community

(if she so desires) and covers the accompanying costs; and

 Repatriation, to provide support to cross-border victims for their safe

repatriation to their countries of origin.

The Ministry of Women and Child Development has approved funding for at least 53

state projects under UJJAWALA, benefiting more than 1,700 victims. For example,

since August 2008 it has provided the states of Karnataka, Maharashtra, Manipur, and

Nagaland with almost $243,000 for 18 projects at 12 rehabilitation centers.

THE SWADHAR SCHEME

The Swadhar Scheme has been designed by the Ministry of Women and Child

Development with the aim of catering to the requirement of females in distress in

diverse situations under different conditions. The Swadhar Scheme purports to

address the specific vulnerability of each group of females through a home-based

holistic and integrated approach. The scheme covers trafficked women/girls who have

been rescued or have run away from brothels or other places and women/girl victims

of sexual crimes who have been disowned by their families or who do not want to go

back to their families for various reasons.

The Swadhar scheme is implemented through the Social Welfare/ Women and Child

Welfare Department of State Governments, Women’s Development Corporations,

Urban Local Bodies, reputed Public/Private Trusts or voluntary organizations willing

to take on the responsibility. The scheme aims to provide shelter, food, clothing, care,
290
emotional support, legal aid, counseling and guidance to marginalized women and

girls living in difficult circumstances who are without any social or economic support.

It also aims to rehabilitate them socially and economically through education,

awareness and skill development. Under this scheme, the government supports over

200 shelters with an annual budget of more than $1 million to provide care for more

than 13,000 women and girls rescued from a range of difficult circumstances,

including sex trafficking 338.

Major initiatives taken by state governments / union territory administrations to

combat child trafficking 339

STATES/UTs INITIATIVES/INTERVENTIONS

GOA

The Government of Goa has taken a landmark initiative in addressing the issue of

trafficking through the Goa Children’s Act 2003, notified on 14th July 2003. For the

first time in the history of the country, the word ‘trafficking’ has been given a legal

definition in this Act, though it is with specific reference to ‘child trafficking’.

Moreover, this Act takes into consideration trafficking of both male and female

children for any type of exploitation. In Goa, the government has constituted an

advisory committee consisting of government officials and representatives of non-

governmental organizations.

A short stay home and juvenile home have also been

338
United States Department of State, Trafficking in Persons Report 2009 – India (2009). Available at:
<http://www.unhcr.org/refworld/docid/4a4214b4c.html>.accessed on 12 January, 2014.
339
Sen and PM Nair, Trafficking in Women and Children in India (2005) 188-189. 235
291
 GUJARAT

In Gujarat, a state advisory committee was constituted on 10 April 1992. Four Homes

for Women, seven Reception Centers for Women and nine NGOs have been

recognized as protective homes under the ITPA.

HARYANA

A state-level advisory board, juvenile justice fund, juvenile courts, juvenile welfare

board, etc. have been set up. An NGO, ‘CORE’, is involved in the setting up of a

shelter home. A rescue and rehabilitation package for trafficked girls in Mewat has

been given to CORE.

ORISSA

A state-level coordination committee has been constituted to combat trafficking, with

the Chief Secretary as Chairperson.

Awareness campaigns have been taken up through the State Commission for Women,

State Social Welfare Advisory Board, State AIDS Cell and some NGOs in the state.

The state government has set up 27 short stay homes, four juvenile homes, 15

observation homes and one protective home. These institutions take care of persons

rescued from situations of commercial sexual exploitation.

PONDICHERRY

The Pondicherry government has taken several measures for the economic

empowerment of women as well as for the rescue and rehabilitation of trafficking

victims. The services of the National Institute of Social Defence and the Aambagan

Institute, which are run by the Voluntary Organization of Social Health in India, are

being utilized for rescue and rehabilitation.

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 PUNJAB

A state-level coordination committee to combat trafficking was set up on 3 May 2001,

with the Chief Secretary as the Chairperson. One protective home is functioning at

Jalandhar and two juvenile homes have also been set up.

TAMIL NADU

The Anti-Vice Squad, specially constituted by the Director General of Police, has

been duly ratified by the state government as an exclusive wing to investigate

trafficking cases. The squad has exposed several trafficking and commercial sexual

exploitation rackets, including those functioning under the cover of so-called

‘Friendship Clubs’. They have also initiated action against traffickers and brokers.

- Village-Level Watchdog Committees have also been constituted. Membership

of these committees includes village officials, NGOs that are active in the

village/area and a member of the Self-Help Group active in the village.

- Women’s helplines have been set up in the All Women Police Stations to help

women in distress; help booths have also been established by the Railway

Police throughout the state.

- The government has created the Tamil Nadu Social Defence Welfare Fund for

Women and Children for the rehabilitation of victims of ‘moral exploitation’

and children who are in vulnerable situations.

- The Police Department has done a comprehensive mapping of trafficking in

terms of source, transit and destination points covering the entire state. All the

District Superintendents of Police/Commissioner of Police have been

designated as Nodal Officers for the purpose of prevention of trafficking and

combating commercial sexual exploitation of women and children.

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 - The Department of Social Defence has organized sensitization programmes

for police officials, NGOs and government functionaries of the concerned

departments on the Juvenile Justice System and trafficking.

- All women police officials in the state have been provided basic counseling

courses.

- The state government is running protective homes/vigilance homes and after

care organizations in Chennai, Salem, Coimbatore, Trichy, Madurai and

Vellore to provide shelter, counseling and vocational training to the victims.

WEST BENGAL

The West Bengal Milk Federation Cooperative Society has launched income

generating programmes in the border districts of Murshidabad and Nadia to prevent

migration of destitute women from these areas. The rescue victims staying in short

stay homes run by NGOs are provided with education, health counseling, vocational

training, guidance, etc.

ANDHRA PRADESH

The Andhra Pradesh government brought out a specific policy for combating

trafficking of women and children for commercial sexual exploitation in 2003.

Specific steps were laid down for prevention, rescue, legal reforms, rehabilitation,

economic empowerment, health care, education and anti trafficking measures.

In April 2003, an Anti-Trafficking Campaign was launched throughout the state by

the Department of Women Development and Child Welfare, Government of Andhra

294
Pradesh. The campaign, which was carried out at the district level, was organized

under the leadership of district collectors, with the active involvement of local elected

representatives, educational institutions, NGOs, local bodies, self-help groups and

adolescent girls.

On the directions of the Goa Branch of the Bombay High Court to rehabilitate 1066

victims of commercial sexual exploitation who were rescued from the Baina Beach

red-light area and who originally belonged to Andhra Pradesh, steps have been

initiated to set up “Temporary Shelter Homes” in the six regions of the state. A local

NGO has been given funds for the rehabilitation of 25 rescued trafficking victims. In

February 2004, the Government of Andhra Pradesh informed the High Court of Delhi

about its willingness to provide video conferencing facilities for the trial of traffickers

who had trafficked girls from Andhra Pradesh to Delhi. As a result, these victims,

who have since been rehabilitated in Andhra Pradesh, need not come to Delhi courts

for giving evidence.

BIHAR

The government has established Women Helpline Centers at Patna and Siwan. Four

short stay homes are running in the high supply areas. The government has issued

directions to give preference to women and child victims of commercial sexual

exploitation under various developmental schemes. A State Action Plan for three

years has been formulated for the welfare and rehabilitation of trafficked women and

chil

295
 MADHYA PRADESH

A state advisory board is in existence. A scheme started in 1992-93, involving NGOs,

is focused on the welfare and development of women and child victims of commercial

sexual exploitation.

MAHARASHTRA

A State Advisory Committee was constituted in 1996. In pursuance of the directions

of the High Court of Mumbai in a writ petition, the state government took further

steps for the rescue and rehabilitation of several girls. In 1996, 448 girls were rescued

from the red-light area of Mumbai.

In 2001, the government set up an Advisory Body to tackle the issue of minors in

commercial sexual exploitation. This body came out with a list of recommendations

and the government has initiated further steps towards implementing them. In

furtherance of the findings of a study group appointed to identify Devadasis in

affected areas, the Devadasis have been identified. Moreover, arrangements have been

made for the economic empowerment and rehabilitation of Devadasis and their

children.

The Maharashtra State Social Advisory Board (MSSAB) is running 51 family

counseling centres for the victims of sexual exploitation. Health care services have

been specially provided through the Targeted Intervention Project in specific areas for

the comprehensive health care of victims of CSE and their children. Family health

care campaigns and awareness campaigns on health issues have been organized. The

296
state government has set up 148 juvenile homes run by the government/NGOs,

including a special home for the mentally challenged as well as rescued girls.

8.7 NGO AND CIVIL SOCIETY INITIATIVES

India has a very strong and active NGO movement and there are a large number of

voluntary organizations and agencies working across the country involved in a range

of anti-trafficking measures. Some of such major voluntary organizations include:

 Prerana, a Mumbai-based NGO, is involved in several activities aimed at

combating and preventing trafficking. The organization has played an active

role in anti-trafficking activities not only in Maharashtra, but also at the

national and international levels. Prerana has provided shelter homes for

children, including victims of trafficking, living in brothels. By educating

them, making them aware of their rights and empowering them with livelihood

options, skills and resources, Prerana has achieved considerable success in

tackling the problem.

 In the SEVA Model Initiative, ‘rights awareness’ campaigns in border areas

and public awareness campaigns by barefoot workers of the Manav Seva

Sansthan have had considerable success in the area of prevention, especially of

transborder trafficking from Nepal.

 Save our Sisters (SOS) has launched an information campaign in Maharashtra

and other places on various facets of trafficking. The training programmes,

which they organize for hoteliers and the tour operators, have established a

channel of communication between social activists and tourism professionals

on matters relating to the prevention of sex tourism.

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  Action Aid India has initiated several programmes at several places in India

for addressing the vulnerabilities of women and children, which can result in

their being trafficked.

Involvement of the community and civil society is a key to tackling a deep-rooted

issue like commercial child sexual exploitation. If the community and civil society are

aware of the problem and can organize themselves to provide a protective

environment for girl children, the challenge is half met. India has a very strong and

active NGO movement and there are a large number of voluntary organizations and

agencies working across the country to combat child sexual exploitation. Some of

such major voluntary organizations include:

 TULIR is a Tamil Nadu based NGO that focuses on the prevention of child

sexual abuse and ensuring justice to victims. The organization has developed

several information, education and communication materials on the subject

and has been conducting awareness programmes with school children. Its

other areas of work include research, policy advocacy, litigation and assistance

to victims of child sexual abuse.

 Forum Against Child Sexual Exploitation (FACSE) is one of the older and

more well-known Mumbai based organizations that have been working on the

issue of sexual exploitation of children. FACSE has been providing both direct

assistance to victims of child sexual exploitation and also conducting

awareness programmes and policy discussions on the subject.

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 Association for Advocacy and Legal Initiatives (AALI) is a socio-legal

feministorganization based in Lucknow, Uttar Pradesh. It has made significant

contributions to debates and discussions on child sexual abuse, age of sexual

consent etc. AALI provides legal assistance and counseling to victims and

engages with members of the judiciary, lawyers, social activists, health

workers and other stakeholders to build a human rights perspective on dealing

with victims of sexual exploitation, domestic violence and gender

discrimination of any form.

 Child Rights in Goa (CRG) has been working on the issue of pedophilia, child

pornography and trafficking of girls for commercial sexual exploitation. It has

made significant contributions on child sexual abuse and sexual exploitation of

children through its work at community level, policy advocacy, research and

training, victim assistance and networking with like-minded individuals and

groups. It was also part of the formulation of the Goa Children’s Act 2003.

 Childline India Foundation is an autonomous organization that runs the child

help line service for the Government of India through various Childline

partner organizations in different states. It has been part of litigation relating to

paedophila by foreign tourists and foreigners running orphanages in India as

well as other forms of child sexual abuse. Childline largely deals with

protection and rehabilitation of victims of all forms of violence against

children.

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Strengthening the Legal Protection Framework for Girls

1. STOP, in Delhi, has contributed significantly to the prosecution of child

traffickers. It has for some time also been pursuing rescue operations. In 2002,

the High Court of Delhi, acting on a suo moto motion and in pursuance of

public interest litigation pending in the High Court, directed the Delhi Police

to associate this NGO with all rescue operations. STOP has also been

entrusted with the responsibility of rehabilitating victims.

2. PRERANA, a Mumbai-based NGO, is involved in several activities aimed at

combating and preventing trafficking. The organization has played an active

role in anti-trafficking activities not only in Maharashtra, but also at the

national and international levels. Prerana provides shelter homes for children,

including victims of trafficking living in brothels. By educating them, making

them aware of their rights and empowering them with livelihood options,

skills and resources, Prerana has achieved considerable success in tackling the

problem.

3. Save our Sisters (SOS) has launched an information campaign in Maharashtra

and other places on various facets of trafficking. The training programmes

which they organise for hoteliers and tour operators have established a channel

of communication between social activists and tourism professionals on

matters relating to the prevention of sex tourism.

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4. Action Aid India has initiated several programmes at several places in India

for addressing the vulnerabilities of women and children, which can resulted

in their trafficking.

5. Prajwala, in Hyderabad, undertakes rescue, rehabilitation, counselling and

reintegration. It also networks with government agencies as well as

corporations on various rehabilitative programmes. The Government of

Andhra Pradesh, in consultation with Prajwala, has framed several guidelines

and a detailed plan of action to address the problem of trafficking. This is a

unique instance of a dynamic and functional partnership between the

government and an NGO to combat trafficking in the different districts of

Andhra Pradesh.

6. Arz, an NGO working in the Baina red-light area in Goa, has successfully

rescued several young children trafficked from different parts of the country.

Sustained intervention, advocacy and an integrated approach have enabled the

organization to effectively confront a range of trafficking-related issues.

7. Joint Women’s Programme (JWP), Delhi, has introduced several initiatives to

study aspects of trafficking in red-light areas. It has also opened a school for

the children of victims of commercial child sexual exploitation. This provides

the children not only with education, but also inculcates awareness regarding

their rights. Besides this, the children gain exposure to the wider world and

receive help with choosing alternative means of livelihood

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 8. The International Justice Movement (IJM), Mumbai, is involved in rescue

operations as well as in the prosecution of traffickers and other exploiters. It

also provides survivors with legal counseling, rights awareness and other

facilities. Such activities have made a big impact on the anti-trafficking

situation in Mumbai.

9. Sanlaap, an NGO based in Kolkata, has initiated several sustained and focused

programmes in the red-light areas of Kolkata and elsewhere, with special

attention to the rescue, rehabilitation and reintegration of trafficked persons.

10. HAQ Centre for Child Rights works for the prevention of child trafficking. It

seeks people’s participation by apprising them of the evils of child trafficking.

The centre also conducts sensitization programmes for members of the

executive and legislature as well as for the media.

Strengthening the Legal Protection Framework for Girls

• Prayas, an NGO based in Delhi, has been working with street children for over

a decade. Its rescue home provides sanctuary to a large number of children

rescued from exploitative situations. The counseling and rehabilitative training

imparted by Prayas has been able to provide appropriate livelihood options for

many children.

• Socio Legal Aid Research and Training Centre (SLARTC) provides legal

assistance to trafficked victims and is involved in the prosecution of traffickers

in trial courts.

• Human Rights Law Network (HRLN) has established a trafficking initiative

that undertakes a host of activities aimed at spreading awareness about

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 trafficking and providing legal aid and advocacy to the victims of trafficking

and assisting in their successful reintegration in society. HRLN also works in

tandem with statutory bodies such as the National Commission for Human

Rights.

• ShaktiVahini works for the prevention of trafficking of women and children.

In order to ensure that victims of commercial sexual exploitation are not

discriminated against once they are removed from brothels and are provided

with better opportunities and proper rehabilitative care, Shakti Vahini has filed

a petition in the High Court of Delhi (Shakti Vahini Vs Govt of NCT of

Delhi). The notice has already been issued to the Delhi Government. Apart

from legal advocacy, Shakti Vahini works for the rescue and rehabilitation of

the victims of sexual exploitation.

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