A child is a young human being : an immature person ,an offspring, weak, most ignorant, most uneducated, most degenerate human being. A child is dependent upon others for his well being. He is vulnerable because of his “littleness”, because of his ignorance and because of his simplicity.
India is a signatory to the Convention on the Rights of the Child, 1989 yet thousands of young children are suffering in India, facing physical, emotional and sexual abuse, being forced into labour, prostitution, subjected to inhuman treatment, abducted, beaten, neglected and even killed sometimes by those very persons who are responsible for their maintenance and protection.
The evil of child abuse is present not only in India or in developing nations but across the globe. It is a global issue, one requiring the efforts from all quarters to curb it.
Laws are made to check the instances of child abuse. Various national and international enactments aim to curb the menace of child abuse. Legislation reflects the outlook of the society. It is the most important step towards problem solving.
With the combined efforts in the field of legislation and in its implementation both nationally and internationally, the evil of child abuse can be curtailed and the child shall be able to lead a fuller life, without any fear, but in health and happiness.
Who is a child?
The Oxford Advanced Learner’s Dictionary defines a child as ‘a young human being who is not yet an adult’.
Article 1 of the Convention on the Rights of the Child provides-“For the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.
Thus, a child is a young human being who has not yet attained majority.
Generally, the age of majority is considered to be 18 years , however regarding labour, laws consider a person below the age of 14 years as a child. The Child Labour (Prohibition and Regulation) Act, 1986 defines a child to mean a person who has not completed his fourteenth year of age.
According to The Immoral Traffic (Prevention) Act, 1956, a child is a person who has not completed 16 years of age and a minor is a person who has completed 16 years of age but has not completed 18 years of age.
Thus, a child is a person who has not attained majority which is considered to be attained at the age of 18 years though some laws may fix majority at an earlier age.
What is child abuse?
Oxford Advanced Learner’s Dictionary defines child abuse as ‘the crime of harming a child in a physical, sexual or emotional way’.
Thus, child abuse means any form of physical, sexual or emotional harm which includes child labour, child sexual exploitation, child trafficking, neglect, torture, economic exploitation and all forms of exploitation prejudicial to any aspect of the child’s welfare. Child abuse can be covered under three heads:
(i) Physical abuse
(ii) Sexual abuse
(iii) Emotional abuse
Physical abuse includes all forms of torture, neglect, punishment and also economic exploitation.
Economic exploitation includes child labour and beggar. Child labour is one of the growing concerns worldwide. Employment of children under a specified age comes within the meaning of child labour.
The U.S. Department of Labour has defined child labour as “the employment of boys and girls when they are too young to work for hire or when they are employed at jobs unsuited and unsafe for children of their ages or under conditions injurious to their welfare. It is any employment that robs children of their rightful heritage of the chance for healthy development, full educational opportunities and necessary playtime.”
Child labour is interpreted in two ways:
(i) economic practice
(ii) as a social evil
To bring a child worker into the category of child labour, three conditions are to be fulfilled:
(i) child should be occupied in a gainful occupation
(ii) it must deny him the opportunity of healthy development
(iii) the work to which he is exposed must be hazardous.
Sexual abuse of children includes their trafficking for use in prostitution, rape and other forms of sexual assaults, showing pornography or being used in the production of pornographic pictures.
Emotional abuse occurs in the form of mental torture, neglect and other forms of overt acts on the part of the parents, family, guardians and other persons the child is close to or lives with.
Gravity of problem: statistics
The evil of child abuse is fast spreading and the majority of the children have been subjected to abuse in one form or the other. Child labour is very rampant in developing countries where weak economy along with low literacy rates and large population acts as a catalyst for child labour.
Regarding sexual abuse, the most disturbing thing is that the majority of the victims have suffered abuse from the hands of their family, neighbours or in any case a person they know and trust.
Recently, the Nithari case has brought to the forefront the rampant incidents of physical abuse of small children.
The first National Survey of Child Abuse, covering 13 states released on April 9, 2007 stated that 53% of the children faced child abuse. Compared to those in the age group 13-18, younger children (5-12 years) faced higher levels of abuse. According to the study, states like Andhra Pradesh, Assam, Bihar and Delhi reported high level of abuse.
About 53.22% children reported facing sexual abuse.
About 69% of children admitted facing physical abuse by way of beating, burning, kicking or had been harmed otherwise.
About 50% of the children in the country have suffered emotional abuse in the form of verbal, mental abuse or some kind of humiliationlike girl child neglect.
According to the study, the child labourers and the street children were most vulnerable to sexual abuse. According to the study, about 62% of children at work and about 55% of street children have faced some sort of sexual abuse. [1]
According to National Crime Record Bureau, 18,967 instances of crimes against children were recorded in the country in the year 2006 with Madhya Pradesh recording 3,939 cases, Maharashtra 2,481 cases and Uttar Pradesh 1,767 cases.[2]
Legal measures
The need for protection of child from abuse in all forms has been felt both in the national as well as international fields. Various national laws and international conventions have been formulated to curb the evil of child abuse.
International measures
The need for providing protection and safeguard to children was first stated in the Geneva Convention on Rights of Child, 1924 after the first world war. The use of children in warfare during the first world war led to the concerns regarding the rights of children and their protection.
The Universal Declaration of Human Rights, 1948
The Universal Declaration of Human Rights also accepted the child’s rights as human rights. Article 25 of the Declaration provides that motherhood and childhood are entitled to care and assistance. All children, whether born in or out of wedlock, shall enjoy social care and protection.
United Nations Declaration on the Rights of Child, 1959
United Nations Declaration on the Rights of Child, 1959 also mentioned the need to protect and provide special safeguards and care to the child. It provides for the protection against all forms of neglect, cruelty and exploitation and also that the child shall not be subjected to trafficking in any form and shall not be admitted to employment before an appropriate age. It further provides that in all circumstances, child shall be among the first to receive protection and relief.
Convention on the Rights of the Child,1989
The Convention was adopted by the General Assembly of the United Nations on 20 November, 1989. The government of India acceded to it on 11 December, 1992.
Articles 19(1), 32, 33, 34, 35, 36 and 37 of the Convention seek to protect the child from all forms of abuse and exploitation. It has been laid down that the child shall be protected from economic exploitation, from hazardous work, drug abuse and trafficking, sexual exploitation and abuse and all other forms of exploitation prejudicial to child welfare. Further, it has been provided that a child shall not be subjected to cruelty, torture, inhuman treatment and punishment. It is further provided that measures should be taken so that children below the age of fifteen years do not take part in hostilities and shall refrain from recruiting them in armed forces.
Optional Protocols to the Convention on the Rights of the Child
Two optional protocols to the Convention on the Rights of the Child were adopted on May 25, 2000 in New York, which are:
(i) Optional Protocol to the convention on the Rights of the Child on the Involvement of Children in Armed Conflicts- The objective of the Protocol was to seek limits on the issue of children in armed conflicts and particularly to raise the minimum age limit for recruitment and to limit the actual participation of persons under 18 years of age in hostilities. It came into force on 12 February, 2002.
(ii) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography- This Protocol supplements the provisions of the Convention by providing detailed requirements for the criminalization of violations of the rights of children in the context of the sale of children, child prostitution and child pornography. It came into force on 18 January, 2002.
National policy
The national policy relating to child abuse can be studied as follows:
(i) Constitutional provisions
(ii) Other legal provisions
(i) Constitutional provisions
Chapter III of the Constitution of India deals with the provisions of Fundamental Rights and Chapter IV deals with the Directive Principles of State Policy. The rights of child, including his protection from abuse have been dealt with under both these chapters.
Article 15 clause 3 of the Constitution empowers the State to make special provisions for women and children. Thus, the State has power to make any law for the benefit of the children and women.
The right against exploitation is given under Articles 23 and 24.
Article 23 lays down the provisions relating to the prohibition in traffic in human beings and forced labour. Clause (1) of Article 23 provides that: “traffic in human beings and beggar 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 lays down that “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 is a directive Principle and provides that “The State shall, in particular , direct its policy towards securing-
(e) that the health and the 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 into 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”.
(ii) Other legal provisions
Under this head, laws can be further categorized as:
(i) civil laws
(ii) penal laws
(iii) laws regulating child labour
(i) Civil laws
The personal laws lay down various provisions relating to the maintenance and custody of minor children. In cases of custody and adoption of minor children, the interests of the minors are the paramount consideration in the proceedings.
(ii) Penal laws
1. The Indian Penal Code, 1860 has laid down various penal provisions regarding causing miscarriage, abduction and kidnapping of children. The Penal Code lays down provisions for the immunity of children from criminal liability.
Sections 312 and 313 make the causing of miscarriage of a child a punishable offence. Section 315 makes an act done to prevent a child from being born alive an offence.
Under Section 316 causing death of a quick unborn child amounts to culpable homicide punishable with imprisonment upto 10 years and also fine.
Section 317 imposes criminal liability on parents who abandon or desert their child to the extent that the child runs the risk of dying or of being exposed to danger of being injured.
Under Section 318, the secret disposal of a body of a child, whether dead or alive is forbidden.
Sections 359 to 374 deal with kidnapping, abduction, slave trade, forced labour and trade in minor girls for prostitution.
Section 376 deals with the provisions relating to rape.
2. The Code of Criminal Procedure, 1973 also contains special provisions for children. Under Section 437 of the Code, discretionary power is given to the court to release on bail a person who is below 16 years of age.
3. The Juvenile Justice (Care and Protection of Children) Act,2000 lays down special provisions relating to all proceedings against a juvenile. It also lays down provisions for the care and protection of children. Provisions relating to rehabilitation and social reintegration are also laid down under the provisions of this Act.
4. The Probation of Offenders Act, 1958 places restrictions on imprisonment of offenders under 21 years of age and provide for the release on probation of good conduct or after due admonition.
5. The Child Marriage Restraint Act, 1929 aims to curb the evil of child marriage. It imposes penalties upon parents and guardians for permitting the marriage of minor children.
(iii) Laws regulating child labour
The problems relating to child labour have been dealt with under various legal provisions such as
1. The Factories Act, 1948 prohibits the employment of a child in any factory who has not completed 14 years of age. (Section 67)
2. Child Labour ( Prohibition and Regulation )Act, 1986 deals with child labour in the following manner
(i) bans the employment of children under 14 years of age in specified occupations and processes
(ii) regulates the conditions of work of children in employment where they are not prohibited from working
(iii) lays down enhanced penalties for employment of children in violation of the provisions of this Act.
In the case of M.C. Mehta v State of Tamil Nadu[3], the Supreme Court has laid down elaborate guidelines to curb child labour. In this case, the employment of children in match stick and cracker factories was considered to be employment in hazardous factories.
3. The Mines Act, 1952 lays down that no child shall be employed in any mine, nor shall any child allowed to be present in any part of the mine which is below the ground or in any cast working in which a mining operation is being carried out (Section 45)
4. Section 14 of The Beedi and cigar workers (Conditions of Employment) Act, 1966, prohibits the employment of children below 14 years of age in any industrial premises manufacturing beedis or cigars.
5. The Motor Transport Workers Act,1961, provides under Section 21 that no child shall be required or allowed to work in
any capacity in any motor transport undertaking.
6. The Apprentice Act,1961 prohibits a person who has not completed 14 years of age to undergo apprenticeship training in
any designated trade.
7. The Plantation Act,1961 prohibits the employment of children below 14 years of age in plantations in tea, coffee, rubber or cinchona.
8. The Merchant Shipping Act, 1958 prohibits children under 14 years of age to be engaged to work in any capacity in any ship, except in certain specified cases.
9. Section 2 of The Children (Pledging of Labour) Act,1933 makes an agreement to pledge the labour of a child void.
10. The Immoral Traffic (Prevention) Act, 1956 makes the trafficking of children for prostitution a punishable offence.
Inference
Various legislative measures are taken both at the national as well as the international levels but the incidence of child abuse is still increasing. There are various factors for the increase in child abuse including economy and illiteracy. Children are vulnerable to various forms of attack both on their body and mind. Laws are there to protect a child from every possible kind of harm but there are instances of violation of laws and the laws are more noticeable with their violation than their implementation.
Conclusion
Child abuse is a social evil which needs to be curbed as a child is unable and incapable of protecting his interests. An abused child grows up into a depressed and emotionally unstable adult. The children of today are the adults of tomorrow. Their physical and mental well being determines the future of the world. They are weak, they cannot protect themselves and hence, it is necessary that steps are taken to protect their interests and to curb the child abuse. The various national and international measures aim to curb the menace of child abuse. The various legislations are a step towards achieving the goal of protecting each and every child across the globe from abuse in any form. These legislations are the basic steps towards achieving that goal. These legislations deal with the problems relating to child labour, sexual exploitation and other forms of abuse.
However, the various laws have till date not been able to curb the evil of child abuse.
Suggestions
- In order to curb the evil of child abuse, the need is to increase the penal provisions. The quantum of the punishments imposed must be increased.
- Further, education relating to child abuse and related provisions is also necessary.
- Further, need is felt for a better enforcement agency as without proper enforcement, law is but a paper tiger.
- There is a need for the establishment of child welfare committees at village, district, state and national level to check the instances of child abuse.
- The persons close to the child, including his parents, guardians and teachers should be educated about child abuse problems.
Thus, for dealing with the evil of child abuse both legislation and their proper implementation is required.
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