Age of consent

Why the proposed Offences against Children Bill fixing a minumum age of consent is problematic.

Couples have a right to stay together

Reacting to a bizarre set of facts where a community ordered a couple to live separately, the Supreme Court provided them with police protection and said they had a right to be together.

Rights of children of undertrial prisoners

The Supreme Court has issues new guidelines for the rights of the children of undertrial prisoners.

Dance bars ban unconstitutional

The Bombay High Court has struck down as unconstitutional the Maharashtra government's ordinance banning dance bars meant to police morality.

No governmental permission to prosecute

Yet another corruption case against a former minister was closed down because the government refused to give permission to prosecute. While this requirement is apparently there to protect public servants from undue harrassment, it is often used for partisan goals. It may well be violative of Article 14 of the constitution, for vesting unguided discretionary power in the executive.

Child abuse law

The government is finally waking up to drafting a new child abuse law. The Bill is silent on what will happen if the bullying or sexual assault is committed by another child. It also does not have an explanation ruling out consensual sexual encounters between two children from its ambit. Finally, it only protects children in institutionalised settings - street children, for example, have no protection. The full text of the draft Bill is hereunder:

OFFENCES AGAINST CHILDREN ACT, 2005

Introduction:

The UN Convention on the Rights of the child which India ratified in 1992, obligates members States to take affirmative action in protecting children from all forms of sexual abuse, neglect, exploitation, torture, or any form of cruelty. Every child in India is entitled to the rights and freedoms enumerated in the Constitution of India & the UN Convention on the Rights of the Child. Internationally almost all countries have legislation in place to protect children with a focus on the child rights approach. Under this approach, any transgression of a child's rights to live without sexual abuse, violence and other forms of physical and mental torture, is a punishable offence.

Statement of Objects -

To address the legitimate right of these children to enjoy the rights guaranteed for all children by the United Nations and by the Constitution of India, the Government of India is enacting this legislation

1. To identify offences against children and protect children from offences
2. To provide for punishment against persons who have committed offences against children.
3. To set in place rules to fulfill the objectives of this Act

Although India has the largest child population in the world, there is no separate legislation to deal with offences against children. The existing legislation dealing with children, the Juvenile Justice Act 2000 deals primarily with children in conflict with the law and not with the persons who commit crimes against children or the child victims. In view of this it is considered essential that the Government enact a separate child abuse law clearly defining the rights of and remedies for children.

Draft: 4^th October 2005

OFFENCES AGAINST CHILDREN ACT, 2005

CHAPTER I

1. Short title, extent and commencement

-

(1) This Act may be called the Offences against Children Act, 2005.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the official gazette, appoint.

2. Definitions -

In this Act, unless the context otherwise requires-

(a) "Child or Juvenile", "Child in need of Care and Protection", "Children's Home", "Shelter Home" and "Special Home" shall have the meanings respectively assigned to them in the Juvenile Justice (Care and Protection of children) Act, 2000. Explanation – For avoidance of any doubts, 'child in need of care and protection' shall include any child affected by domestic violence or abuse within the home, migrant children, children of migrant parents, children living in border areas, internally displaced children, children affected by disasters and children of women in prostitution and any child who is vulnerable to any of the offences under this Act.

(b) "Children's Court" shall mean the court designated as such under the Commission for the Protection of Child Rights.

(c) "Consent" shall mean, in case of a child/juvenile between the age of 16 years to 18 years, consent to any of the acts in Chapter 2 of this Act, given freely without the use of enticement, force, threat, fear of bodily harm or if consent obtained by false and fraudulent mis-representation as to the nature and quality of the act, or giving or receiving of payments or benefits to the child/juvenile or any person having control over him ; or abuse of power over the child or abuse of a position of vulnerability of the child inter alia due to abduction or unlawful confinement. if the person could not be considered to have consciously consented by reason of mental disability (due to mental deficiency, drunkenness, drugs, sedation etc.) Explanation – A child below the age of 16 shall be deemed to be incapable of giving consent to any of the acts described in Chapter 2 of this Act.

(d) "Incest" means sexual abuse or assault by a person related to the child, including a grand parent, parent, sibling, uncle, aunt, cousin, legitimately or illegitimately, or by whole or half blood.

(e) "Neglect" shall mean any act or omission on the part of a caregiver, which causes harm to the child's health or social development, and shall include unreasonable confinement and starvation of a child in the context of the resources, reasonably available to the family or caretakers,

(f) "Person in position of authority" shall include any panchayat member, official of local administration, functionaries of any institution, including a hospital or Nursing Home, entrusted with custody or care o a child, including temporary care facilities or an employer.

(g) "Person in position of trust" shall include the parents (whether biological, foster, adoptive or step), family members, guardians, family friends, doctors, teachers/tutors, domestic and other employees and any other person who has been entrusted with the care of the child.

(h) "Prescribed" shall mean as prescribed under the Rules framed under Section___ of the Act.

(i)"Sexual manner" shall mean for the purpose of the sexual gratification of any person.

(j) "Trafficker" shall mean any person who intentionally engages in trafficking of children.

(k) " Expressions used but not defined under this Act and defined under the Criminal Procedure Code, 1973, or the Indian Penal Code, 1860, will have the same connotation as under those Acts".

CHAPTER II

SEXUAL OFFENCES AND PUNISHMENTS

3. Sexual Assault –

A person is said to commit Sexual Assault when that person -

1. Penetrates the vagina, (which term shall include the labia majora), the anus or urethra of any child with-
1. any part of the body of another person or
2. an object manipulated by another person

except where such penetration is carried out for proper hygienic or medical purposes;

2. manipulates any part of the body of a child so as to cause penetration of the vagina (which term shall include the labia majora), the anus or the urethra of the offender by any part of the child's body

with or without the consent of a child below 16 years of age and without the consent of a child who has attained the age of 16 years.

Explanation -

Penetration to any extent is penetration for the purpose of this section.

4.

(1) A person guilty of 'Sexual Assault' of a child, except in cases provided for by sub-section (2), shall be liable to rigorous imprisonment for a term of not less than 10 years with fine which may extend to imprisonment for life.

(2) Any person guilty of commission of -

1. gang-rape, or
2. Incest, or
3. sexual assault, by a person in a position of authority or trust, or
4. sexual assault, after having been convicted earlier of sexual assault of a child or attempt to commit or abetment thereof,

shall be liable to rigorous imprisonment of not less than 12 years with fine or life imprisonment.

Explanation - Commission of sexual assault on a child beyond the territory of India by an Indian national shall be deemed to be an offence of sexual assault within India, if it is not treated as such in the country where the incident occurred.

5

. Sexual abuse – Any person who with sexual intent or in a sexual manner -

1. molests a child or touches, directly or indirectly, with a part of the body or with an object, any part of the body of the child;
2. forces, invites, counsels or incites a child to touch, directly or indirectly, the genitalia of any person, including of the person who so invites, counsels or incites, with a part of the body of the child or with any object;
3. engages in cunnilingus or fellatio on a child or compels a child to perform either act,
4. engages in sexual activity in the presence of a child
5. exposes his/her genitals to a child or forces a child to expose his/her genitals,
6. causes a child to watch a sexual act or view pornography in any form, including photographs, print, on the electronic and other wireless media, or
7. induces a child to engage in any other sexual activity not mentioned as a specific offence in this Act.

with or without the consent of a child below 16 years of age and without the consent of a child who has attained the age of 16 years, is said to commit sexual abuse on the child.

6. A person guilty of sexual abuse of a child shall be liable to punishment as provided below:

1. if the child is below 12 years of age, imprisonment of not less than 5 years upto a maximum of 10 years with fine.
2. if the child is between 12-16 years, imprisonment of not less than 2 years but which may extend to 10 years with fine.
3. if the child is more than 16 years, imprisonment of not less than 6 months but which may extend to 10 years with fine.

Provided that if the offender is a person in a position of authority or trust in relation to the child, the punishment of imprisonment would be rigorous and one-and-a-half times the punishments laid down above.

7

. Commercial Sexual Exploitation - Shall mean offering a child to any person for the purpose of sexual exploitation, for a consideration, at any premises other than a brothel and/or the planning, operating, advertising, conducting, or booking of persons on a tour organized for the purpose of sexual exploitation of children, whether actual or intended.

8.

Any person who is guilty of Commercial Sexual Exploitation of a child under this section shall be liable to rigorous imprisonment of not less than 5 years, but which may extend to 10 years, and fine.

9. Child Pornography -

Shall mean any representation, by whatever means, for a sexual purpose, of a child engaged in real or simulated explicit sexual activities or representation of the sexual parts of a child, the dominant characteristic of which is depiction for a sexual purpose or in a sexual manner, or realistic images representing or appearing to be a minor engaged in indecent or sexual activities and/or any promotional material in relation to the same.

10. i.

Any person who prepares, produces, facilitates, distributes or knowingly abets in the creation of child pornography, shall, on conviction, be liable to rigorous imprisonment of not less than 7 years, but which may extend to 10 years, and fine.

ii.

Any person found in possession of child pornography, shall, on conviction, be punished with imprisonment for a term which may extend to 5 years and/or with fine.

11. Grooming for sexual purpose -

Shall mean any person deliberately preparing a child or his/her parents/guardians for the purpose of arranging subsequent meeting(s) with the child with the intention of sexually exploiting the child.

12.

A person guilty of grooming a child for sexual purposes shall be liable to imprisonment for a term which may extend to five years and fine.

Chapter III

OTHER OFFENCES AND PUNISHMENTS

13. Physical Abuse -

Shall mean any intentional and unreasonable act or omission in relation to a child, which causes or is likely to cause pain, hurt or grievous hurt including, but not limited to, assault or use of criminal force, starvation or wrongful confinement.

Provided that the act of scolding and minor beating of the child by his parents/guardian or other elder member of the family or teacher or any other caregiver in the interests of the child himself/herself, which is not of a persistent nature, shall not be deemed to violate the provisions of this section.

14. Any person who commits physical abuse against a child shall be liable to imprisonment of either description for a term which may extend to five years and fine.

Provided that in case of persistent and continued such physical abuse against children, the offender shall be liable to imprisonment of either description for a term which may extend to seven years and fine not less than Rs. 10,000/- .

15. Sale/Transfer of a Child

shall mean sale, abandonment or transfer otherwise of a child by a person having care or custody of the child to any other person for a consideration.

16.

Any person who has sold, transferred or otherwise handed over control of a child to any other person for a consideration shall be punishable with imprisonment for a term which may extend to seven years and/or with fine.

Provided that nothing will constitute an offence under this section where a parent or guardian is forced to sell/ transfer a child to prevent the death of the child from starvation and the competent authorities shall counsel the parents/guardian and extend assistance to enable the parents/guardian to resume custody and care of the child.

17. Trafficking in children

shall mean the recruitment, transportation, transfer, harbouring, or receipt of children, for the purpose of exploitation, by means of violence or threat of violence or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving of payments or other benefits to the child and/or a person having control over the child, to obtain the consent of the child or the person.

Explanation:

Exploitation for the purpose of this act shall include, but not be limited to, forced labour or service, slavery or practices similar to slavery, servitude or any other economically oppressive and exploitative situation, for the profit of the trafficker(s), as well as other illegal activities such as removal of organs, false marriage, clandestine employment and false adoption.

Exception:

Exploitation for prostitution or other forms of sexual exploitation shall be covered under the Immoral Traffic (Prevention) Act, 1987, as amended from time to time.

18

. Any trafficker involved in trafficking in children, shall be liable to imprisonment of either description for a term of not less than 10 years and fine or imprisonment for life.

19. Corporal Punishment -

Shall mean any unreasonable/severe punishment inflicted upon the body of a child, including confinement, for the purpose of disciplining the child, by any person in authority in any place imparting formal or informal education or institution for care or custody of the child

Provided that the act of scolding or minor beating of the child by his/her teacher in the interests of the child himself/herself, which is not of a persistent or habitual nature, shall not be deemed to violate the provisions of this section.

20

. Any person who inflicts corporal punishment on a child shall be punished with imprisonment for a term which may extend to 2 years and/or fine.

21. Bullying

shall mean to deliberately and persistently intimidate, overbear, persecute, humiliate, or demean a child through menacing words or gestures.

22.

Any person responsible for bullying a child shall be punished with imprisonment for a term which may extend to 1 year and/or fine or may be ordered to do community service.

Provided that in case of the offence being committed consistently in an educational institution within the knowledge of the teacher(s) and/or the head of the institution, who either condone, willfully ignore or abet such offence or fail to check the commission thereof, such teacher(s) or head of the institution, as the case may be, shall be individually liable to punishment of fine which may not be less than 1 month's salary.

23. Economic exploitation of children -

Shall mean financial exploitation of a child and shall include taking away the earnings of a child with the intention of depriving the child permanently if their earnings and shall include inter alia using a child for begging, restraining a child for slavery/practices similar to slavery, debt bondage, forced labour, or using a child for illicit activities such as theft, smuggling.

24.

Any person responsible for Economic Exploitation of children shall be punished with imprisonment for a term which may extend to 5 years and/or fine.

25. Other forms of child abuse - Shall mean any act or omission, other than the specific offences mentioned in this Act, which results in or is likely to result in harm to the child's health, survival, development or dignity or which debases, degrades or demeans a child and shall include harmful Traditional/Customary Practices that are not supported by any medical necessity.

26.

Any person, who is guilty of any other form of child abuse, shall be punished with imprisonment for a term which may extend to 5 years and/or fine.

27. Enhanced punishment after previous conviction - If any person who has been convicted for commission of or abetment or attempt to commit any sexual offence under Chapter II or offence of trafficking in children punishable under section 17, is subsequently convicted of the commission of or abetment or attempt to commit any such offence, he/she shall be punished for the second and every subsequent offence with rigorous punishment for a term which shall not be less than one and a half times the maximum term of imprisonment and fine provided for the offence.

28. Attempt to commit an offence - Whoever attempts to commit an offence punishable under this Act or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence or with both.

29. Abetment of offences against children - Any person who abets the commission of any offence against a child under this Act or protects or shields a person accused of such an offence will be shall be liable to the same punishment as for the offence abetted, unless any other punishment is specifically provided for abetment of any offence under this Act, in which case the punishment so provided will be awarded

30. Punishment for false complaints - Whosoever intentionally gives a false information or makes a false complaint about commission of an offence, punishable under this Act, by any person, knowing it to be false, with the intention of defaming, humiliating or harassing that person or a child, shall be liable to punishment which shall not be less than one-half of the maximum sentence provided under this Act for the reported offence.

31. Alternative Punishment -

Where an act or omission constitutes an offence punishable under this Act and also under any other Central or State Act, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence(s) shall be liable to punishment only under such Act as provides for punishment which is greater in degree.

CHAPTER IV

MANDATORY REPORTING

32. Responsibility of person in position of trust or in position of authority -

Any person in a position of trust or authority in relation to the child, who is aware of or has reasonable grounds to believe the commission of or intention to commit any offence under the Act, whether within the family of the child by a member of the family or any other person, shall report the same-

1. in case of any offence under Chapter II (Sexual Offences), to the police and the parent/guardian of the child, unless he/she is the offender, and

2. in case of any other offence, to the parent/guardian of the child, unless he/she is the offender, and the Childline.

33

. Failure to report offences-

1. under section 32 (i), shall be punishable-
1. in case of a person in position of trust, with a term of imprisonment which may extend to 3 months and with fine which may extend to Rs. 10,000/-
2. in case of a person in position of authority, with a term of imprisonment which may extend to 6 months and with fine which may extend to Rs. 20,000/-.
2. under section 32 (ii), shall be punishable-
1. in case of a person in position of trust, with a term of simple imprisonment which may extend to 3 months or with fine which may extend to Rs. 10,000/-
2. in case of a person in position of authority, with a term of simple imprisonment which may extend to 6 months and/or fine which may extend to Rs. 20,000/-.

34.

Responsibility of Studio or Photographer - Any studio/photographic facility owner or functionary related to film/photograph processing work shall report, on coming across any sexually explicit, pornographic and/or obscene audio visual material relating to children, to the police and the Childline.

35. Responsibility of

Tourist Resorts, Hotels - Any person managing or functionary in a Tourist Resort, Hotel, Lodging House or any other place, under whatever name, used for stay of persons, either for short or long duration, who becomes aware of or has reasonable grounds to believe the commission of or intention to commit any offence under the Act, shall be responsible to report to the police and the Childline.

36. Airports and airline staff -

Any airport and/or airline functionary shall inform the police, at the earliest opportunity, in case of reasonable ground to believe that a child, especially of a different nationality than the accompanying adult, is being taken for child sex tourism related purposes.

CHAPTER V

PROCEDURE

37. Information -

Information or complaint about any offence can be given by the child, its parent/guardian, any person in position of authority or trust, Childline, Commission for Protection of Children's Rights or any other person who is aware of or has reasonable grounds to believe about the commission of the offence and is prepared to testify.

38. Jurisdiction -

Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(1) all offences under this Act, excepting as provided in sub-section (b), shall be triable exclusively by the Children's Court constituted under Commissions for Protection of Child Rights Act, 2005, for the area in which the offence has been committed.

(2) in any case where the offender is also a child/juvenile, he/she shall be dealt with by the Juvenile Justice Board under the provisions of the Juvenile Justice Act, 2000, and any of the orders provided under that Act may be passed.

Provided

that until the Children's Court has been constituted for the area, any offence committed under this Act, excepting for cases falling under sub-section (b), shall be tried by a Court of Session.

39. In-Camera Proceedings -

The proceedings under the Act shall be held in camera in cases of sexual violence under Chapter II and may be held in cases of other offences, if the Court considers that the circumstances of the case so warrant or if the aggrieved party so desires.

40. Summary Trials -

Summary trials may be held by the Court in cases of offences punishable under sections 19 (Corporal Punishment), 21 (Bullying), 25 (Other forms of abuse) where the term of imprisonment does not exceed 2 years.

41. Counselling -

The Court may, at any stage of proceedings under this Act, where it considers desirable, excepting in cases of sexual violence under Chapter II and trafficking, direct the accused or the aggrieved child, either singly or jointly, to undergo counseling with any recognized service provider, for a period as directed, under the prescribed conditions and procedures.

42. Cognizability of offences -

All offences under this Act shall be cognizable-

Provided

that offences punishable under sections 19 (Corporal Punishment), 21 (Bullying), 25 (Other forms of abuse) and 30 (False complaints) shall be cognizable only

1. for the purposes of investigation of such offences; and

2. for the purposes of matters other than the arrest of a person without a warrant or without an order of a Magistrate.

43. Bail -

Excepting for offences under sections 19 (Corporal Punishment) and 21 (Bullying), which shall be bailable, all offences under the Act shall be non-bailable-

Provided

that no person accused of any sexual offence against a child under Chapter II shall be released on bail or on his own bond unless –

1. the Public Prosecutor has been given an opportunity to oppose the application for such release, and
2. where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that he is not likely to commit any offence while on bail.

44. Compounding -

Excepting for offences punishable under sections 19 (Corporal Punishment) and 21 (Bullying), which shall be compoundable with the permission of the Court, all offences under the Act shall be non-compoundable.

45. Prohibition of Remission -

Notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being enforced, no sentence awarded under this Act for sexual offences under Chapter II shall be suspended or remitted or commuted.

46. Release on Probation -

Nothing contained under Section 360 of Code of Criminal Procedure Code, 1973, or Probation of Offender Act, 1958, shall apply to a person convicted of a sexual offence under chapter II, unless such a person is under 18 years of age.

47. Fines -

All fines payable under this Act may be determined by the Children's Court or any other court seized of the matter based on the capacity of the accused to pay. Proceeds of any fines imposed as part of punishment for any offence under the Act would be payable to or for the benefit of the aggrieved child, under procedure as prescribed. All amounts recovered as fines are to be deposited in a fixed deposit with a nationalised Bank for a term which will extend until the child attains majority. The Children's Court may direct that the interest be used for the upkeep of the child and the principal retained until the child attains majority. On attaining majority, the child may make a representation to the Children's Court to instruct the nationalised bank to transfer the account in the name of the minor. To ensure that the child does not get cheated, he/she cannot withdraw more than 20% of the principal without the consent of the Children's Court until the child has reached the age of 21 years.

48. Appeal and Revision -

49. Application of Cr.PC -

Save as otherwise specifically provided under this Act, the provisions of the Code of Criminal Procedure, 1973, shall apply to proceedings before the Children's Court.

Chapter VI

MISCELLANEOUS

50. Confiscation of property -

In the case of offences including but not limited to Commercial Sexual Exploitation, Child Pornography and trafficking, the Children's Court may in the case of habitual offenders order confiscation of all self acquired assets from the proceeds of the crime. The proceeds from such assets are to be applied for the welfare of the child victims in accordance with the procedure laid out for fines. In this section "a financial circumstances order" means, in relation to any individual, an order requiring him to give to the court, within such period as may be specified in the order, such a statement of his financial circumstances as the court may require, failing which he may be prosecuted under Section 177 of the IPC.

51. Community Service -

In case of any offences mentioned in Sections Bullying, Corporal Punishment, Other forms of Child Abuse and Neglect under this Act, the Children's Court may determine that the interests of justice are better served by directing the offender to do community service and may impose a 'community penalty' on an offender and may frame rules for the same.

52.

Right to legal aid - In depth consideration of implications, modalities, infrastructure etc. needed.

53. Protection Order

- The Court may, in cases where the offender/abuser is a parent, guardian or a member of the family, and in any other case where it considers it necessary, pass appropriate protection order for preventing further violence/abuse on the child, protecting the child from access by the offender/abuser, protecting the right of the child to confidentiality or any other relief considered necessary in the best interest of the child.

The special provisions in this Act shall be in addition to any protection available to children under the Cr. P. C.

54. Power to remove difficulties etc. –

(1) On the commencement of this Act, the provisions of this Act will prevail over any corresponding provisions of any Central law, provisions of the IPC and any other applicable Indian Laws relating to children without prejudice to any additional rights that may be available to children under those enactments.

(2) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may authorise a review of the processes prescribed under this Act and by order, not inconsistent with the provisions of this Act, remove the difficulty within two years from the commencement of this Act. Any order made under this section shall be laid as soon as may be after it is made before each House of Parliament, and

55. Power to make Rules -

The Government may by notification in the official gazette frame rules to carry out the purposes of this Act. In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters namely: disaster management, maintenance of children's registers and sex offenders registers, community Penalties, child witness protection rules, foster care, mandatory reporting, tourism, children's homes etc. in accordance with national and international obligations and keeping in mind the best interests of the child. Such rules may contain necessary legislative and administrative measures.

56. Applicability- Proceedings may be brought under this Act against and against any foreign citizen who has committed offences against minor children in India or against minor Indian children overseas and against any Indian citizen whether in India or overseas.

57. Severability-

If any part of this Act is struck down by any court of law, it shall not affect the validity of any other part of the Act or the Rules hereunder.