NEW DELHI: Having emerged as the hottest destination for surrogacy, it is but natural for India to take the lead in evolving a law that safeguards the interests of all the parties concerned, including the child born through assisted reproductive technology (ART). There is no precedent to the proposal under consideration that foreigners or NRIs seeking to rent a womb in India be made to give evidence that their country of residence recognized surrogacy and would give citizenship to a child born through agreement. Both conditions are reasonable as they are designed to deal with the legal uncertainties thrown up by a couple of surrogacy cases that did not pan out in the agreed manner. In the Manji Yamada case, the baby was embroiled in litigation as the commissioning Japanese parents had divorced by the time it was born in India.
And in the subsequent case involving German parents, the twins found themselves in a no-man’s-land as their country did not recognize surrogacy as a means of parenthood. The bill drafted by an ICMR expert committee is in keeping with the recommendations made by the Law Commission in August 2009. There is no way the surrogacy agreements will be enforceable unless the commissioning parents are in a position to take the child back to their country and it is accorded citizenship, which it would have automatically received had it been born to them in the natural course.
Correspondingly, the proposed law will recognise the surrogate child as the legitimate child of the commissioning parents, without there being any need for adoption or even declaration of guardianship. Such an enabling provision cannot however be enforced unilaterally. So, the government cannot just go by the word of the commissioning parents. The safeguards of the child’s interests need to have official imprimatur in the form of certificates from the foreign government concerned.
As a corollary, the legislation also provides that the birth certificate of the surrogate child given by the Indian government will have names of only the commissioning parents. In a bid to prevent abuse of the child, the government is also considering provisions stipulating that at least one of the commissioning parents needs to be a donor of the sperm or the egg. This is based on the assumption that a biological link between the commissioning parents and the surrogate child would reduce chances of abuse. Under the scheme of the proposed law, surrogacy cannot be misused for sex selection and it will be governed by the Medical Termination of Pregnancy Act to prevent unauthorized abortions. It also seeks to provide a measure of privacy to the commissioning and surrogate parents.
NEW DELHI: Following reports of 76 children from Assam and Manipur, most of them minor girls, being rescued from “homes” run by missionaries in Tamil Nadu, the Supreme Court on Wednesday ordered a probe into a possible trafficking racket involving tribal children. The Tamil Nadu police, in its affidavit before the SC, said, “Pastor Shaji was arrested at Somanur in Coimbatore district on February 12 and remanded to judicial custody. Effective steps are being taken to nab the absconding accused Rev Paul.” A Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan accepted amicus curiae Aparna Bhat’s suggestion for a probe into the matter. The National Commission for Protection of Children’s Rights will carry out the probe. Additional solicitor-general Indira Jaising said the TN police had not detailed the facts of the case to the court. “How could these children be taken more than 1,000km away without anyone noticing anything,” Jaising asked.
In this regard Shakti Vahini and Vikalpadhara had approached the National Commission for Protection of Child Rights (NCPCR ) and Ministry of Home Affairs on January 10 , 2010 to investigate and order a CBI enquiry of large scale trafficking of children from North East.
A High Powered Committee (HPC) under the Chairmanship of Union Home Secretary was set up to examine the issues relating to “Review of Rape Laws”. The suggestions made by the HPC have been formulated into The Criminal Law(Amendment) Bill, 2010. The draft Bill has been uploaded on the MHA’s website http://mha.nic.in for information and comments from the general public. Ministry of Home Affairs has also invited views/comments and suggestions of the States and UTs on the draft Bill. The response can be sent by 15th May, 2010.
A national consensus should be built on the method to combat child abuse.
We are supposed to be living in times of “transparency”, whatever that hackneyed expression may mean. There are now very few icons. Fewer are the sacred cows. There are no holds barred at all when it comes to probing the lives of public figures and the functioning of hallowed institutions. The Vatican and the Catholic Church of Ireland have in the past few weeks come under separate clinical scrutinies.
Allegations are flying in the media about Pope Benedict XVI and his older brother Georg Ratzinger (85). First is the charge that the Holy Father, as an Archbishop at the Munich diocese, had approved housing for a priest who had sexually abused an 11-year-old boy. Years later, the priest was said to have been given a suspended sentence for child abuse offences. He is possibly still functioning in Bavaria, although he has not come to adverse notice again. As for the Pope’s brother, for 30 years he was associated with a choir near Berlin that had reported many instances of abuse of choir boys.
Although Ratzinger claims the allegation goes back to a period prior to his time at the choir, one Thomas Mayer surfaced suddenly to complain that he had, in fact, been sexually assaulted by older boys in the choir when Ratzinger was in charge. (This is typical of many instances of sexual attacks on children. The victims remain reticent and come up suddenly with charges after a lapse of decades. This raises credibility problems even if a reported assault did happen.)
Close on the heels of the controversy surrounding the Vatican comes a report from Ireland where the Catholic church is embarrassed by revelations that Cardinal Sean Brady had, way back in 1975, forced at least two child victims to take a vow of secrecy about their experience with Father Brendan Smyth. Brady had been directed by his Bishop to probe the happening reported from counties Louth and Cavan. When interviewed, two abused boys confirmed the physical violation but were asked not to share their stories with anyone else.
The findings were passed up the hierarchy, following which Father Smyth’s right to practise as a priest was withdrawn and he was advised to seek psychiatric help. The matter was not taken to the police nor was anything done to monitor the offender’s activities thereafter.
Shockingly, Father Smyth went on to abuse more children. Ironically, the revelations come 35 years after the abominable happening. While the abuse is still actionable by the police, there is a view that administering the oath of secrecy to the victims by Father Brady itself constitutes an offence. The priest, now a Cardinal, has taken the position that his action of 1975 should not be judged by present-day standards of juvenile safety, and that he was satisfied with what he did in deactivating the offending priest.
There are indications that we have not heard the last of what seems to be a ballooning controversy on the role of the clergy in putting an end to juvenile abuses within the church premises.
It is too early to believe or discard these charges before they are investigated in depth. They can, however, cause immense damage to the Vatican and the Irish Catholic church because child abuse is, rightly, now an explosive subject as it involves conduct that cuts at the roots of civilised behaviour. Even a hint of suspicion that an individual had indulged in it or that an institution had connived at a cover-up could lead to acute embarrassment.
The point is that sexual abuse of children is a reality wherever children are taught or made to live in a group under even a semblance of authority. Residential schools and orphanages are especially vulnerable. In India – not exactly known for transparency until the arrival in recent years of the visual media in full strength – there have been far too many such unsavoury episodes for comfort. Institutional abuse of children is rampant, but it seldom comes out in the open.
Recall the recent charge-sheeting of Dutch national William Heum (56), who has been facing trial since 2002 for child molestation. Recently, he was indicted for possession of child pornography. He is accused of having posted prurient material on the Internet in 2005 and is also said to have made a confession to the police, which he now denies. Heum has been in India for three decades and claims that he is a social worker associated with an orphanage in Mahabalipuram.
India is a favourite destination for foreign tourists looking for child sex, and there are several studies that highlight the laxity in procedures that facilitates access to potential victims. Take, for example, the case of Australian businessman Paul Henry Dean, who made India his home in the late 1970s when he disappeared from his native country to begin a new life as a holy man and healer.
After spending the initial years in an ashram in South India, he migrated to Andhra Pradesh and Orissa where he was living among leprosy patients. He also took to paramedical training of the local youth, aided by the slender knowledge that he acquired watching local doctors in action. It was in Titsagarh (Orissa) that he came to adverse notice for sexual contact with young boys, for which he was reported to the police.
In 2001, cases were initiated against him for engaging in unnatural sex and for violations of the Passport Act. It is also known that statements against him were recorded by the police in 2008. Dean has strongly denied all the charges. One does not know the fate of the investigation. The Australian government has also not shown any great enthusiasm to bring him to book because it is more than 30 years since he fled Australia. This case alone would indicate how easy it is to enter our country on specious grounds and remain here to indulge in objectionable activities.
Despite the fact that our child population is more than 400 million, and several studies – including the one conducted by the Government of India in 2007 – point to sexual exploitation of more than 50 per cent of our children, for the police in India, combating sexual assaults against children is of a low priority. Some senior officers have shown significant interest. They cannot, however, make any difference until officers in the lower rungs, such as deputy superintendents and station house officers, are also sensitised sufficiently so that they look out for prowlers like Dean. But then they need strong legislative support. The law is barely adequate to neutralise those who target hapless children, especially those in the lower economic strata who suffer from parental neglect and a poor school ambience.
Unlike countries such as the United Kingdom, we do not have a specific legislation that deals with sexual offences. The proposed expansion of the definition of “rape” in the Indian Penal Code may not address the growing problem of sexual exploitation of children.
It is gratifying that Union Law Minister M. Veerappa Moily has shown commendable interest in drafting a special law to meet the situation. The Law Commission’s 172nd Report and the National Women’s Commission’s draft recommendations are a good guide to drafting the contemplated law. The Supreme Court in its Sakshi ruling of 2004 suggested that major amendments be made to the existing criminal law or a new Act be enacted to deal with sexual violence against children.
Bringing in a new law goes only half the way in tackling the menace that greatly affects the younger generation. It goes without saying that all of us who have a stake in the welfare of our children need to spread the message against predators looking to satiate their reprehensible appetite for children.
We must remember that child victims of sexual assault experience the same level of trauma as rape victims. Unchecked, this evil poses a grave threat to the health of future generations. This is why there is a need to build a national consensus on how to combat it by strengthening the law and the enforcement machinery such as the police. The media can also play a positive role here.
We urgently need legislation that specifically addresses child abuse.
The Indian Penal Code does not spell out the definition of child abuse as a specific offence
Even the Juvenile Justice Act does not specifically address the issue of child sexual abuse
The government’s decision to introduce a set of guidelines for service providers in the tourism sector in a move to prevent a repeat of incidents like the rape of a Russian girl in Goa recently is indeed a welcome step. The code of conduct envisages, among other things, training tour operators and hotel staff on identifying and reporting potential cases of sexual exploitation of children.
These guidelines will help service providers in the tourism industry to contribute their mite in building a protective environment for children by establishing an ethical policy against commercial sexual exploitation of children. The code of conduct should be displayed in all tourist places of interest, hotels, resorts, etc.
The guidelines, which will go some way in addressing some of the horrifying aspects of child abuse, come as a response to the spate of recent news reports of tourists accused of paedophilia and pornography. While applauding the government’s response, one cannot help but make the point that much more remains to be done in light of the chilling fact that India has the highest number of sexually abused children in the world. A study conducted by the Ministry of Women and Child Development, UNICEF and Save the Children in 2007 brought out some shocking facts about the extent of child abuse in India. Over 53 per cent of children reported having faced some form of sexual abuse. In fact, the study found that two out of every three children were physically abused. But the most shocking revelation is this: Most of the time, the abuse was perpetrated by someone known to the child or in a position of trust and responsibility. Not surprisingly, most children did not report the abuse to anyone.
No special law
Nineteen per cent of the world’s children live in India. Over 440 million people in the country are aged 18 years and below and constitute 42 per cent of the total population. Signing up to the United Nations Convention on the Rights of the Child, India promised to protect its children from all forms of sexual exploitation and sexual abuse. Article 34 (a) enjoins State parties to prevent the inducement or coercion of a child to engage in any unlawful sexual activity. Yet, despite having the dubious distinction of having the highest number of sexually abused children in the world, there is no special law in India dealing with child abuse and child sexual abuse.
The Indian Penal Code does not spell out the definition of child abuse as a specific offence; neither does it offer legal remedy and punishment for “child abuse.” The IPC broadly lays out punishment for offences related to rape or sodomy or “unnatural sex.” The IPC laws are rarely interpreted to cover the range of child sexual abuse; the law relating to terms “sodomy” or “rape” are too specific and do not apply to acts like fondling, kissing, filming children for pornographic purposes, etc.
Even the law mandated with the welfare of children, the Juvenile Justice Act, does not specifically address the issue of child sexual abuse. It is difficult to apply the provisions of existing laws to any case of child abuse as it is easy for a defence lawyer to make use of the legal loopholes to facilitate their client’s escape from punishment. Even if someone does get convicted under the IPC for rape, the maximum imprisonment is a mere two years.
We urgently need legislation that specifically addresses child abuse. The legislation must address all forms of sexual abuse including child prostitution and child pornography. But it should also deal with physical abuse, including corporal punishment and bullying and, trafficking of children. There is urgent need as well to have a functioning administrative system to record and register child abuse cases. Given the fact that the majority of children do not report sexual abuse to anyone, any law must look at mechanisms of reporting and persons responsible for reporting. Children need to be able to go to someone who they know will listen to them, protect them and take action on their behalf.
Merely enacting legislation will not be enough unless this is followed by strict enforcement of the law with accountability defined. Also, parents, teachers and others in the community have a vital role to protect children from sexual exploitation and abuse. Children are the country’s greatest human resource and a measure of the country’s social progress lies in the wellbeing of its children: that they are healthy, educated, safe, happy and have access to life opportunities.
( Ananthapriya Subramanian is Media and Communications Manager with Save the Children.)
23 January 2010 Nearly 20 years after he was accused of using his position of power to molest a teenage girl, and 16 years after his victim’s suicide, a high-ranking Indian police official was last month finally brought to justice. Shambhu Pratap Singh Rathore, a state police inspector general, was convicted of molesting Ruchika Girhotra, a rising tennis star, in 1990. On December 21, the court handed down a sentence of just six months jail time and a $25 fine.
What many in India feel is a miscarriage of justice has prompted a re-evaluation of the widely held belief that India, while it lags behind China by many other parameters, remains morally superior to its economic rival not only because it is a functioning democracy but also because it sees itself as a society governed by the rule of law.The rape trial follows close on the heels of a similar breakdown of the legal system involving the murder of fashion model Jessica Lal. Her killer, the son of a prominent politician, was acquitted in 2006, only to be retried and sentenced to life imprisonment after intense public pressure. The Ruchika case has been splashed across the front pages here since the first verdict was delivered on December 21.
“It shows deep infirmities in our system, which is supposed to bring justice to victims,” said member of parliament Brinda Karat, who is vice president of the All India Democratic Women’s Association. “It highlights a systemic failure.” Under intense public pressure, this week the state of Haryana, where the original incident occurred, registered fresh charges against Rathore that allege he abused his power to scuttle the original investigation, delay his prosecution and harass the victim’s family, eventually driving Ruchika herself to commit suicide. But as television channels and newspapers continue to throw light onto more and more incidents in which police, politicians and other powerful people allegedly used money and influence to subvert justice, the citizenry’s faith in the country’s brilliantly penned, but poorly enforced, laws is at an all-time low. Molested by Rathore, who was both the inspector general of the Haryana state police and the head of the state tennis association at the time, 14-year-old tennis player Ruchika Girhotra sought to punish him by lodging an official complaint.
Investigations stagnated for years after the complaint was filed, during which time Girhotra’s family allegedly suffered constant police harassment, according to new charges levelled by the family on January 5. Rathore allegedly hired goons to vandalise the Girhotras’ home, pressured Ruchika’s school to have her expelled, and got his police cronies to arrest her brother for car theft, according to Pankaj Bhardwaj, the Girhotras’ lawyer. After just three years of this treatment, Ruchika killed herself. She was 17 years old. “(Rathore) was the person who was driving everybody,” Bhardwaj said. “He was the mastermind behind the total conspiracy.”
But the punishment wasn’t over for the victim’s family. Rathore apparently suffered no difficulties because of the criminal charges pending against him. Though technically under investigation for molesting a minor, Rathore was promoted to director general of police in 1994. And over the next 15 years, the Girhotras alleged that Rathore used his position to corrupt the inquest into Ruchika’s death and attempted to bribe the country’s main investigative agency.
In what Bhardwaj says is a first for India, a former joint director in the Central Bureau of Investigation (CBI) has publicly accused Rathore of trying to corrupt the probe into the crime. “He used to come to my chamber and even call up at my residence. He used to offer me favours at various joints. He also tried to influence my investigation team,” R. M. Singh, who headed the probe, told reporters at a recent press conference. When Rathore was convicted, the victim’s family, and the whole country, was outraged by the short duration of the sentence — and Rathore’s beaming smile as he exited the court. But the worst tragedy is that Ruchika’s fate is stunningly common — and the problem appears to be growing worse.
A 19-year delay is nothing to India’s supposed rule of law. At last count, there were nearly 4 million cases pending in India’s 21 high courts, a backlog that means thousands of perpetrators roam free for years and others who are denied bail rot away behind bars — sometimes for longer than the maximum sentence possible for their alleged crimes.
For the fairer sex, it’s even less fair. According to official statistics, crimes against women are rising faster than other offenses, while police continue to go slow in investigating them. “There is 100 per cent negligence by the police in cases where women go to them to report an abuse,” said Yasmeen Abrar, a member of India’s National Commission for Women.
Official records show that it takes the police more than a year to begin investigating nine out of 10 sexual harassment cases, eight out of 10 cases of molestation or cruelty by husbands and relatives, and seven out of 10 rapes and dowry deaths. According to Supreme Court lawyer Mayank Misra, these delays often give the accused the opportunity to intimidate witnesses, harass his accuser, call in political favors and eventually quash the case entirely. Especially, when the perpetrator occupies a position of power.
“There is a nexus between criminals, politicians and the police and bureaucrats,” said Ashok Agarwal, president of the Delhi unit of the All India Lawyers’ Union. In many instances, the police refuse to register cases against politicians, police officials and even powerful criminals, says Agarwal, a prominent public interest litigator. Complainants and witnesses are threatened. Medical evidence is tampered with. Statements of witnesses are wrongly recorded. Cases are delayed in courts, and relevant witnesses are prevented from appearing. All this in the name of the supposed rule of law. Thanks to a crusading media and an outraged public, Ruchika may, in the end, get justice of sorts. The fresh case filed against Rathore on Jan. 5 reintroduces the charge that Rathore abetted Ruchika’s suicide by harassing her and her family — an offence that carries a much more serious penalty than molestation. But even if he has been convicted of molestation, Rathore — who says his accusers are using the media to harass him — has rights, too. And this arbitrary solution is as much an indictment of the system as the court’s original judgment. It is not the rule of law, but rather another subversion of the legal process — this time by the media, the voters, and politicians. The shame is that the last ditch move to render justice at the expense of the law may just convince India’s outraged citizens that they can continue to muddle along.
The Supreme Court Friday asked all states and union territories to “forthwith” set up three types of statutory bodies in all districts, as mandated by a 2000 central law for the welfare of juveniles and children in the country. Two days after ordering Delhi government to establish night shelters for thousand of the capital’s homeless, a bench of Justice Dalveer Bhandari and Justice A.K. Patnaik directed all states to set up statutory bodies under the Juvenile Justice Act, 2000, within six weeks.
“It has become imperative to direct all the states to implement the provisions of the law forthwith and establish Juvenile Justice Board, Child Welfare Committee and special juvenile policing units within 6 weeks from today,” the bench ordered.On a suggestion by Solicitor General Gopal Subramanium, the bench also deputed the National Commission for the Protection of Child Rights as the nodal agency to supervise the implementation of the apex court order.The three statutory bodies that the bench ordered state governments to set up in all districts as per the provisions of the Juvenile Justice Act are: Juvenile Justice Board – a court to try juvenile delinquents, Child Welfare Committees (CWC), and the special police units to handle the cases related to juveniles.The bench gave the order while hearing a 2006 lawsuit by a civil society organisation, Bachpan Bachao Andolan (BBA), which sought implementation of the various provisions of theJuvenile Justice Act, 2000.The bench gave the order as senior counsel Colin Gonsalves, appearing for the BBA, told the court that various key provisions of the law remain unimplemented till date despite lapse of nearly a decade after the central legislation was enacted.During the hearing, the bench singled out poverty as the reason why the children keep returning to workplaces, including the hazardous ones, despite ban on child labour.Citing the example of Brazil, Chile and various Latin American countries, the bench observed that child labour was not unique to India and wanted the government to learn from Brazilian experience, where the government would give some financial incentives to the poor parents of the children withdrawn from workplaces and sent to schools.
We at Shakti Vahini and as Activist working on Child Rights term this order as an important Land Mark in the cause for proper laws on Child Protection.