Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.
The Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.
A Colloquium on human trafficking was organised on Sunday by the state legal services authorities of Punjab, Haryana and UT Chandigarh, in collaboration with the governments of Punjab and Haryana. The event was held at the Chandigarh Judicial Academy and was sponsored by the Union Ministry of Home Affairs.
Eminent speakers and chief guest, Jasbir Singh, Acting Chief Justice of the Punjab and Haryana High Court, discussed concerns related to human trafficking and the possible ways to curb it. Speaking on the occasion, P M Nair, special Director General of CRPF, explained the dimensions, challenges and existing responses on human trafficking. He presented a documentary made by the United Nations, with him as the project head, featuring real life cases of children who were traded for money and appeals made by Bollywood actors like Amitabh Bachchan, John Abraham and Preity Zinta to stop human trafficking.
Shanta Sinha, Chairperson of the National Commission for Protection of Child Rights (NCPCR) and Ravi Kant, President of Sakti Vahini, a Non Governmental Organisation, emphasized that the present legal framework against human trafficking has loopholes and more stringent laws need to be developed. Sinha said that about 80 percent of the present child labour force is employed in the agricultural sector as only 65 procedures are prohibited by the Child Labour Act in India. This leads to more trafficking of children for agricultural sector and work at home based units. Ravi Kant applauded the recent order passed by the Punjab and Haryana High Court to register FIRs for all missing children.
U Sarathchandran, member, Secretary of National Legal Services Authority, New Delhi, elucidated the role of the judiciary along with cases of human trafficking from Bihar and Madhya Pradesh, which were caught and duly handled by the judicial authorities. Justice Roshan Dalvi of Mumbai High Court and Swati Chauhan, Judge at the Family Court, Mumbai, threw light on the legal provisions against trafficking and protection of victims alongwith the prosecution of traffickers.
In his address, Acting Chief Justice of the Punjab and Haryana High court, Jasbir Singh, said, “It is shameful that human beings are treated as commodities today. It’s a gross disruption in moral values and righteousness”. He added that in this regard there is a need to follow the principle of four Ps- prohibition, prevention, prosecution and partnership.
The colloquium was attended by a gathering of more than 500 jurists and other members of the judicial fraternity.
The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
“He shall take care of safety, food and basic amenities of the child”
The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”
According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.
He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.
Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.
Monitoring to continue
The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.
For any social and reformative legislation to be successful, it requires not just the good law but dedicated and motivated functionaries of the criminal justice system as well as the administrative wings of the govt in addition to responsive and responsible society. In the absence of these prerequisite, the law is but just a piece of paper and can never hope to make the impact it was intended to make.
The same stands true for our Juvenile Justice system as well. the object of juvenile justice system is prevention (ensuring that children do not come in conflict with the law), diversion (that children are kept away from formal criminal justice system and into community based and restorative processes to prevent repeat delinquency), protection ( of CICL from human rights violations and the children from exploitation and abuse). the mission being to not to simply punish the violators but to help the young violators of law to get back in the society on the right path. The focus being to look into the complexity of the life situation of the child and thus offering commensurate rehab program in the best interest of the child. Further, in case of CNCP, to reach out to them and ensure their proper care and rehabilitation. Thus ensuring aftercare and reintegration of all the children who have been left out, back into the society.
Considering these objectives, it was felt that the existing machinery was not in sync with the need of the children and that it requires a separate juvenile justice system which will cater to the specific needs of the children through a sensitive police, informal and flexible judiciary ready to intervene in the best interest of the child and institutions who are well equipped to design and implement the individual rehab and reintegration programs.
At the police level, a separate system of Juvenile Welfare Officers at the Police Station level, Special Juvenile Police Units at the District levels and State Nodal Unit at the state level were set up to upgrade the treatment meted out to the children at the hands of police to a more humane and sensitive approach. The Child Welfare Committees and Juvenile Justice Boards were also set up to look into the best interest of the child. However it has to be understood that the Juvenile Justice Act is a social legislation, aimed at changing the way our children get treated in the society and the system, and just putting the administrative structure alone is not enough to reach the goals set up by the JJ Legislation, it requires corresponding change in behavior as well as mindset at all levels to make a real impact in the life of a child.
From the police perspective, the JJ act lays down the groundwork of what police is expected to do or work in a given set of circumstance relating to children who are in need of care and protection as well as those in conflict of law, that they are specially instructed and trained and have an aptitude to handle the children. The rules go further and extols the police agency to be proactive. the rules bring out the proactive approach by making SJPUs the watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile and to take serious cognizance of adult perpetrators of crimes against children in addition to other duties mentioned thereof.
Role of police under the JJ Act
Police plays a substantial role in the juvenile justice system be it vis a vis the child in need of care and protection (CNCP) or the child in conflict with law (CICL). How it plays this role i.e., by taking the child along , in his best interest or considering him as any regular criminal or a victim depends on their level of sensitivity and commitment. In almost all the cases of CNCP as well as CICL, the police are usually the first point of contact with the child. This is indeed an important role as it means that the police officer, invariably the first contact point, now determines whether the child becomes the part of the juvenile justice system to begin with or not. And what kind of intervention the officer is going to make in the situation vis a vis the child often determines the future of this child.
The jj act and the modal rules lays specific duties for the police especially SJPUs vis a vis children such as to upgrade the police treatment of all juveniles and the children (Section 63), to coordinate and function as a watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile (rule 84(5)), to take serious cognizance of adult perpetrators of crimes against children and to see to it that they are without delay apprehended and booked under the appropriate provisions of the law (rule 84(6)), identifying CICL and CNCP in association with civil society(rule 84(7)) to name the few.
Child in Need of Care and Prptection: The specific role of police in how to address the situation when a child victim comes within their jurisdiction, is laid down in CrPC as well as JJ Act. This is more the procedural part which at best is but a skeletal and has to be augmented by the right attitude and inclination to do whatever is required in the best interest of the child. The police however, has historically and from the nature if its work profile is more inclined towards law and order and has more of crime criminal orientation. The change from crime and criminal orientation to victim orientation needs loads of efforts, interest and dedication in addition to a sensitized and dedicated police force. Whether it’s a case of physical, emotional or sexual abuse of the child, whether the child has been exploited for his work, whether the child is a street child with nowhere to go, a beggar, whether this child who is in need of care and protection of the law comes within the purview of law requires a sensitive citizen who is ready to intervene as well as a sensitive police force which is duty bound to take such children within its cudgels so that the JJ system becomes operational . These children invariably cannot stand up for themselves and need all the support possible to access to the services available to them under the law. The children being children are afraid of the formal system be it the police which goes to rescue them or the judicial system and the children homes where they are taken. At that point a soft and sensitive approach wherein the child can trust and find a friend and a guide in police will definitely mean a new life for the child and give him courage to break out of the shackles and rise towards a better destiny in addition to helping the police to nail the culprits.
There have been instances where in the children were so afraid of police with stories as well as image of police brutality that it often took lot of time to allay their fears and establish a congenial rapport with them, remove that hostility and build a confidence that police is acting in their best interest.
Child in Conflict with Law
First of all it has to be realized that any interaction with a juvenile delinquent is an opportunity to prevent him from committing the crime again. This missed opportunity often leads to juveniles downslide into involvement in repeated, serious and often violent crimes.
The jj act gives lot of discretion to police while dealing with children. The very concept of giving the discretion is so that the police person can act responsibly in the best interest of the child. As stated earlier, the police at the first point of contact with CICL and decides whether the child will be a part of criminal justice system at all or not. Thus the most important decisions in law enforcement are made by the police officers. At this point of contact is required the most balanced and appropriate response.
Under the JJ Act there are three categories of juvenile offenders, firstly those involved in petty offences where in the police officer has been given the discretion to sort the matter at the PS itself without resorting to any procedural requirements. The second category is of juveniles involved in non serious offences i.e. those entailing punishment of less than 7 years under the IPC. In this category the police officer can apprehend the juvenile only when it is in his best interest and then also can state that the child be treated as CNCP rather than the one in conflict with law. In serious offences wherein the punishment is more than 7 years, the police officer again has discretion on how he wants to treat the child. Thus the discretion comes with a responsibility to see to it that the police child encounter results in a positive intervention.
What is required to fulfill the objectives of JJ Act is sensitive, proactive and dedicated policing wherein the theory can be converted into practice because on the police interaction lies the outcome of a situation as well as the future of the child. Now the question that arises is how to make the force proactive? what are the kind of officers who are becoming JWOs? what is there orientation and interest? what are the perks and resources available with the commensurate challenges in handling juveniles?
Till these questions are dealt with, we have to make do with getting the job done through administrative directions and strict supervision. Thus we need to develop code of conduct for police personal in the lines of SOPs while dealing with children in different situations. Next step is involving the society at large. We need to rope in NGOs, other public spirited individuals, RWAs and other institutions like state legal service authorities which not only help the police agencies but also act as checks through their feedback mechanisms.
In Delhi Police, the SJPUs were created in each and every district. To bring about attitudinal and behavioral changes, training and sensitization programs were conducted for police officers at two level i.e., the police station level for all the functionaries at all level who are working in the field and at State level for all the JWOs of the Police stations. The idea was to have a sensitized police force at all levels including the field staff that invariably were the first point of contact with the child. The unique part of the police station sensitization programs is that it is being done by the NGOs working in the field of child rights. The NGOs resource persons visit the police stations regularly and interact with the police staff at all levels thus bringing in an outsiders perspective on how Delhi police is responding to children issues.
In addition to this we have an excellent networking with governmental as well as nongovernmental organizations working on child rights. It is a kind of symbiotic relationship wherein both are working for a common goal in an atmosphere of trust, support and mutual respect. The end result is that NGOs and other organizations now work hand in hand with police in the best interest of the child.
PROBLEMS FACED BY POLICE in performing their duties vis a vis children
One of the major problem faced is that there is still no separate exclusive JWO or SJPU in the distt. Role conflict and lack of time as well as lack of logistic support affect the expectations from the police as the time and patience required to deal with the child is seldom there. Some of the other problems faced are
the need for specialized training for appropriate handling of children
the role conflict experienced by the police officer in solving a crime and helping the child.
low community participation in addressing juvenile delinquency.
poor police image and perception makes it difficult to establish a rapport with the child and to work within the community with mutual trust and goals.
police has very little intervention or say when it comes to the orders for release or incarcerations given by the JJBs. police rarely has any role in the after release processes that too when rules state that juvenile delinquency prevention is also one of the role of the JWO. Infect some of the orders of JJB have criticized the police officer from visiting the juvenile offender.
the important point is that the positive efforts of the police do not get reflected in their output as it is measured more on crime and law and order data thus the stakes or value additions for taking on this additional work is not there in our tangible goal oriented organization as well as society.
Need of the hour is to deal with juvenile delinquency and cncp in a holistic manner, addressing at risk families so that preventive strategy can be put in place. At present there are not enough institutions and programs to help the delinquents to re-integrate in society and lead the life without crime. At times the trust that they can indeed successfully do so is also missing. Recently prayas has taken up this initiative and have started a program “yuva connect” in this regard.
Police actions have to be accompanied by actions from other institutions. Police has a limited role and cannot make any promises vis a vis resources, professional counseling and reintegration and on its own has nothing much to offer. What is required is a holistic interdepartmental approach in dealing with the delinquent and preventing them in future. In the absence of any concrete and effective rehab program and liberal courts and the fact that the repeat offenders are ever increasing, forming gangs, becoming hardened and getting involved in heinous crimes, there is chronic frustration in the police and thus the whole JJ system appears to be more symbolic than actually addressing the issue of juvenile delinquency.
Also we need to inculcate responsibility in the juvenile for his acts and omissions, the intervention of JWO should be encouraged to ensure that juveniles do not return to crime. The community service should be encouraged for reparation of their wrongs and last but not the least there is a need to develop competencies to develop the delinquents as productive citizens.
Paper delivered by Ms. Suman Nalwa, Addl.DCP/SPUW&C, Nanak Pura, New Delhi to National Seminar on Access to Justice-What it means to a child on 9th & 10th July, 2011 at Hall No. 6, Vigyan Bhawan, New Delhi
The Supreme Court has held that jurisdiction of Indian courts is not barred while dealing with a case of custody of a child removed by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home.
Giving this ruling, a Bench of Justices V.S. Sirpurkar and T.S. Thakur said: “Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication.”
Writing the judgment, Justice Thakur said: “Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so. Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Cr.PC 1908 as amended by the Amendment Act of 1999 and 2002.”
The Bench said: “The duty of a Court exercising its Parens Patraie jurisdiction, as in cases involving custody of minor children, is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter.”
The Bench said: “Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diaspora across the globe. While intellectual content and technical skills of these youngster find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy.”
It further said: “Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens, issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication. The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child, Kush, aged about 11 years, born in America, hence a citizen of that country by birth.”
In this case, the appellant, Ruchi Majoor, mother of the child, returned to India from the U.S. and obtained interim custody of the child from a trial court in Delhi.
On an appeal from the child’s father, Sanjev Majorr, the Delhi High Court set aside the order, holding that Indian courts had no jurisdiction to decide the issue since the father had already obtained an order from a U.S. court for the custody of the child.
The present appeal by the mother is directed against that order.
The Supreme Court disposed of the appeal while entrusting the child’s custody with the mother, but allowing visitation rights to the father.
Kumar V. Jahgirdhar, president of Children’s Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO, reacting to the judgment, said: “In cases relating to international child abduction, the left behind parents, mostly fathers, are deprived of the child custody. The only solution for preventing this crime is India should immediately sign the Hague Convention on International Child Abduction.”
Two British men were sentenced to six years in jail in India on Friday for sodomising young boys living at a children’s shelter.Supreme Court justices P. Sathasivam and B. S. Chauhan said the men were “evil influences” on the children who had sought safety at the Anchorage Shelter Home in Mumbai in a ruling upholding a 2006 lower court verdict. Duncan Grant and John Allan Waters were accused of sodomy and sexual assault by a 15-year-old boy who lived at the Anchorage Shelter Home in Mumbai. Other boys had made similar complaints.The shelter had been set up by Grant, a London charity worker, with money raised in Britain. Retired Royal Navy Lieutenant Commander Grant and Waters “had sex with children on multiple occasions”, the judges said.
The two men were not in India when the charges were filed in 2001.Grant, who also ran children’s charities in Tanzania, was extradited from the African nation in 2004. Waters was extradited from the United States in the same year after Interpol alerts were issued against the men. According to a 2007 national study in India, half of the 15,000 children and young adults surveyed said they had suffered some form of sexual abuse. A fifth of the child respondents said they had experienced severe sexual abuse, according to the study, conducted by Ministry of Women and Child, Government of India and backed by the United Nations.
In the year 1986, a petition was brought before the High Court of Bombay complaining about the plight of children at various children homes in Maharashtra. In the same petition, the High Court appointed a Committee, namely, the Maharashtra State Monitoring Committee on Juvenile Justice (in short “the Committee”) headed by Justice Hosbet Suresh, a retired Judge of the High Court of Bombay. This Committee received some complaints from the Child Rights Organizations like Saathi Online, Childline and CRY about the mismanagement of Anchorage Shelters, and on that basis, the Committee sought permission of the High Court to visit various Anchorage Shelters.
After visiting various Anchorage Shelters including the one at Colaba and Cuffe Parade, a report was submitted before the High Court.2(b) On the basis of the said report, specifically expressing unconfirmed report of sexual exploitation of children, on 17.10.2001, one Ms. Meher Pestonji telephoned Advocate Ms.Maharukh Adenwala and informed her that some children residing in Shelter Homes were sexually exploited by those who were running these Homes.
On receiving this information, Ms. Maharukh Adenwala met those boys, who were allegedly sexually assaulted, at the residence of Ms.Meher Pestonji to ascertain the truth. After confirming the said fact, Ms. Maharukh Adenwala thought it proper to inform it to the Members of the Committee. After consulting the Committee, Ms. Maharukh Adenwala moved a suo motu Criminal Writ Petition No 585 of 1985 before the High Court.On 19.10.2001, the High Court passed an order for the protection of the children at Anchorage Shelter Homes. On 21.10.2001, one Shridhar Naik telephonically contacted Ms Maharukh Adenwala and informed her that the order of the
High Court giving protection to the children was being misinterpreted by the police and, therefore, certain3 clarifications were sought from the High Court and by order dated 22.10.2001, the High Court clarified the same.
With regard to the sexual and physical abuse at the Anchorage Shelters, on 24.10.2001, Childline India Foundation filed a complaint with the Cuffe Parade Police Station and while lodging the said complaint, Ms. Maharukh Adenwala was also present there. In spite of the fact that a complaint had been lodged, the police did not take cognizance of the offence under the pretext that the matter was sub judice and was pending before the High Court. Since the matter was not being looked into by the police, Ms. Maharukh Adenwala recorded statements of some of the victims and informed the said fact to the Members of the Committee. On 28.10.2001,Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met those victims at the office of India Centre for Human Rights and Law and endorsed that the statements previously recorded by Ms. Maharukh Adenwala were correctly recorded. After ascertaining the correctness of the statements by the Members of the Committee, the said facts were placed before the High Court and it was also submitted that the police4 authorities at Cuffe Parade Police Station were not seriously pursuing the complaint. The High Court, by order dated 07.11.2001, directed the police authorities of the State of Maharashtra to take action on the basis of the complaint lodged by the Childline India Foundation.
Based on this specific direction, Sr. Inspector of Police,Colaba Police Station was directed to investigate in detail the complaint lodged by Childline and to take such action as is required to be taken in law. On 12.11.2001, Colaba Police Station recorded the statement of one Sonu Raju Thakur and the statement of one Sunil Kadam (PW-1) was recorded by Murud police station on 13.11.2001. On 15.11.2001, police ultimately registered an offence at Colaba police station by treating the statement of Sonu Raju Thakur as formal First Information Report (in short ‘the FIR’) being C.R. No. 312/2001 and started investigation.
Though the offence was mainly registered against three accused barring William D’Souza, the remaining two accused, namely, Allan John Waters and Duncan Alexander Grant had already left the country and 5 therefore, on 05.04.2002, an Interpol Red Corner Notice was issued against Allan and Duncan. In pursuance of Red Corner Notice,Allan was arrested in USA and sometimes thereafter Duncan also surrendered before the Court in India. The Metropolitan Magistrate committed the case to the Court of Session and after committal, it was initially assigned to the First Track Court at Sewree. All the three accused pleaded not guilty and,therefore, claimed to be tried.
The Sessions Judge, by judgment dated 18.03.2006, convicted William D’Souza for the offence punishable under Section 377 read with Section 109 IPC, Sections 120B and 323 IPC and under Section 23 of the JJ Act. Allan John Waters was convicted under Section 377 IPC, Section 120B read with Section 377 IPC and Section 373 IPC. Duncan Aleander Grant was convicted under Section 377 IPC,Section 373 read with 109 IPC, Section 372 IPC and Section 23 of JJ Act.
Aggrieved by the said order, William filed Criminal Appeal No.681 of 2006, Duncan and Grant filed Criminal Appeal No. 476 of 2006 before the High Court of Bombay. State Government also preferred Criminal Appeal No. 603 of 2006 before the High Court for enhancement of the sentence of the accused persons. The High Court, vide its common judgment dated 23.07.2008, set aside the order of conviction passed by the Sessions Judge and allowed the criminal appeals filed by the accused and acquitted all of them from the charges levelled against them and dismissed the appeal filed by the State Government.
Aggrieved by the order of the High Court, Childline India Foundation and Ms. Maharukh Adenwala filed Criminal Appeal Nos. 1208-1210 of 2008 and State of Maharashtra has filed Criminal Appeal No. 1205-1207 of 2008 before this Court by way of special leave petitions.
Constitutional provisions relating to children
Children are the greatest gift to humanity. The sexual abuse of children is one of the most heinous crimes. It is an appalling violation of their trust, an ugly breach of our commitment to protect the innocent. There are special safeguards in the Constitution that apply specifically to children. The Constitution has envisaged a happy and healthy 34childhood for children which is free from abuse and exploitation. Article 15(3) of the Constitution has provided the State with the power to make special provisions for women and children. Article 21A of the Constitution mandates that every child in India shall be entitled to free and compulsory education upto the age of 14 years. The word “life” in the context of article 21 of the Constitution has been found to include “education” and accordingly this Court has implied that “right to education” is in fact a fundamental right.
Article 23 of the Constitution prohibits traffic in human beings, beggars and other similar forms of forced labour and exploitation. Although this article does not specifically speak of children, yet it is applied to them and is more relevant in their context because children are the most vulnerable section of the society. It is a known fact that many children are exploited because of their poverty. They are deprived of education, made to do all sorts of work injurious to their health and personality.
Article 24 expressly provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any hazardous employment.This Court has issued elaborate guidelines on this issue. The Directive Principles of State Policy embodied in them Constitution of India provides policy of protection of children with a self- imposing direction towards securing the health and strength of workers, particularly, to see that the children of tender age is not abused, nor they are forced by economic necessity to enter into avocations unsuited to their strength.
Article 45 has provided that the State shall endeavor to provide early childhood care and education for all the children until they complete the age of fourteen years. This Directive Principle signifies that it is not only confined to primary education, but extends to free education whatever it may be upto the age of 14 years. Article 45 is supplementary to Article 24 on the ground that when the child is not to be employed before the age of 14 years, he is to be kept occupied in some educational institutions. It is suggested that Article 24 in turn supplements the clause (e) and (f) of Article 39, thus ensuring distributive justice to children in the matter of education. Virtually, Article 45 recognizes the importance of dignity and ersonality of the child and directs the State to provide free and compulsory education for the children upto the age of 14 years.
The Juvenile Justice Act was enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of such matters relating to disposition of delinquent juveniles.This is being ensured by establishing observation homes,juvenile houses, juvenile homes or neglected juveniles and special homes for delinquent or neglected juveniles.
Even in the case of Vishal Jeet vs. Union of India,(1990) 3 SCC 318 this Court issued several directions to the State and Central Government for eradicating the child prostitution and for providing adequate and rehabilitative homes well manned by well qualified trained senior workers, psychiatrists and doctors.
The above analysis shows our Constitution provides several measures to protect our children. It obligates both Central, State & Union territories to protect them from the evils, provide free and good education and make them good citizens of this country. Several legislations and directions of this Court are there to safeguard their intent. But these are to be properly implemented and monitored. We hope and trust that all the authorities concerned through various responsible NGOs implement the same for better future of these children.
Under these circumstances, the impugned judgment of the High Court acquitting all the accused in respect of charges leveled against them is set aside and we restore the conviction and sentence passed by the trial Judge.
New Delhi: In a rare instance, the Supreme Court has admitted that its earlier judgments, in one and the same case, upholding the death sentence awarded by the trial court and confirmed by the High Court were a mistake and violation of human rights of the accused. The court in a second review upheld the Assam Governor’s order commuting the punishment to life sentence.
A Bench of Justices Aftab Alam and A.K. Ganguly in a recent order said: “Instances of this court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen. On a review of the reasoning in the petition, we find that the finding in the judgment is vitiated by errors apparent on the face of the record.”
Writing the judgment, Justice Ganguly said: “Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislation of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to Rule of Law put into force mechanisms for their enforcement and protection.”
In the instant case, the Assam trial court held Ram Deo Chauhan alias Raj Nath Chauha guilty of murdering four members of a family in March 1992 and slapped the death penalty on him. This was confirmed by the Gauhati High Court and later by the Supreme Court in July 2000.
In a review petition, the convict took the stand that he was a minor aged 16 at the time of the offence and the hence the death penalty could not have been awarded by the courts below.
A three-judge Bench by a majority of 2:1 rejected the review petition and again confirmed the death sentence. But Justice K.T. Thomas, in his minority judgment, felt that since there was a doubt whether Ram Deo was a minor or not when the offence was committed, it would be in the interest of justice to commute death to life imprisonment.
Later, acting on a an article written by Ved Kumari, Professor of the Faculty of Law, University of Delhi, the National Human Rights Commission headed by the former Chief Justice of India J.S. Verma felt that Justice Thomas’ reasoning was the correct approach and recommended that the death sentence be commuted and the Governor accordingly did so.
However, on a writ petition, the Governor’s order was set aside by the Supreme Court in 2009 holding that the NHRC had no jurisdiction to intervene in the matter.
Governor’s order restored
Allowing the review petition against this order, the Bench said: “On a very careful consideration of this issue, this court thinks that in view of various questions of far-reaching importance having been raised in this second review, it may be a travesty of justice if this petition is dismissed. If a person has been guaranteed certain rights either under the Constitution or under an international covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it. We are of the opinion that in doing so, NHRC acted within its jurisdiction.”
The Bench restored the Governor’s order of commutation of the death sentence.
Bill prohibits comments on child, either as accused or victim of an offence, which may lower character or infringe privacy
No report shall disclose address, photograph, family details or school
For violation, Bill suggests jail for not less than one year
NEW DELHI: In an attempt to rein in the media, the draft Protection ofChildren from Sexual Offences Bill, 2010 prevents reporting on any child involved in an offence without “complete and authentic” information and without the consent of the child or his or her guardian. The publisher or owner of the media or the studio or photographic facilities shall be jointly held liable for the “acts and omissions” of his employees.
The Bill, piloted by the Women and Child Development Ministry, seeks to protect children against sexual assault, sexual harassment and pornography, and provide for establishment of special courts for trial of such offences. The gender neutral draft describes a child as an individual under 18.
No person from any form of media or studio or photographic facilities shall, without having complete and authentic information and without the consent of the child or his or her parents or guardian, make any report or present comments on any child who may be a involved in an offence, under this proposed law, either as an accused or as victim, which may have the effect of lowering character or infringing privacy, says one of the provisions of the draft Bill.
No report in any media shall disclose, without the consent of the child or his/her parents or guardian, the address, photograph, family details, school, neighbourhood or any other particular which may lead to revealing the identity of the child. The Bill recommends imprisonment for not less than one year and extending up to two years with a fine or both for anyone violating the provisions.
“Media must be sensitive”
Reacting to the media-related provisions, Press Council of IndiaChairman G.N. Ray said the PCI as an institution did not believe in any kind of blanket gag on the media. “But it has been noticed to the dismay that media has often transgressed its limits as has been seen in the Aarushi murder case,” he told The Hindu.
“The media has to be cautioned and must be sensitive to these issues,” Justice (retd) Ray said, while pointing out that curbing media reporting was a serious issue.
Call for debate
While maintaining the dignity of the child victim is important, the misdeeds of the accused should be brought to light, says Amod Kanth, chairman of the Delhi Commission for Protection of Child Rights.
“There needs to be a proper debate on whether or not the media should be prohibited from reporting on sexual offences against children and the media is one good platform for doing that. We cannot prohibit a discussion on such issues in society and when a debate is initiated, some references are bound to come up.”
Pointing out that the amended Juvenile Justice Act also prohibited identification of children involved in criminal activities, Mr. Kanth said the provision, however, was not being implemented. Another issue to ponder was that of a child who was not alive, and the mention of gory details in the media to damage the reputation and dignity of the child and the reputation of the family, he said citing the Aarushi case.
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.)