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Summary: Despite aiming to protect children from sexual abuse, the bill criminalises all sexual activity involving a child under the age of 18, even if consensual and practiced by under-18s. In doing so, one activist says the bill will essentially regulate sexual activity of minors, and criminalise those who have sex.
[12 June 2012] - The Protection of Children from Sexual Offences Bill (attached) was hailed as a landmark legislation, one that will strengthen the fight against child abuse in India, when it was passed by the upper house of Parliament in May. President Pratibha Patil is expected to sign it in coming weeks. In a country where over 50 per cent of children report having faced one or more forms of sexual abuse, such legislation seems necessary. But an apparent rush to get the bill made into a law has resulted in several crucial points being overlooked, say some activists and human rights lawyers, who also contend that the bill contains a number of confusing and potentially harmful provisions. While a draft of the bill has been debated for years (it was first written in 2005), it was fast-tracked in Parliament, taking less than two months to pass through both houses of Parliament, and it became a matter for widespread public discussion after Aamir Khan, an actor and producer in the Hindi film industry, featured the topic on his new talk show, “Satyamev Jayate,” last month. The Ministry of Women and Child Development, which was instrumental in drafting the bill, notes that the law was passed on May 10, three days before Mr. Khan’s show aired. The bill, which was written by bureaucrats with civil society participation, provides severe punishment that varies from three years to life imprisonment for a broad range of acts, which are spelt out in explicit detail, including penetrative and non-penetrative sexual assault, child pornography and sexual harassment. The legislation also includes measures to protect the identity of the child and help him or her overcome abuse. It applies to all states except Jammu and Kashmir. [The bill] defines [a] “child” as anyone under the age of 18. An earlier version of the bill, [however], set aside a special set of circumstances for 16- to 18-year-olds. If “penetrative sexual assault is committed against a child between 16 to 18 years of age, it shall be considered whether the consent for such act has been obtained,” the old law said. This clause was removed from the final version of the bill on the request of the final committee that vetted it. Vrinda Grover, a lawyer and human rights activist in New Delhi, is one of many who say that making the age of consent 18, rather than 16, is unrealistic. In India, 18 per cent of women are married before the age of 15 and nearly one in every two are married before the age of 18. “To criminalise all sexual activity until the age of 18 is stupid,” she said in a telephone interview. “People try to occupy a conservative moral high ground, but the reality is very different,” she said. “We like to pretend like we’re an asexual people with the second-highest population in the world.” Neela Gangadharan, secretary of the Ministry of Women and Child Development, explains the reason for removing the consent clause. Eighteen years is an “internationally accepted” age, she said, at which “a human being is physically, financially, emotionally and sexually more able and capable to handle the process of adulthood which involves not only rights but also responsibilities.” Distinguishing between children “on the basis of their age may result in depriving them from the very protection for which the law has been conceived in the first place,” she wrote via e-mail. The wording of the bill appears to make it illegal for anyone to engage in “any other act with sexual intent which involves physical contact” with anyone under the age of 18. It does not include any provision for two people under the age of 18 to have any consensual sexual contact. The minimum sentence for non-penetrative sexual assault is three years, although if the offender is under 18, he or she will go to a juvenile facility. Meenakshi Ganguly, the South Asia director of Human Rights Watch, said that although the bill is a huge step forward in protecting children, there needs to be a more nuanced approach. “There is a blanket assumptions relating to all sexual behaviour. This needs more thinking,” she said. Further on the subject of sexual acts between minors, Chapter 8, Point 34(1) of the bill states: “Where any offence under this act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.” Ms. Gangadharan said the bill was meant to protect, not punish, children. “The bill is for protecting children from adult abusers and not to regulate the sexual activity of children,” she said. “The bill does not criminalise sexual activity between children below 18 years as no child is liable for punishment for any of the offences under the proposed law.” If a complaint of sexual abuse is made against a child, the child will be “dealt with under the provisions of the Juvenile Justice Act, 2000, which provides for admonishment, advice and counselling of the child and in no case is the child sent to prison or police custody,” she said. Further Information:
Owner: Nikhila Gill pdf: http://www.crin.org/docs/protection-E.pdf