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Looking at loopholes

Sangeeta Barooah Pisharoty
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RIGHTS Child rights activists Bharti Ali and Enakshi Ganguly speak to Sangeeta Barooah Pisharoty about some of the provisions of the Offences Against Children Bill, recently passed by the Union Cabinet

A small step Though definitely welcome, the Bill needs further discussion to address shortcomings photo: reuters
A small step Though definitely welcome, the Bill needs further discussion to address shortcomings photo: reuters

T he Union Cabinet recently passed the Offences Against Children Bill in Parliament. With mounting cases of child sexual abuse in the country, the Bill is definitely a path-breaking shot at stemming such crimes. Much as our child rights activists are excited about the Bill, they also point out its shortcomings. “We feel the Bill needs a thorough discussion at appropriate levels so that the loopholes get plugged,” states Enakshi Ganguly of Haq, one of the few NGOs working for child rights in India. Here, Enakshi along with Bharti Ali, co-director of Haq, decipher for our readers what the Bill has and should have. Edited excerpts from the interview:

What are the shortcomings of the Bill?

The Bill uses the words ‘his will'. It should be replaced with ‘the child's will' to promote gender neutrality in the language of law. Also, in the definition of consent, there are a few concerns, such as, how can there be unequivocal voluntary agreement in the case of children below the age of 16 years or children with mental disability? How will it be decided what constitutes it? Unequivocal voluntary agreement for a specific and limited act will only put the victim to unnecessary questioning to decide on whether the sexual act was different from the one for which willingness was expressed.

The Bill also lacks a focus on compensation and rehabilitation of the victims. Medical examination procedures have not been included in the Bill despite several orders by the Supreme Court, the Delhi High Court and NHRC guidelines. The connection between the Juvenile Justice System and the linkage of the child victims to the Child Welfare Committee is missing. The procedural issues have to be further strengthened, and here too the court orders should be followed. Also, proceedings should be conducted on camera and measures be taken to ensure that the victim is not confronted with the accused. In no circumstances shall a child below 12 years be asked to repeat the statement. The special court should have a panel of psychiatrists, psychologists and experts in sign language, etc. to assist in recording the statement of witnesses as and when requested by the sessions courts. The accused, in case of a family member, should be kept away from the child even after release on bail.

Also, for the first time, the term ‘gang' has been used with reference to sexual assault.

It is appreciated that the Bill is moving beyond ‘rape' to cover various forms of sexual assault, including sexual assault committed by a group of persons, as in the case of a gang rape. However, gang penetrative sexual assault needs an explanation to clarify what constitutes a gang.

Will it make reporting a case of sexual assault on a child easier?

Not really, and that is because of a Section penalising false reporting; it is bound to dissuade many a genuine case.

Sexual harassment by persons in posts of authority or trust has not been covered in the Bill.

It needs to be covered. Also, as experience has shown, it is important to include a specific sub-clause covering acid attack on a child or an attempt for it. There have been several cases where girls become victims of stalking followed by an acid attack when they do not pay heed to the perpetrator. Also, being stripped and paraded naked in public should find specific mention. Besides, there may be forms of abuse that may not amount to assault but may be aggravated forms of harassment which have an equally deep impact.

Haq is also for a separate chapter on sexual assault on children under IPC.

It is important to determine whether this Bill is a social legislation or a criminal law. If it is a criminal legislation designed to penalise sexual crimes, it should ideally be a part of the Indian Penal Code. Since many offences dealt with under the Bill are of serious nature, their criminality should get established through the main criminal law of the land i.e. the IPC. Also, India already has a strong juvenile justice law to deal with the social and reformatory aspects of a crime; that law could be strengthened further to ensure that human rights standards of child protection are met while rehabilitating a child victim.

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