V. Efforts to Ensure Child Protection

December 2012 marked 20 years since India ratified the Convention on the Rights of the Child. Since ratification, the government has adopted various measures to improve the well-being of the country's children, drawing up new laws and launching major initiatives to improve health, education, and the protection of vulnerable children. But implementation, to ensure these laws and initiatives make a difference on the ground, remains a challenge.

Protection of Children from Sexual Offences Act

In May 2012 a major step forward was taken when India's parliament enacted its first law specifically outlawing child sexual abuse.[169] Until then, no legal definitions of child sexual abuse even existed.

Before the Protection of Children from Sexual Offences Act was passed, different forms of abuse were inadequately covered by laws that were not designed to address them. For example, if a girl suffered non-penetrative sexual abuse, the perpetrator could be charged with “assault with intent to outrage the modesty of a woman.”[170] If a boy was abused, then the attacker could be charged under the colonial-era anti-homosexuality law that criminalized “carnal intercourse against the order of nature.”[171] But this would only happen if the police or prosecutor thought the law could cover non-penetrative sexual acts, which was not always the case.[172]

There were also contradictions over the age at which a person could legally have sex and marry.[173] Boys were only allowed to marry once they reached the age of 21, but their age of sexual consent was not defined until this new law was passed, when it was set for both boys and girls at 18. Previously, girls could only marry at 18, while the Indian Penal Code set their age of consent as 16, unless they were married, in which case it was, confusingly, 15.[174]

Most child rights experts have welcomed the Protection of Children from Sexual Offences Act as a major step forward, though they do have concerns with some issues. Many believe that the government should be prepared to bring in amendments to improve the law within two or three years, once the Ministry of Women and Child Development and its civil society partners have had the time to assess its implementation.

Among the law’s strengths are clear definitions of child sexual abuse, including a definition of aggravated assault, applicable in situations in which the attacker is in a position of authority over the child (for example, a policeman or the manager of a residential care facility). The law sets forth rules that the police must follow when interviewing victims so that they are treated with sensitivity. It also provides for the setting up of special courts to exclusively deal with child sexual abuse cases. [175] The law forbids the aggressive questioning of a child during trial, includes measures to protect his or her identity, and orders that the court complete its work within a year. [176]

Experts have criticized several features of the new law. In particular, experts are concerned that 18, the new age of consent, is unrealistically high. Kamini Lau, a New Delhi-based judge who handles cases of sexual violence, has said that “the proposed increase in the age of consent would become regressive and draconian as it tends to criminalize teenage, adolescent sex.”[177]

Another concern is over mandatory reporting. The law says that if people are aware of an incident of child sexual abuse, or think that there might be risk, they must inform the police or face up to six months in prison and a fine.[178] It is far from clear how this will work in practice and how it will be enforced. Child rights groups had campaigned for mandatory reporting to be confined to professionals who come into contact with children, such as doctors or teachers, but even in those cases it would be hard to implement.

Also of concern is that the law states that “where the victim is a child below the age of sixteen years” the court shall presume that the accused “has committed the offence, unless the contrary is proved.”[179] Some child rights groups argue that this is only an extension of the current laws governing rape where a conviction can be secured on the basis of the victim’s testimony alone. Anant Asthana, a child rights lawyer, says this provision is an acknowledgement that “to expect a child to prove its abuse and bring evidence is too much to expect.”[180] However, this provision appears to violate the right to presumption of innocence under both Indian law[181] and the International Covenant on Civil and Political Rights.[182] Finally, the law says little about providing more sensitive medical examinations for victims or the need to provide them with care, treatment, and rehabilitation.

Future amendments of the law should address these key issues.

However, the above concerns notwithstanding, there is hope that if the new law results in more prosecutions, then more victims will be encouraged to report their abuse, and potential attackers will be deterred from abusing children. It is essential that the law is understood and respected by police officers, government officials, and courts across the country. It will be the job of the national and state commissions for the protection of child rights to oversee this, and so it is essential that they be given sufficient resources and manpower. The government also needs to draw up appropriate training programs.

National and State Commissions for the Protection of Child Rights

The National Commission for the Protection of Child Rights is a relatively new institution. Along with its equivalents in some of India’s states, it is playing a key role in improving the status of children across India. With more funding, more support from the central government and better trained staff, it could do a lot more.

Set up in 2007 the NCPCR proposes new legislation, analyzes existing laws and policies, and investigates suspected incidents where children's rights are violated. It can initiate its own investigations or follow up cases referred to it by individuals who feel that their complaints or problems are not being properly addressed by government officials or the police. The commission has quasi-judicial powers and can summon and examine any person under oath.[183]

These powers can be used to great effect. For example, the commission in 2012 led the investigation into the sexual abuse of children at several residential institutions in Haryana. The cases in Haryana amounted to a “systemic failure of the state” according to Vinod Tikoo, the investigator leading the enquiries.[184] He summoned top officials and the police chief to explain what had gone wrong and gave detailed instructions for dealing with the situation. “They have to listen to us,” he said. “They have no choice.”[185]

Tikoo believes that the commission, within a short period since its establishment, has proved itself to be “vibrant and dynamic,” though he admits it could be more effective with more “back up and manpower,” including a special investigations cell and in-house lawyers. NCPCR Chairperson Shantha Sinha said that the commission did not always have the capacity to follow up on complaints sent by individual petitioners.[186]

State governments are also expected to set up their own commissions. However, only 15 states and union territories have formed them.[187] They have powers to recommend but not to implement and so can be ignored. Nina Nayak, the former chairperson of the Karnataka commission, complained that “a bureaucrat once told me that when they receive my recommendations, they just throw them in the dustbin.”[188]

Another problem is that state commissions are not truly autonomous bodies, as envisaged by the law. The state governments control their funding, and often appointments are not transparent. The commissions in some states, such as Rajasthan and Odisha,[189] are actually staffed by serving government officials.[190]

At the same time, their role as independent monitors of government action is more important than ever. They have recently been charged with the massive job of monitoring the implementation of India's landmark Right to Education Act, which compels state governments to provide free education in neighborhood schools to all 6 to 14-year-olds, and contains important provisions on child protection.[191]

The government has also tasked the commissions to monitor the implementation of the Protection of Children from Sexual Offences Act. Shantha Sinha, the NCPCR chairperson, told Human Rights Watch that this required extra support from the government:

For this they also must support a separate division, a research group to look at and study cases that are not reported as well as those that are reported. We'll need to look at compliance and be in touch with the whole criminal justice system. It cannot be part of our routine activity.[192]

The Integrated Child Protection Scheme

Following the publication of its survey of child abuse, the Ministry of Women and Child Development, in 2009, launched the largest ever initiative to improve child protection measures in India, the Integrated Child Protection Scheme (ICPS).[193] Its goal was to strengthen existing institutions and programs and introduce new ones. The most ambitious of these was a plan to appoint social workers and establish committees in every district of the country to specifically look after the rights of children.

According to a paper released by the ministry, it was necessary to roll out the new scheme because of “major shortcomings and gaps in existing child protection institutions, policies, programs, and their implementation at all levels.” This, it said, was because child protection measures had been allocated “meagre financial resources,” which amounted to only 0.03 percent of total government spending on children from 2004-5 to 2006-7.[194] The result was that “most children in need of care and protection, as well as their families, do not get any support and services,” and the majority of services which do exist are “of poor or extremely poor quality.” The ministry also found that many officials appointed to key child protection services were “inappropriate,” and there was an overall lack of training.[195]

Many child protection experts in India have told Human Rights Watch that three years after the launch of the scheme, this situation remains largely unchanged. “The ICPS is a breakthrough in terms of thinking and in terms of highlighting a taboo subject,” one expert said. “The people at the center have devised a good scheme, but those who have to make it operational have no clue.”[196] A child welfare committee member in Uttar Pradesh state complained, “The system only works properly on paper.”[197]

The ICPS is by no means the only social welfare program that the Indian government is struggling to implement. Translating good policies into effective action on the ground is one of the biggest challenges facing India today.[198] Government officials in charge of welfare programs involving children can be extremely overworked and badly resourced. Narendra Tiwary, a divisional rescue officer in Uttar Pradesh, complained that he has practically no staff to help him and his office does not even have a computer. “The government is not aware of the true reality on the ground, even the state government doesn't understand,” he said.[199]

Many difficulties arise simply because India is a huge and diverse country. As a federal state, it is to a large extent administered not by the central government in New Delhi, but by its twenty-eight states and seven smaller union territories. The Ministry of Women and Child Development might actually have designed the ICPS and allocated funds for it, but it is up to the individual states to implement. In a meeting with Human Rights Watch, Minister of State (Independent Charge) for Women and Child Development Krishna Tirath admitted that while her officials could instruct the state governments, they did not always, “respond properly.”[200]

A government analysis of the scheme at the end of 2011 found that because many states and territories had given such a low priority to child protection, they had been slow to submit proposals for funding from the central government. Once they received it, they were then slow to spend it. In fact, only four states had spent everything they had received during 2010-11. Of the approximately INR 1073 crores (US$200 million) allocated over five years for the ICPS, only about INR 308 crores (US$60 million) was spent or earmarked during its first three years.[201]

It would be wrong to blame only the regional governments for this, however. A senior staff member for an NGO working on child rights in several parts of the country said the central government had given states few instructions on how to implement the scheme, and they were unprepared for the task. She said:

It's a hell of a job. These departments are already dealing with massive problems. Senior bureaucrats in charge of rolling out the ICPS are often unqualified and untrained. They have no experience of dealing with child rights and are still figuring things out.[202]

Another expert said that many civil servants saw child protection as a peripheral issue, much less important than education. He said that the government needed to do much more to train and recruit a dedicated child protection “cadre.” “The whole bureaucracy and political class do not think it is very serious,” he said.[203]

The result is that the plan to create a whole new bureaucracy of child protection—including the setting up of state, district, and village-level committees and the appointment of district-level child protection officers—has hardly gotten off the ground.

By contrast, the one element of the ICPS that is not managed by the states has been a relative success. Childline 1098 is run as a partnership of the central Ministry of Women and Child Development and the Childline India Foundation. This NGO launched the service in Mumbai in 1996 as a toll-free helpline for children in distress, and it now operates in more than 200 cities and districts. As of March 2011 it had received a total of 21 million calls.[204] Thanks to new funding it received through the ICPS, it has been able to double its coverage area over the past three years.[205]

In each location, one of 415 local NGOs manages the calls that Childline receives and if necessary can intervene to help children in need. Successful interventions, however, require the support of the police or other government services; without it, staff can spend much of their time trying to get uncooperative or slow-moving officials to take action.[206]

The ICPS is still a relatively new program, and it can make a difference. According to the government, although 100,000 children have already directly benefitted from the scheme, “there is still a long way to go for putting in place a strong safety net for children.”[207]

Child Welfare Committees

Even in India’s wealthier cities, the child welfare committees have inadequate resources to assist the children they are charged with protecting. Raj Mangal Prasad, the chairperson of the Child Welfare Committee for South Delhi—home to India's government elite—has the task of deciding how vulnerable children in the district should be cared for. He says that while his committee can reasonably cope with 10-15 cases a day, it often has to respond to three times that number. Resources are stretched so thin, he says, “We are crumbling.”[208]

Child welfare committees are among the most important child protection mechanisms currently in place in India. They are envisaged to be powerful quasi-judicial bodies of experts that oversee the government's welfare officers and the police, and inspect children’s residential care facilities. The Integrated Child Protection Scheme (ICPS) envisages a dramatic increase in the number of committees. Child rights experts and committee members themselves have told Human Rights Watch that they could do so much more if they were better supported.

Established in 2000 by the Juvenile Justice (Care and Protection of Children) Act, there is supposed to be at least one child welfare committee in each district, funded by the state government.[209] Since the launch of the ICPS, funding has been made available to increase the number of committees across the country. But according to a survey by the Childline India Foundation, by early 2012, fewer than half of India's 640 districts had their own committee.[210]

In some parts of the country, they are well equipped and properly staffed. In Bengaluru, members sit in a large, air-conditioned room and are helped by a data entry clerk on a computer. But in Allahabad, Uttar Pradesh, the committee meets in a tiny and decrepit room with a broken window that it shares with a government worker from another department. There is no privacy for sensitive interviews with abuse victims. Parents and children have to sit on the floor outside, as they wait their turn. This is all in breach of the Juvenile Justice Act Rules which specify that a child welfare committee needs to be “child friendly.”[211] One of the Allahabad members, Anand Agarwal, lamented, “I do think we are making a difference but it's not enough. We do not have staff or the proper facilities to do more.”[212]

Elsewhere in Uttar Pradesh, committee members complain that government officials, including doctors and the police, ignore them. “Government officials don't understand the CWC and don't respect our orders,” the chairperson of one committee told Human Right Watch.[213] One of his colleagues agreed. “When we give an order they must follow our orders, not give an excuse. But we have little powers to make sure things are implemented,” he said.[214]

The relationships that child welfare committees have with local government officials and the police are key to implementing protection policies. But while their orders need to be respected, there is a danger that if the committees work too closely with the authorities their independence will be compromised. Many child rights experts worry that this is happening all too often, with the result that some committees do not exercise their powers to challenge officials who fail to look after children properly or are covering up abuse. The most sensitive cases involve children's institutional facilities, many of which are run by the same state government departments which fund the committees and appoint their members. Said Bharti Sharma, a former chairperson:

CWC members are often not the right people. They are by and large political appointees. Some happen to be good, but they are not focused on the children. If you really want to do the right thing for the children, then you have to fight the state government. You have to struggle.”[215]

Rishi Kant, the coordinator of Shakti Vahini, an NGO, said that many district administrations prefer cases of child sexual abuse to be covered up because they are afraid of scandals being reported in the media. He thinks officials are afraid of their reputations being harmed and future promotions affected. “Ultimately, if these cases get highlighted they are just going to get a bashing,” he said.[216]

Many child welfare committee members are in fact retired civil servants, while in Haryana state, from where some of the worst recent cases of abuse in children's residential care facilities have emerged, the committees are actually chaired by the senior district official, the deputy commissioner. According to Vinod Tikoo of the National Commission for the Protection of Child Rights, “there is a conflict of interest in that. What kind of justice will be made to the child when the deputy commissioner is also in charge of the CWC?”[217] It also means that the child welfare committees are headed by people who cannot give them much time. In Gurgaon, in Haryana, the deputy commissioner admits he is “so busy that it becomes difficult to take time out for the welfare committee.”[218]

Many committee members are also unqualified for the job. The Childline survey found that fewer than a third of the committees were properly constituted. While 83 percent of members have had training on child rights, only 44 percent have received training on juvenile justice systems and child protection.[219] This means that many members simply do not understand the law, its rules, or evidence. Meena Jain, the chairperson of a child welfare committee in Bengaluru, was concerned that there is no “standard operating procedure.” “CWCs can be a very powerful mechanism for child protection,” she said, “but we need well-defined processes.”[220]

Juvenile Justice Act

The key law governing the protection of children in India is the Juvenile Justice (Care and Protection of Children) Act, of 2000, which was amended in 2006.[221] The central government drew up a set of “model rules” for implementing the act, which have since been adopted by individual states and in some cases altered.

The act addresses two categories of children: those in conflict with the law and those in need of care and protection. This is the law that created child welfare committees and special juvenile police units. It also established the rules for monitoring children’s residential care facilities and outlined minimum standards of care. The law also states that “every person, school or other such educational institutions” should abide by guidelines for the prevention of child sexual abuse.[222] However, it is not clear whether any such guidelines have in fact ever been issued.

Child protection experts have highlighted several ambiguities in the law and called for clarifying amendments. For example, while all institutional facilities are supposed to be registered, the act contains no penalties for those which refuse. Minister of State (Independent Charge) for Women and Child Development Krishna Tirath told Human Rights Watch that a new amendment to the law was being drawn up and that this issue was being looked at.[223]

International law

India is a party to the core international human rights treaties that protect children, including the International Covenant on Civil and Political Rights (ICCPR),[224] the Convention on the Rights of the Child (CRC),[225] and the Convention on Elimination of All Forms of Discrimination against Women (CEDAW).[226] These treaties impose an obligation on states at all levels of government[227] to take measures to protect children against sexual violence and abuse[228] and to provide a remedy where fundamental protections have been violated.

The ICCPR not only holds a state responsible for protecting individuals from abusive state action but for responding appropriately and effectively to abuses committed by private actors. According to the Human Rights Committee, the international expert body that monitors compliance with the ICCPR, a state’s failure to ensure rights could violate the covenant if it were “permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.” States in certain areas have “positive obligations … to address the activities of private persons or entities. [For instance, they] have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power.”[229]

The CRC sets out the minimum protections to which children— defined as all persons under age 18— are entitled.[230] The CRC requires that states “undertake to protect the child from all forms of sexual exploitation and sexual abuse.”[231] This includes ensuring that perpetrators of sexual abuse and exploitation are brought to justice.[232] Moreover, the CRC requires states to take all appropriate measures to promote physical and psychological recovery and social integration of child victims of any form of sexual abuse. Such recovery and reintegration should take place in an environment that fosters the health, self-respect, and dignity of the child.[233]

Children’s complaints to the police or other individuals in positions of authority, and their evidence when cases come to court, must be taken seriously. Child victims and witnesses should be treated with dignity and compassion, given effective assistance including information and an opportunity to express their views; to have their safety and privacy fully protected and to be offered reparation.[234]

According to the Committee on the Rights of the Child— the independent international experts entrusted with interpreting the CRC and evaluating countries’ compliance with its obligations— the placing into institutions of orphans or children requiring alternative care from that provided by their parents should be a “measure of last resort and only occur when family-type measures are considered inadequate for a specific child, and that institutionalization is subject to regular review with a view to reassessing the possibility of reunification.”[235] Indeed, the Committee on the Rights of the Child has urged countries to introduce well-resourced foster care systems as an alternative to institutionalized care.[236]

When institutionalization is necessary and in the best interests of the child, strict measures are needed to ensure that such institutions meet specific standards of care and comply with legal protection safeguards. States must ensure effective inspection mechanisms to check on children’s welfare in all institutions, whether they be government or private.[237] Such supervision and oversight should be “systematic.”[238] Moreover, children living in institutions face special difficulties in lodging complaints when they are victims of ill-treatment and sexual abuse, because they are often isolated from independent adults. Such children are entitled to access to effective child-friendly complaints procedures and to be made aware of them.[239]

Given the severity of the issue of child sexual abuse, the Committee on the Rights of the Child has taken an unusual step for an international human rights body and frequently called on governments to increase human and financial resources for programs dedicated to preventing and combating sexual exploitation, when they deem existing resources to be insufficient to the task.[240]