By Avanish Rathi
According to Childline India Foundation, India has the world’s largest proportion of child sexual assault cases. A 2013 survey conducted by United Nations Children’s Fund (UNICEF) confirms this by stating that almost 42% of Indian girls experience sexual violence before they are teenagers. This prevalence of child abuse in India is a significant ongoing problem that needs urgent government attention.
On 5 May 2017, a judgment by the Supreme Court of India took a critical look at the failures of Indian states and issued directives for immediate enforcement. Ultimately, it found the central and state governments’ accountability lacking.
Child abuse laws in India
The Protection of Children Against Sexual Offences (POCSO) bill was passed in 2012 in response to a widely publicised instance of abuse in an Indian orphanage. The Indian parliament also passed the Juvenile Justice (Care and Protection of Children) Act in 2015 to replace a previous 2000 iteration of the law. The 2015 version of the Act includes components such as plans to introduce foster care in India and mandating registration of all institutions housing children in the need of care and protection.
The recent Supreme Court case Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors. has redirected public attention to the issue of child abuse. The case addresses the systematic sexual abuse of children within orphanages in Tamil Nadu. In its judgment, the Supreme Court applies a very broad interpretation to the definition of the phrase ‘child in need of care and protection’. This is to include cases that are not covered by the definition envisaged in the Juvenile Justice Act, 2015, in keeping with the beneficial purpose of the Act.
A failure of the government?
The Supreme Court’s criticism has been directed at the “lack of empathy towards the well-being and welfare of children…and complete apathy with respect to the disturbingly increasing instance of child abuse…”— which it claims the state governments involved have demonstrated. The judgment points out the lack of a concrete list of institutions for the care, protection, and housing of children. Justice Madan B Lokur commented that “it is virtually impossible to find out what is going on within its [the government’s] four walls.” He further notes that if this was the case with government run institutions, private institutions could be potentially worse.
The state governments involved cite a lack of funds and manpower to appropriately address the issue. However, Justice Lokur finds that most states have unspent grants amounting to hundreds of crores of rupees. He further notes that this country does not, if anything, lack manpower. A lack of technology cannot be blamed either, given the modern tools at the governments’ disposal. A lack of willingness to assume accountability for the problem may be a factor.
A perennial problem
This situation is merely a microcosm of the various other problems that plague India. The issue at hand could be anything—conditions in prisons, air pollution, employment of the disabled, drug abuse, or Kashmir. In such situations, the Supreme Court’s judgment criticising the governments’ inaction would be equally applicable.
Various cases addressing these issues are pending before the Supreme Court. The Supreme Court often passes orders that are not followed. Moreover, there are no mechanisms to enforce such orders, making the exercise seem like a fruitless endeavour. As such, issues that require more than just large amounts of money will not be resolved without institutional changes. India needs competent strategists who are pliant enough to raise themselves above ideology to dedicate themselves to a cause.
Social audits as a solution
Clearly, more accountability and transparency are needed. In the face of these problems, a new system may be required for effective change. Perhaps the solution lies in the idea of ‘social audits’ as emphasised by Justice Lokur, although in a different context. A mechanism to ensure full compliance with judgments passed by courts in public interest litigation needs to be implemented. One potential solution is a ‘legal’ ombudsman, whose only job is to file contempt petitions in pursuit of officials for non-compliance orders passed by the courts. Officials that are not compliant need to be reprimanded to reiterate that a lack of competence will not be tolerated.
In forgetting these children, we are creating a class of disaffected, disenfranchised, second class citizens. The Supreme Court and the governments must be working in tandem to assure children at risk receive the legal and practical protection they deserve.
Avanish Rathi is an advocate practising before the Supreme Court of India and the Delhi High Court.
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