Indian Penal Code (IPC) and Child Sexual Abuse (CSA)

Statistical evidence shows that over 50% of Indian children are victims of Child Sexual Abuse. Yet there are no explicit CSA laws in India.

Indian Constitution, Children and Personal Liberty

Before taking a look at the IPC, it is important to note that the Indian constitution, under various articles, implies that it is the responsibility of the State to provide a healthy environment for children and protect their rights. This means that any shortcomings of the IPC, the Indian legal system and the law enforcement agencies are shortcomings of the Constitution and the State in fulfilling its duties towards its citizens.

Article 39: The state shall, in particular, direct its policy towards securing:

e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength;

f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material

Article 15 (3): Nothing in this article shall prevent the State from making any special provision for women and children

Article 21: Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law

IPC and its deficiencies

The Indian Penal Code does not define laws dealing exclusively with child abuse. This is unlike most other countries in the world. To address cases of CSA, the IPC provides following points of law with their own severe limitations -

1. Section 293 – Sale, etc., of obscene objects to young person

This section penalises the circulation and distribution of obscene objects and print material to anyone under the age of twenty. While the constitution defines children as individuals under the age of sixteen, this law talks about young people under the age of twenty. There is a discrepancy in the law with respect to the definition of a child and in the fact that there is no differentiation made between the crime against a child and a young person. Given the different maturity levels, the impact is bound to be different and hence the punishment should be in line with the damage caused

2. Section 294 – Obscene acts, songs and expressions in public places

Under section 294 of the IPC, any individual found guilty of obscene acts and/or expressions in public places is liable to be imprisoned to a maximum of six months and/or a fine. However, once again there is no specific mention of children in this provision

3. Section 325 - Punishment for voluntarily causing grievous hurt

The law makes intentional grievous hurt caused to any person punishable with a prison sentence of up to seven years and/or a fine. The law is not clear on what constitutes grievous hurt and hence there is no sufficient protection provided under this law for children.

4. Section 354 – Assault or criminal force to woman with intent to outrage her modesty

This law is limited to women and hence does not consider men as possible victims. Thus even if this to some extent safeguards the girl child, the male child is left at the mercy of the other IPC sections to find justice.

5. Section 375 - Rape

To begin with the definition of rape is very narrow - “intentional, unlawful sexual intercourse with a woman without her consent”. Not only does this leave male rape outside of the purview of rape law, it does not differentiate between an adult and a child and does not encompass forced oral/anal sex and sodomy as rape or intention to rape. Also the act is silent if the perpetrator is a female as it is assumed that the offender will be a male.

According to Section 375 a man can have a legal wife of fifteen years of age, but the consensual sex age for girls is defined to be sixteen. To complicate things further marriage laws state that the marriageable age for girls is eighteen and for boys it is twenty-one. Child labour laws define an upper age limit of fourteen. Thus there are a number of confusing points of reference in the law itself as a definition of “child”.

6. Section 376 – Punishment for Rape

This is an exhaustive section specifying rigorous course of action for those in position of authority and ability to earn the trust of people such as police officers, hospitals etc. However, the section is ambiguous on the topic of teachers, schools, orphanages, crèches, etc. as it talks about children’s institutions and as we have seen there are different ways of defining children in the Indian legal literature.

7. Section 417 – Punishment for cheating

Again the law is ambiguous on the definition of cheating; is it cheating in terms of material possessions or cheating an individual emotionally, there is no clarity. How should different acts of cheating be punished deserves a mention as well, however, there is just one simple prison term and/or fine defined for all forms of cheating. At the end of the day, in a common law country like India, the onus then rests on the judges passing a verdict on individual cases. With corruption abound, the sanctity of the verdicts is questionable.

8. Section 452 – House trespass after preparation for hurt, assault or wrongful restrain

This section qualifies trespassing the home of an individual with the intention of causing harm or assaulting, or using that intention to instil fear in any individual. The nature of hurt and assault are not defined and once again there is no particular differentiation between an adult and a child.

9. Section 509 - Word, gesture or act intended to insult the modesty of a woman

Akin to Section 354, this point of law is limited to women leaving male child victims wanting.

In addition to these specific sections, there are other sections of the IPC (302, 323, 324, 326, 342, 343, 344, 363, 366, 458, 503, 506, and 511) that have been used by lawyers to prosecute CSA offenders. However, given that there is nothing that speaks exclusively for the crime itself, all these sections are mere support systems. For example in a case where the child is first kidnapped and then sexually abused, the lawyers could easily use Section 363 and have the offender punished for kidnapping. But the other crime, that of CSA remains unpunished. The scales of justice thus rest on a weak balance.

There was an initiative taken by Women and Child Development (WCD) Ministry in 2005 to introduce the Offences against Children Act, 2005. This Act addressed CSA in addition to physical abuse, sale of children and trafficking in children. The procedures, remedies and punishment were defined and this was seen to be a voice for 40% of India’s population. However, after two years of deliberation, the law ministry rejected the bill stating that “most provisions for child protection already exist in different laws and therefore, there is no need for a separate enactment of legislation.”

This is the strangest declaration given the silence of IPC on explicit CSA crime. The only places that talk categorically of child sexual abuse are investigation procedures are defined such as the amendment to section 273, Code of Criminal Procedure, 1973 which states, “Provided that where the evidence of a person below eighteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court shall, take appropriate measures to ensure that such person is not confronted by the accused.”

Indian Courts and CSA

The rate of disposal of crime against children by Indian courts is very poor. The most comprehensive data available in this regard is that from NCRB –

Crime Head	Cases pending trial in 2007[1]	Compounded / Withdrawn	Convicted	Acquitted/ Discharged	Pending at Year End
Rape (IPC 376)	15,038	0.2%	6.3%	12.0%	81.5%
Murder (IPC 302, 303)	4,606	0.2%	8.3%	9.6%	81.9%
Kidnapping & Abduction (IPC 363 – 369, 371 – 373)	12,116	0.4%	5.1%	10.1%	84.5%

Table 4: Disposal of Cases by Courts of Crimes Committed Against Children During 2007

(Source: National Crime Records Buraeau)

The IPC’s lack of time stipulation and Indian courts overburdened work load (in the absence of a special Children’s Court) leads to delay in handing out justice as highlighted by the above data. In addition, courts inconsistent in their verdict with the higher courts often being lenient. In order to highlight the compounded limitations of these issues of the Indian legal system, let us take an example –

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat

A government servant was charged of assaulting two girls around 10-12 old. The trial court convicted the accused for wrongful confinement (Section 342) and outraging the modesty (Section 509) of the victims. The offender was sentenced to two-and-a-half years' rigorous imprisonment. On further appeal, the High Court, found the accused guilty under Section 376 and Section 511 as to have attempted to commit rape. The Supreme Court, upheld the High Court conviction, however, altered the sentence to 15 months' rigorous imprisonment for the following reasons-

§ the appellant lost his job in view of the conviction recorded by the High Court;

§ he must have suffered great humiliation in the society;

§ the prospects of getting a suitable match for his own daughter have perhaps been marred in the wake of the finding of guilt recorded against him in the context of such offence; and

§ the incident occurred some seven years back and about six-and-a-half years elapsed since the dismissal of appeal by the High Court

With no prescribed CSA laws, there is no definition of the loss and damage suffered by the victim. This implies that justice does not take consequences into consideration while announcing the sentence. The offender is punished only as deemed fit by the presiding judicial officer.

CSA and International Conventions

Indian Constitution’s proclamation of granting a free, dignified and healthy environment for children has been reinforced by the UN Convention on the Rights of the Child, 1989. India ratified the treaty in 1992, articles 19 and 34 of which state –

Article 19

§ States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

§ Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

§ The inducement or coercion of a child to engage in any unlawful sexual activity;

§ The exploitative use of children in prostitution or other unlawful sexual practices;

§ The exploitative use of children in pornographic performances and materials.

Despite having agreed to undertake these obligations over fifteen years ago, the Government of India has made little progress on ensuring legal rights for suffering children.

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[1] This is a sum of cases pending in the last year and the new cases registered in 2007

Protecting and Prosecuting Crime against Women

A Russian lawyer and a journalist supporting his cause, both attempting to bring justice to a murdered rape victim, were gunned down three kilometers from an apex institution of the nation – the Kremlin. Their cause was admirable and their sacrifice noble. The irony of their death place is garish. However, there seem to be more important tasks that the governments world over are attending to, while the givers of life perish at the hands of the immoral and the unlawful.

One would hope, if not expect, that the situation would be different in a nation that has had amongst the longest serving female prime ministers in the world; has a current female head of state and even has a plethora of goddesses worshipped by a throng of staunch male devotees. Statistics, however, beg to differ. India ranks 113th out of 130 nations which were surveyed for gender parity[1]. Rape is the fastest growing crime in the country; faster than murder, robbery and even kidnapping. In fact it is estimated that two women in India are raped every sixty minutes[2]. And it is even more appalling to know that 25% of the reported offenses were committed against minors.

There are two distinct reasons for the growth in these crimes – one is the changing attitude and perception of the masses and the second is related to the law of the land. Given that people and especially women are slowly de-linking the offense from social stigma, there are more of these crimes being reported. Thus it might not be entirely correct to interpret the statistics in isolation. Even if one disregards the supposed growth in crime against women, the mere suggestion of two rapes an hour is horrifying. This is where the law comes into picture and it is saddening to understand that the Indian legal system still does not fully acknowledge the physical, mental and physiological damage caused by such gruesome acts.

Section 375 of the Indian Penal Code (IPC) defines rape as “intentional, unlawful sexual intercourse with a woman without her consent”. Questions that spring to mind immediately are (i) how does the law define forced oral sex and sodomy and (ii) is forced foreplay or engaging in all but penetration with a minor any less offensive. Those conversant with the law would like to state that while Section 375 might be narrow, Section 354 of the IPC does address the acts of forced oral sex, sodomy and even penetration by foreign objects. Further Section 377 of the IPC deals with ‘carnal intercourse against the order of nature’. However, the trouble is that neither of these two sections, acknowledge that violation of the female mind and body other than forced intercourse also tantamount to rape. This leaves a lot of room for perpetrators and their lawyers to get away with lesser than justified punishment[3].

For the culprit to be convicted, evidence is paramount. In the case of a rape, the primary sources of evidence are the physical examination and statement of the victim. Yet again, Indian legal system seems to fail the victim. Section 155 (4) of the Evidence Act requires that the victim be cross examined in the presence of the accused and that a detail of her past sexual history be noted as well. This not only is harsh and senseless but also fundamentally flawed. Research shows that rape victims suffer from acute and extensive psychological trauma during and after the incident. This leads to anxiety, concern for safety and development of mistrust becoming a part of the victim’s life[4]. With this backdrop, it is not far fetched to say that any cross examination in the presence of the one responsible for the trauma will be inaccurate and can potentially lead to further psychological damage. The law which is supposed to protect and preserve, in this one instance fails its purpose!

When it comes to minors the situation is direr. While most other countries in the world have separate laws dealing with child sexual abuse, Indian laws treat these crimes under the same Sections 375, 354 and 377. All the concession that the Indian legal system grants to minors is in terms of (i) Section 293 ‘sale, hire, distribution or circulation of obscene objects of literature to children’, (ii) Section 294 ‘obscene acts or utterances in public places’ or (iii) Section 511 ‘intent to rape’. This leaves the minors more vulnerable than adults who can comprehend the situation and voice their emotions. Stunned and puzzled children, even after expressing their experience, do not find redresses in the courts of law. This status quo is distressing in the knowledge that in the city of Mumbai alone, 60% of rape victims are girls between the ages of three and sixteen[5]!

The Indian Penal Code was introduced in 1860 and the first amendments to laws relating to rape and sexual assault were effected in 1983. In 2004 Sakshi (an Indian NGO) filed a public interest litigation seeking an amendment to the classification of various sexual offences, other than penile/vaginal penetration, as lesser offenses under the Indian Penal Code. The Apex court did not rule in favour of the social welfare organisation. Post that in 2005 that there were minor changes proposed via the Criminal Law Amendment Bill addressing Sections 354, 375, 377 and 509. However, these changes are limited to expediting trials and protecting evidence in case witnesses turn hostile.

I am finally left wondering - if the Russian lawyer and journalist were in India, would their quest to “defend the law against abuse by the state” even see a start?


[1] World Economic Forum
[2] National Crime Records Bureau
[3] Under Section 375, the punishment is seven years and upwards; Sections 354 and 377 are treated as other criminal offences and hence the prescribed punishment is not severe.
[4] See http://en.wikipedia.org/wiki/Rape_trauma_syndrome for further details
[5] The data is slightly outdated : WIN News 1999

Has India Really Arrived?

The July 9th edition of the Economist carried an article with the title “Overconfident India”, claiming that “Indians are complacent about the perils of multi-lateral diplomacy, and much else”. The article which had a very condescending tone evoked a variety of responses from the Indian diaspora in London. There were some who felt that recently the Economist has taken a holier than thou approach towards emerging markets (recently the publication carried a similar article on Russia) which should soften. A few opined that the general judgemental nature of the bi-weekly magazine is on a rise and creating a bad taste in their mouths. Strangely some people I met were indifferent to this article as in their view it made no difference what the Economist had to say, India had arrived. And then there was a bunch, admittedly a minority, which did think the article was based on strong arguments and stating only the obvious albeit a little too abrasively.

After having read and re-read the article and having discussed it with a number of people, I have been trying to figure out where is it that I stand. I am not sure that the tone of the article is acceptable but then the truth of the content cannot be ignored either. As difficult as it is for me to admit, I have to be truthful and say that I do believe that we Indians have let the bull markets drive our confidence to a point where it is now bordering on arrogance. Like the group of indifferent Indians we would like to believe that India has arrived on the global map and we can demand the moon and the stars and the world should deliver.

However, is it really true that we can still tempt global investors to pump their money into our country which desperately needs foreign investment? Is FDI in India still as viable an opportunity? Will FII money get the same returns in India as opposed to say the Middle East? Has India Inc generated sufficient confidence with investors to back them in difficult times? Have our regulators worked with a larger view in mind? Is our legal framework strong enough to handout timely judicious decisions? These are questions that need some honest answers in order for us to be able to really review as to how truly India has arrived.

In the last few years, it is a fact; India has received a record amount of foreign investment. While lower than some other emerging markets, the capital inflow into India had been rising until the credit crunch started. However, if one inspects more closely, most of that investment came as all global investors wanted a piece of the action. The numbers also justify this. From April 2007 – March 2008, while the FDI in the country was c. USD 29.89bn, net FII into the country was also similar at c. USD 29.40bn. In fact this FII figure would have been higher had the market not tanked in 2008 when foreign investors were net sellers of c. USD 10.64bn in the months of February and March. Hence my conclusion that investors came into India to gain from an upward momentum in the stock market not with an intention to invest from a long term basis. This in itself should indicate that we as a country have not arrived. People are not buying into our long term strategy yet.

An infrastructure deficit country, representing a USD 500bn opportunity in the next four years, India should be able to attract a lot more FDI. What is rather interesting is that the highest FDI has come into the services sector (financial and non-financial) which is almost 2.5x that of infrastructure inflow. In fact the cumulative FDI figures from April 2000 – March 2008 indicate that the most attractive investment proposition has been the services sector with 22.64% (financial and non-financial) share of the entire pool, with infrastructure accounting only for 9.35%. There has to be a reason for foreign investors not putting money into Indian infrastructure. Yes, initially infrastructure was a closed sector; however, even with 100% ownership being permitted the sector is not attracting investors. Is it the absence of independent regulators? Is it the fear of governments not being able to fund annuities? Is it the absence of quality strategic partners? There needs to be a reason for this slow moving inflow. And we need to address this. In the absence of a domestic corporate debt market and limited availability of bank funding currently (both domestically and internationally) are we planning to fund the entire spend via equity markets, PE funds and sovereign reserves?

Well it can be proposed that infrastructure and FDI represent areas where interest is just beginning to develop and so over the coming years there is tremendous potential. I will buy that for a while. Let us turn our attention to India Inc in that case and see if we as a country have given the world enough confidence to invest in our propositions because that is the key to unlocking the dollar inflow. Indians are well known for their entrepreneurship and that has never been of any concern. However, corporate governance in India has questionable for quite some time now. To quote our premier Dr Singh from his recent (July 01, 2008) speech at the Jubilee year celebration of the Institute of Chartered Accountants of India, “….I do not find adequate attention being given to corporate governance. Unless Indian firms come to be recognized world wide for good corporate governance they will not be able to compete globally in an increasingly interdependent integrated world. In the era of protectionism few bothered about corporate governance and transparency in accounting and management. Such laxity, however, is no longer possible.” For the head of the nation to say this is publicly indicates that corporate governance is indeed an issue which needs to be addressed. The question is how are we addressing this.

Corporate governance depends on the commitment of managements towards integrity and transparency in business. The legal support provided by the judiciary also goes a long way in determining corporate governance standards in a county. Most of our businesses are promoter backed businesses with decision centres being at the helm of the family. While professionals are employed, in a number of cases, these individuals do not have the authority to make judgement calls. Why talk only about the corporates. Even Indian banks (public and private sector) which have offshore branches have a system where by all decisions are made by the same central committee in India. This decision making process behind closed doors does not suggest sufficient transparency. With a lack of autonomy and accountability it is difficult to retain talent which impairs management quality. With families owning majority of the voting rights in corporate India, sometimes via cross holdings, achieving an impartial vote is difficult. Concentrated shareholding also greys the area between generating shareholder value and creating personal wealth. It becomes even more critical, in countries like India, for the law of the land to protect rights of the shareholders. The English common law legal system, which India follows, could come to our rescue here. India in fact ranks highest in the shareholders’ rights index with a score of 5. However, the rule of law index which measures the implementation of written law shows a different picture. India ranks 41st out of 49 countries ahead only of Nigeria, Sri Lanka, Pakistan, Zimbabwe, Colombia, Indonesia, Peru and Philippines. In fact our judiciary has limited capacity to deal with securities cases. While High Courts of Delhi, Mumbai, Kolkatta and Chennai are equipped to deal with such cases, they can only deal with the cases that belong within their territorial jurisdiction and only if the claim is above a certain threshold.

India’s ranking in the global corruption perception index is not spectacular either. As a nation we rank 74th, down four positions from 2006. That does not sound like progress. In fact Transparency international reports that Indians below the poverty level cough up almost INR 9bn annually to pay for basic necessities such as electricity. In addition, recently the attitude of the Indian government toward the German government offering free information on un-accounted money belonging to Indians, lying in Liechtenstein, has raised eyebrows. While other nations have taken the information provided, Indian government has taken no action and only maintained silence. This does not speak well about our attitude towards transparency and curbing corruption.

Corruption can be cleansed with time and corporate governance can be developed with time. These arguments could be put forth. Well then let us see how our regulators stack up. As opposed to dealing with one or two regulators, Indian corporates need to deal with the government of India, the Reserve Bank of India (RBI) and Securities and Exchange Board of India (SEBI). While the government formulates big picture policies, the RBI and SEBI are responsible for implementation and execution. There is a clear lack of co-operation and co-ordination between the government and the regulatory bodies. Take for example the 2007 budget speech of the finance minister. He announced that post the February 2007 budget, short selling for institutional investors would be permitted. There was no action taken by SEBI until late 2007 when it was announced that short selling would come in effect on 21 February, 2008, however, there is still no sign of this being put into operation anytime soon. Similarly, the same budget spoke about exchangeable bond issuance being permitted. The RBI published the guidelines only in early 2008 and even then the execution framework has not been detailed. For a country that is looking to invite investors these delays just seems too long and irresponsible. And while these are just two instances, many more such examples exist. Investors do not wait for anyone but the right opportunity and if when the cash is available our policies are not, the country will lose out as it has in the past. In fact with multiple bodies governing inflows into India, it is already tedious to set up vehicles investing in the country.

When investigated closely, there is not a single stakeholder of the Indian economy totally developed and ready to take on responsibilities and accountabilities full on. There is still a long way to go for each party involved. How can we then claim that India has arrived?

India is indeed on a growth path, a path that will lead us towards prosperity. However, it is naïve to assume that we have arrived simply because we have been seeing witnessing inflows of capital. It is presumptuous and pretentious. Since the economy has only opened 16 years ago we have only started seeing the colour of money in the recent times. This does not illustrate our supremacy in any way. If we want to continue on the growth path then as a country we need to come out of the current very difficult environment. The global financial markets are in turmoil. Domestic inflation is increasing rapidly caused by the rally in oil prices. A net importer of oil, with subsidies on oil, Indian deficit is only widening. To curb the inflation we need to increase domestic rates which in turn will slow the growth. And a net import economy we have a weak rupee (the rupee depreciated c.9% since Jan 2008) which does not bode well again does it? Let us not forget that we also need to fund the rising food costs and an upcoming election which will eat into the exchequer’s reserves. These are difficult times. Times which call for prudence and perseverance. Times which call for collective measures to be taken. It is high time for India to wake up and smell the coffee!