ADV. ROMAAN MUNEEB / ADV. VIQAS MALIK
There is a saying that, “What you allow to happen in your presence is your standard”. It is hard to digest but it needs to be understood that the issue of child sexual abuse has always been rampant in our society and is now becoming very common in Jammu and Kashmir. It is an ugly truth and it is extremely sickening that such issues are either overlooked or dealt without proper alertness. Children may not be the 100% of our population but they definitely are the 100% of our future. Tender age of the child who is sexually abused is transformed into a lifetime of anxiety and depression. Every human has certain memories from his/her childhood and events like these in early life can lead to devastating consequences in the life ahead of such children. Children are defenseless and need security, affection, and tremendous sensitiveness as a result of their physical, mental, and other underdeveloped abilities.
Sexual abuse against children includes all situations in which a child is used for sexual pleasure either by an adult or a juvenile. Sexual abuse of child is not a phenomenon that is common only in a poor household. It also happens within the wealthy, middle class or rich families. There are several unreported cases of child abuse in schools or other educational centers including religious centers. Children who are sexually abused sometimes have to suffer from mental breakdown and need psychological help. The child loses the sense of dignity and self-worth andsuffers from the loss of confidence in the family and relatives.
In 2002, a 14 years old boy was sexually abused by a religious head and after many years along with seven other victims filed a complaint. The survivor was not able to walk properly for several days and this got unnoticed by his family members as well. The accused was a religious head and so he walked free due to his high position in the society. In 2020, a 14 year-old girl in Anantnag District complained of stomach-ache and doctors discovered that she was eight months pregnant. The family of the girl accused a 35-year-old relative of raping her. A 3 year-old child in Pulwama District on June 5, 2020, was allegedly raped by her young cousin and a case was lodged under Protection of Children from Sexual Offences (POCSO) Act. In September 2022, police arrested a person under POSCO Act in Budgam District for sexually abusing a minor. Police arrested another person of Baramulla District in October 2022 under the POSCO Act.There are many shocking incidents which, if shared, are sure to send chills down to our spine.
Around 343 cases (Jammu 97 cases – Kashmir 246 cases) of child sexual abuse were reported in J&K in between January 2020 and November 2020. As per the Ministry of Home Affairs, 196 cases were registered under POSCO Act from 2015 to 2019 in J&K. Other sources state that around 30 cases were registered in 2015, 25 in 2016, 30 cases in 2017, 32 cases in 2018 and 109 cases in 2019 taking the total cases registered to 226.More than one in two of 12,447 children surveyed in 13 other Indian States in 2007 by the Ministry of Women and Child Development reported having faced one or more forms of sexual abuse. The non-profit association Prayaas, in collaboration with UNICEF, did a research on child abuse a few years ago in India. This investigation finds that somewhere around 25% of all children in India have been sexually abused. The Hindustan Times additionally revealed that 50 percent of the children in India have been exposed to sexual, physical or economic abuse.
POSCO cases were always on the rise in J&K but were gone unreported. Since Central Government’s Child Protection Scheme was extended to J&K in January 2018 and after J&K enacted its own POSCO Act in December 2018 after a huge outcry by people on gang rape and murder of an 8 year old girl in Kathua in January 2018, J&K has seen a spike in reporting of child sexual abuse cases and with the revocation of Article 370 in August 2019, the J&K POSCO Act was repealed and replaced by the POSCO (Amendment) Act, 2019. The POSCO (Amendment) Act,2019 defines a child as a person below the age of 18 years and also seeks to protect children from offences such as penetrative sexual assault, aggravated penetrative sexual assault, sexual harassment, aggravated sexual assault, sexual harassment, using child for pornography and storage of pornographic material involving child.
The punishment for such offences is imprisonment between three years to twenty years or more or life imprisonment, and a fine depending upon the offence committed. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine. The Act also provides that the statement of the child shall be recorded at the residence of the child or where he usually resides or at a place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector. The police officer while recording the statement should not be in uniform and shall ensure that at no point of time the child comes in the contact of the accused or no child shall be detained at the police station in the night. The Police officer shall also ensure that the identity of the child is protected from public media unless otherwise directed by the Special Court in the interest of the child.
The rate of reporting of child sexual abuse cases was very low till the J&K POSCO Act was implemented. However, despite of increased reporting of child sexual abuse cases in J&K, there are still many obstacles to reporting and effective disposal of justice in such cases. Increased reporting of child sexual abuse cases is definitely a good sign but child sexual abuse is still a taboo in our society, especially when family members are involved. Parents mostly don’t trust or disregard children who complain against teachers, neighbors and family members, and inadequate reporting mechanisms add to the agony. The NGO’s and people working on the ground in Kashmir for children welfare believe that the spike in the cases does not reflect the actual ground realities. Only 10%-15% cases of abuse are reported in Kashmir. There are a number of rehabilitation centers and counsellors who help such children speak up, but are muted or threatened by the powerful people. The staff hired under the Child Protection Services Scheme to deal with these issues is not properly trained. The helpline numbers are active but the alertness and sensitiveness that is required from the authorities in charge is majorly missing.
Moreover, there are instances where the whistle blowers are either harassed, threatened or sometimes, even jailed for reporting or interfering in someone else’s lives.There are lesser number of children’s homes operational in Jammu & Kashmir whereas there should be one children’s home in every district. A robust policy against child abuse should be incorporated in every school which currently is missing.The police should be empowered and given proper training with regards to the handling of child sexual abuse victims and the polices should be accompanied with psychologists who can assist the officers in child sexual abuse cases. The sensitivity and gravity of such an incident, its impact on the child and the guts shown by the whistle blower or the child himself/herself by reporting the matter are some very important factors which people in authority need to take into view while investigating the matter.
Families in Kashmir are not willing to accept that anyone close to the family can sexually abuse their children. There is silence around this subject and this silence is not something new to Kashmir. The child in these situations usually keeps quiet because the child feels that family members would not believe her/him if he/she accused any person from the family or their relatives of untoward behavior. The children are fearful of society as well because of the social stigma linked to it. The child becomes confused, helpless and is forced to hide the family secret. Parents or their relatives usually hide such cases and make sure the children don’t disclose it to anyone.The parents need to understand that this secrecy i.e. keeping quiet increases the abuse of young child. Keeping quiet about this issue leaves a deep impact on the victims’ mental health.
The victims of child sexual abuse in Kashmir don’t disclose or report it because of the lack of awareness or lack of trust on the authorities or the whole process. The lack of awareness and effective guidelines on the child sexual abuse in J&K leads to insensitive handling of such cases that only increase the suffering of the victim and his/her family. The parents, guardians and caretakers of children need to be made aware about the various methods to cope with such situations and to take proper rehabilitative and legal measures while dealing with such children. Parents can play a pivotal role in realizing their children, who are sexually abused, from the burden of guilt and shame by letting them know that it was not their fault that they have been sexually abused. This approach of parents reduces the burden of guilt and worthlessness experienced by such children. It helps them to rebuild their confidence.
In India there are numerous laws, and arrangements which are intended for the protection of the children from different abuses. However, the present picture on ground and figures provided by different surveys is still very alarming. Article 15 of the constitution, inter alia, confers upon the State powers to make special provision for children. Further Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. It is the need of the hour that the interests and well-being of the child at every stage of judicial process is safeguarded.
The law should be very clear and effective on ground in incorporating child-friendly mechanism and procedures of reporting, recording of evidences, investigation and trial of offences. Once people including the children are made aware of their rights, a fully functional reporting mechanism and trained staff is in place, reporting of cases will surge and whistle blowers, guardians, parents and children too will feel empowered and more secure in handling and reporting such cases. Rehabilitation centers, children homes and sensitivity towards these issues by the people in authority, provision for Special Courts for speedy trail of such offences is highly required.
(Authors are advocates and are associated with Malik and Romaan Law Offices, Srinagar. Email: firstname.lastname@example.org)