[The bill, which was written by bureaucrats with civil society participation, provides severe punishment that varies from three years to life imprisonment for a broad range of acts, which are spelled out in explicit detail, including penetrative and non-penetrative sexual assault, child pornography and sexual harassment. The legislation also includes measures to protect the identity of the child and help him or her overcome abuse. It applies to all states except Jammu and Kashmir.]
By Nikhila Gill
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Prakash Hatvalne/Associated Press
Mamta, 7, right, with her husband, Santosh, 11, at a mass marriage at Chachoda village in Madhya Pradesh in May 2010. |
The Protection of Children from Sexual Offenses Bill was hailed as a landmark legislation, one that will strengthen the fight against child abuse in India, when it was passed by the upper house of Parliament in May. President Pratibha Patil is expected to sign it in coming weeks.
In a country where over 50 percent of children report having faced one or more forms of sexual abuse, such legislation seems necessary. But an apparent rush to get the bill made into a law has resulted in several crucial points being overlooked, say some activists and human rights lawyers, who also contend that the bill contains a number of confusing and potentially harmful provisions.
While a draft of the bill has been debated for years (it was first written in 2005), it was fast-tracked in Parliament, taking less than two months to pass through both houses of Parliament, and it became a matter for widespread public discussion after Aamir Khan, an actor and producer in the Hindi film industry, featured the topic on his new talk show, “Satyamev Jayate,” last month. The Ministry of Women and Child Development, which was instrumental in drafting the bill, notes that the law was passed on May 10, three days before Mr. Khan’s show aired.
The bill, which was written by bureaucrats with civil society participation, provides severe punishment that varies from three years to life imprisonment for a broad range of acts, which are spelled out in explicit detail, including penetrative and non-penetrative sexual assault, child pornography and sexual harassment. The legislation also includes measures to protect the identity of the child and help him or her overcome abuse. It applies to all states except Jammu and Kashmir.
But it also defines “child” as anyone under the age of 18. An earlier version of the bill set aside a special set of circumstances for 16- to 18-year-olds. If “penetrative sexual assault is committed against a child between 16 to 18 years of age, it shall be considered whether the consent for such act has been obtained,” the old law said. This clause was removed from the final version of the bill on the request of the final committee that vetted it.
Vrinda Grover, a lawyer and human rights activist in New Delhi, is one of many who say that making the age of consent 18, rather than 16, is unrealistic. In India, 18 percent of women are married before the age of 15 and nearly one in every two are married before the age of 18.
“To criminalize all sexual activity until the age of 18 is stupid,” she said in a telephone interview. “People try to occupy a conservative moral high ground, but the reality is very different,” she said.“We like to pretend like we’re an asexual people with the second-highest population in the world.”
Neela Gangadharan, secretary of the Ministry of Women and Child Development, explains the reason for removing the consent clause. Eighteen years is an “internationally accepted” age, she said, at which “a human being is physically, financially, emotionally and sexually more able and capable to handle the process of adulthood which involves not only rights but also responsibilities.”
Distinguishing between children “on the basis of their age may result in depriving them from the very protection for which the law has been conceived in the first place,” she wrote via e-mail.
The wording of the bill appears to make it illegal for anyone to engage in “any other act with sexual intent which involves physical contact” with anyone under the age of 18. It does not include any provision for two people under the age of 18 to have any consensual sexual contact. The minimum sentence for non-penetrative sexual assault is three years, although if the offender is under 18, he or she will go to a juvenile facility.
Meenakshi Ganguly, the South Asia director of Human Rights Watch, said that although the bill is a huge step forward in protecting children, there needs to be a more nuanced approach. “There is a blanket assumptions relating to all sexual behavior. This needs more thinking,” she said.
Further on the subject of sexual acts between minors, Chapter 8, Point 34(1) of the bill states: “Where any offense under this act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.”
Ms. Gangadharan said the bill was meant to protect, not punish, children. “The bill is for protecting children from adult abusers and not to regulate the sexual activity of children,” she said. “The bill does not criminalize sexual activity between children below 18 years as no child is liable for punishment for any of the offenses under the proposed law.”
If a complaint of sexual abuse is made against a child, the child will be “dealt with under the provisions of the Juvenile Justice Act, 2000, which provides for admonishment, advice and counseling of the child and in no case is the child sent to prison or police custody,” she said.
[The glacier remains that way, “save for one thing,” he wrote. “It is occupied by soldiers of the armies of India and Pakistan, far too many of whom have died for nothing save the chauvinistic pride of national leaders who could have solved the problem with common sense and the stroke of a pen if they had the moral courage to do so.”]
By Heather Timmons
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Channi Anand/Associated Press
Indian soldiers undergo training at the Siachen base camp located near the India-Pakistan border in Jammu and Kashmir, in this July 19, 2011 file photo. |
The removal of Indian and Pakistani troops from the deadly, hostile Siachen Glacier is expected to dominate talks between defense officials from the two countries, which began Monday in Rawalpindi.
Demilitarization of the glacier, often referred to as the “highest battlefield on Earth” because of its position at over 20,000 feet in the Himalayas, has been at the top of the agenda before. This time, though, government officials, citizens and military analysts on both sides of the border are lobbying to wind down what many see as a futile engagement.
Thousands of soldiers have been killed during the glacier’s nearly 30 year occupation, mostly from weather conditions and natural disasters. Most recently, an avalanche buried 140 people on the Pakistan side in April, leading to an outpouring of grief. In 2010, soldiers from both sides died in a series of avalanches.
Mohammad Sajjad/Associated PressIn this May 30, 2012 file photo, women in Peshawar, Pakistan, light candles in remembrance of Pakistani soldiers who lost their lives in April this year, when an avalanche hit the Siachen Glacier.
Criticism of the two countries’ governments and military has been intensifying in recent days.
Only the “ego of the two militaries” is preventing demilitarization, Chaudry Ahmed Mukhtar, Pakistan’s former defense minister, said last week, The Express Tribune reported.
India and Pakistan came very close to an agreement in 1992, The Hindu reported over the weekend, citing negotiating drafts at the time and officials involved in the talks, but India’s leaders dragged their feet.
“We had finalized the text of an agreement at Hyderabad House by around 10 p.m. on the last day,” N.N. Vohra, then-defense secretary, told The Hindu. “Signing was set for 10 a.m. But later that night, instructions were given to me not to go ahead the next day but to conclude matters in our next round of talks in Islamabad in January 1993. Of course, that day never came,” Mr. Vohra added. “That’s the way these things go,” he said.
Narasimha Rao was prime minister at the time and the BJP’s [Bharatiya Janata Party] campaign against the Babri Masjid [Mosque] was in high gear. Siachen quickly receded from the government’s list of priorities.
India should revive the peace offer and “put the sad episode behind us,” A. G. Noorani, a lawyer and author, wrote in The Hindu on Monday.
Brian Cloughley, a South Asia analyst, wrote on Sunday in The News International, a Pakistani paper: “It is a very simple matter, because the region was not delineated in 1972 by extension of the Line of Control that divides the regions of Kashmir administered by India and Pakistan. It was a useless, horrible icy waste without inhabitants or any sort of natural resources, and devoid of strategic utility.”
The glacier remains that way, “save for one thing,” he wrote. “It is occupied by soldiers of the armies of India and Pakistan, far too many of whom have died for nothing save the chauvinistic pride of national leaders who could have solved the problem with common sense and the stroke of a pen if they had the moral courage to do so.”
Plenty of supporters remain for continued militarization, on both sides. “Even if India agrees to withdraw, there is no guarantee that Pakistan will not take over those heights after India vacates what it currently occupies,” a Mint newspaper editorial said in May.
“Under the circumstances, Islamabad has to stay firm,” according to an editorial in Pakistan’s The Nation on Saturday. “It must maintain its principled stand on all the disputes. A desire for peace is fine but it does not come easily especially in an atmosphere of mistrust and aggression.”
On the glacier, which hits heights of as much as 22,000 feet, the “fight is against the mountain, not the man,” Declan Walsh of The New York Times wrote in April. “Patrolling soldiers tumble into yawning crevasses. Frostbite chews through unprotected flesh. Blizzards blow, weapons seize up and even simple body functions become intolerable,” he wrote.
The horrid conditions are sometimes compounded by a lack of military preparedness. On the Pakistan side, cough syrup bottles serve as the base for kerosene lamps, empty ghee cans as makeshift hot water heaters and the hopeless, futile nature of the tour of duty seems to dominate the minds of the men who are sent there, as described in this “Letter From Siachen.”
The Siachen engagement has been viewed as a particularly poisonous part of the India and Pakistan conflict for decades. ”This is like a struggle of two bald men over a comb,” Stephen P. Cohen of the Brookings Institution told Barry Bearak of The New York Times in 1999. ”Siachen is the epitome of the worst aspects of the relationship.”
Despite a seeming groundswell of support for demilitarization, Indian officials have already warned that the engagement may continue. “Don’t expect dramatic decisions or announcements on the issue,” India’s current defense minister, A.K. Antony, said last week.
India Ink asks readers from Pakistan and India: Are military and government egos standing in the way of a much-needed demilitarization of Siachen? Or is a military presence on the glacier a necessary part of either India’s or Pakistan’s defense strategy?
