UNHRC’s examination of India’s periodic report after 28 years: Part 3

This article, the third in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR), pertains to the rights of women and children contained in the ICCPR. It closely examines whether Indian legislation sufficiently complies with India's international obligations.

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Read Part 1 here.

Read Part 2 here.

THE flagship of the United Nations treaty body system will be examining India's fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR).

What are the claims made by India regarding the condition of women and how do they compare with reality?

Violence against women and harmful practices

Paras 45, 53 and 54 of the government of India's report submitted on child marriage state that the Prohibition of Child Marriage Act, 2006 provides for the prohibition and punishment of solemnisation of child marriages.

In Para 53, the government of India's report on sexual violence notes that there exists a legal framework to eliminate violence against women, which has been expanded through an amendment introduced in the Indian Penal Code, 1860 (IPC) whereby specific forms of violence against women, such as acid attacks, disrobing, voyeurism, and stalking, have been criminalised.

Sexual harassment has been defined and penalised under criminal law, the report underlines.

The definition of rape, which was limited to penile–vaginal sexual intercourse, has been expanded to include a range of penetrative and non-penetrative forms of sexual assault, the report points out.

Consent, in the context of rape, stands clearly defined, the report states.

Para 54 of the report highlights that the Supreme Court of India, in Independent Thought versus Union of India, struck down the provision under Section 375 of the IPC and held that marital status does not stand as an exception to the offence of rape where the wife is below 18 years of age.

In Para 56, the government of India claims that it has introduced a scheme in 2019 to set up 1,023 fast-track special courts, including 389 exclusive courts to hear matters pertaining to the Protection of Children from Sexual Offences (POCSO) Act, 2012, across the nation to ensure the time-bound completion of trials relating to sexual offences.

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Besides strengthening the legal framework, steps have been taken at an operational level to effectively address the menace of violence against women, the report claims.

Government claims a pan-India emergency response

A response support system has been established, which provides a single internationally recognised number for all emergencies, with computer-aided dispatch of field resources to a location of distress, is another government of India claim in the report.

One-stop centres are being set up across the country to facilitate access to an integrated system ranging from medical, legal and psycho-social services and temporary support services to women affected by violence, all under one roof, as per the government of India report.

As many as 728 such centres have been approved, of which 595 centres are already operational in the country, the report states.

The Prohibition of Child Marriage Act (PCMA), 2006 and eloping adolescents

Women's rights activists, in response to the abovementioned averments made by the government of India, have clarified that Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006 (PCMA) criminalise persons arranging a child marriage and Section 9 of the PCMA punishes adult men marrying minors.

The PCMA has been used to target eloping adolescents and is used twice as much against elopements or self-arranged marriages than it is used in relation to arranged marriages, with girls' parents lodging the complaints in elopement cases.

Targetting minority communities

In February 2023, the Assam government undertook a crackdown against child marriages by conducting mass arrests of men whose wives were minors when they married, arresting as many as 2,000 men in a single day and detaining them.

The arrests appear to target minority communities as the arrests were limited to minority-dominated areas. It caused great panic, with women becoming apprehensive about receiving medical care at government hospitals.

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The Guwahati High Court allowed a number of applications for bail and anticipatory bail arising out of this spate of arrests and orally noted that the arrests were disruptive and the cases did not require custodial interrogation.

Sudden criminal action to address an issue that requires long-term efforts in educating and empowering women and changing social attitudes would result in further violation of human rights and protests by affected women.

Regression from ICCPR by introducing the death penalty

By way of the Criminal Law (Amendment) Act, 2018 and the Prevention of Children from Sexual Offences (Amendment) Act, 2019, India introduced the death penalty for rape and gang-rape of girls below 12 years of age and aggravated penetrative sexual assault of children below 18 years of age, respectively.

It comes as a violation of Article 6 of the ICCPR and does not advance the protection of children from sexual offences. Contrarily, it might deter children from reporting instances of sexual abuse, as government crime data substantiates that the majority of the offenders are known to their victims.

The punitive response also deflects from the poor implementation of the POCSO Act, the lack of child-friendly courts, procedural non-compliance with child-friendly procedures, the lack of functional witness protection and support systems for child victims of sexual offences and the rare award of compensation.

Criminalisation of adolescent sexuality

The POCSO Act and the IPC do not recognise consensual sexual activity among or with older adolescents. Sex with a minor is punishable with a minimum imprisonment of 10 years which may extend to life imprisonment till the remainder of a person's natural life.

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Repeated penetrative sex with a minor spouse, or sex that results in a pregnancy, constitutes aggravated penetrative sexual assault punishable with a minimum of 20 years rigorous imprisonment, which may extend to life imprisonment till the remainder of a person's natural life, or death.

Consensual non-penetrative sexual acts such as kissing are also criminalised under Section 7 of the POCSO Act. Where two underage minors are involved in a sexual relationship, Sections 15 and 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) are applicable, with the possibility of a child above the age of 16 years being tried as an adult for heinous offences.

The criminalisation of consensual sex amongst or with adolescents has been flagged as a concern by several high courts. Studies have indicated that acquittals are the norm in these cases as the victims do not incriminate the accused.

Nonetheless, the accused men and boys are predominantly charged with non-bailable offences such as rape and penetrative sexual assault and are inevitably taken into custody, resulting in the deprivation of their liberty. The liberty of adolescent victim-girls is compromised as they are institutionalised in children's homes when they refuse to return to their parents and insist on being with their partner.

Further, such criminalisation puts young couples in inter-caste and inter-faith relationships at greater risk, acting as a tool in the hands of those enforcing patriarchal and oppressive social norms. It also impedes adolescents' right to barrier-free access to sexual and reproductive health services.

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These concerns, repeatedly raised by high courts across the country, led to a reference of the matter to the Law Commission of India (LCI). The LCI recognised that special courts are "plagued with false cases, especially those arising out of teenage romantic relationships, which are filed by the family members who disapprove of such relationships or come to the forefront due to mandatory reporting requirements" and has urged the government to reform the law.

The lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation.

While all children and adolescents are entitled to protection from sexual exploitation and violence, the approach adopted under the POCSO Act renders adolescents engaged in factually consensual and non-exploitative sexual activity vulnerable to criminal prosecutions for normative sexual behaviour, which is a violation of the UN Convention on the Rights of the Child (CRC).

Liberty and security of person, administration of justice and fair trial

The government of India's report at Para 101 reads: "India is a party to the Convention on the Rights of the Child (CRC) and abides by its principles of taking the best interests of the child as a primary consideration in all actions concerning children. The JJ Act, 2015 was passed to comprehensively provide for care and protection to children found to be in conflict with law.

"Only when a heinous offence is alleged to have been committed by a child of 16 years and above, the Juvenile Justice Board constituted under the Act conducts a preliminary assessment as regards the mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances under which allegedly the crime was committed.

"Pursuant to such an inquiry, if the Board orders that there is a need for a trial of the child as an adult, it may transfer the trial of the case to the Children's Court. This Court then decides whether to try the child as an adult. In any case, death sentence or life imprisonment (without the possibility of release) shall not be passed for any child in conflict with law."

Proposed legislation was based on misrepresented data

Despite a multi-party parliamentary standing committee holding that the proposed legislation— the Juvenile Justice (Care and Protection of Children) Bill, 2014— was based on misrepresented data, "a highly retrograde step likely to serve no purpose", violative of constitutional provisions, international conventions and contrary to Supreme Court judgments on the subject, the Juvenile Justice (Care and Protection of Children) Act, 2015, came to be passed with this provision.

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The provision that allows for the trial of children accused of heinous offences as adults in the JJ Act, 2015 is in direct contravention of Article 2 of the CRC, which prohibits non-discrimination.

Invoking this principle, the Committee on the Rights of the Child urged countries that treat 16 and 17-year-olds as adults to amend their laws to ensure the child justice system is applied without discrimination. The Committee on the Rights of the Child also linked the principle of having the best interests of the child to juvenile justice, stating that a purely punitive approach conflicts with the principles outlined in Article 40(1) of the CRC.

Before the law changed, the Supreme Court, in Subramanian Swamy & Ors. versus Raju Thr. Member Juvenile Justice Board & Ors., considered brain science research, which indicated that adolescents exhibit characteristics such as psychosocial immaturity, susceptibility to peer pressure, and poor impulse control. The court upheld the constitutionality of treating all individuals under 18 years of age within the juvenile justice system, emphasising the distinct treatment based on international obligations and legislative intent.

Section 15(1) of the JJ Act, 2015 has been fraught with arbitrariness

The implementation of Section 15(1) of the JJ Act, 2015 has been fraught with arbitrariness and denial of due process rights of juveniles, as well as the presumption of innocence.

Several high courts and the Supreme Court of India have noticed gross procedural violations such as the lack of a preliminary assessment before transferring the child from the Juvenile Justice Board to the children's court, denial of evidence and reports of the experts to the child's lawyer in contravention of Section 99(2) of the JJ Act, rejection of the application to cross-examine the psychologist, relying on a psychologist's report to determine the child's mental capacity that merely mentions the intelligence quotient (IQ) of a child in conflict with the law and the equation of mental capacity with the capacity to understand the consequences of the offence committed by the child.

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Further, the children's court to whom the matter is transferred for trial as an adult is also required to decide whether there is a need for the child to be tried as an adult.

However, the procedure is rarely followed and children are mechanically tried as adults. If the children's court finds the child in conflict with the law to have committed an offence, the law is silent on whether the court must impose the mandatory minimum sentence prescribed by criminal law or if it has the discretion to impose a lesser sentence.

The existing legislation overlooks the fact that mandatory minimum sentences do not account for the unique characteristics and developmental differences of adolescents.

While the National Commission for Protection of Child's Rights (NCPCR) has created guidelines on how to conduct a preliminary assessment, these guidelines do not address many of the issues pertaining to a preliminary assessment.

The over-reliance on the reports prepared by mental health practitioners to decide judicial transfers of children in conflict with the law, without the application of judicial mind, has been questioned in multiple judgments.

The process of assessing a child's capacity to understand the consequences of their actions and determining their maturity level is inherently subjective and prone to bias. While a child in conflict with the law is protected from disqualification under the JJ Act, this is not extended to children who are tried as adults and found guilty by the children's court, in contravention of the objective of reintegration of the JJ Act.

Some courts also refuse to adhere to bail standards for children in conflict with the law when they are being tried as adults. Many children are unable to fully exercise their right to be heard during these assessments, are often not informed about the assessment process and its implications, and no attempt is made to obtain their informed consent before subjecting them to intrusive tests and assessments.

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The convoluted process of a preliminary assessment may lead to a waiver of the child's privilege against self-incrimination guaranteed under Article 20(3) of the Indian Constitution and create prejudice against them even before the inquiry or trial is completed.

The assessment is sometimes carried out even before charges are framed and children are transferred even if the offence is not 'heinous' due to flawed interpretations of the law.

A breach of the juvenile justice procedure is a significant concern, as a recent report has found that between January 1, 2016 and December 31, 2021, at least 9,681 children had been wrongly incarcerated in adult prisons across India.

As of June 30, 2021, around 1,903 petty cases were found to be pending before Juvenile Justice Boards in Delhi, when according to Section 14 of the JJ Act, such cases should have been terminated as the period of inquiry has exceeded the statutorily prescribed maximum period of six months.

Next week: Government of India on prolonged pretrial detention, custodial deaths and torture