INAUGURAL ADDRESS DELIEVRED BY

 HON’BLE MR. JUSTICE SHIRARAJ V. PATIL,

MEMBER, NATIONAL HUMAN RIGHTS COMMISSION,

(FORMER JUDGE, SUPREME COURT OF INDIA)

 ON 19-03-2005 AT DELHI JUDICIAL ACADEMY

 ON THE OCCASION OF WORKSHOP ON ‘CHILD SEXUAL ABUSE’

 

 

I am deeply delighted to participate in the workshop organized for the Judges on Child Sexual Abuse. I consider it appropriate to speak few words on the importance of children who are supreme asset of the country and valuable gift to the humanity.

Gabrial Mistral, the Nobel Laureate said, “We are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait. The child cannot; right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him we cannot answer ‘tomorrow’. His name is ‘today’.

One of the greatest achievements of progressive democracies in the last century is to have recognized the rightful place of the child in the societal fabric. Both in the international forum as well as domestic policies, positive action for the child’s welfare is evidenced by way of various United Nations Conventions, State legislations and judicial interpretations. The efforts toward preserving environment and bringing about sustainable development are aimed at giving our children what is naturally theirs. Child centric human rights jurisprudence has come to be a new dimension to the larger role of law in social engineering.

Starting with the Declaration of the Rights of the Child, adopted in 1924 by the League of Nations that “mankind owes to the child the best it has to give”, there have been many endeavors of the international community in protecting the interests of the child. The Declaration of the Rights of the Child, 1959 and the Convention on the Rights of the Child, 1989 of the United Nations ratified by our country as well, contain legal standards necessary for granting social, economic and cultural rights for children. The Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights, 1966 are the other instruments that convey the rights of the child.

The role and concern of the Indian Supreme Court has been profound in making better the lives of numerous children who were objects of exploitation. 

In Rosy Jacob V Jacob A Chakrammakkal[1] it is observed “Children are not mere chattels, nor are they mere playthings, for their parents. Absolute right of parents over the destinies and the lives of their children has in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.” As a plant needs protection, nourishment and proper environment to grow into a big fruit-bearing tree, a child also needs protection, promotion, nourishment and proper environment to grow into a useful and responsible citizen to serve the nation.

We should remember and remind ourselves that it is only strong, knowledgeable and virtuous children who can make the country strong and great.

Children are innocent, vulnerable and dependent. Abandoning children and excluding good foundation of life for them is a crime against humanity. Millions of children live under especially difficult circumstances – as orphans, street children, refugees, displaced persons, as victims of war and other man-made disasters. Article 39(e) indicates State as the guardian of the health and strength of the tender-aged children to see that they are not abused or forced to enter avocations unsuitable to them compelled by economic necessities.  We must remember that children cannot and should not be treated as chattels or saleable commodities or playthings. They are in flesh and blood with life as much as we elders are and they are also capable of being as great, as good or as useful as we are and even more. Therefore, they are to be provided with all necessary facilities and atmosphere to grow into responsible and useful citizens of the country. For the full and harmonious development of his or her personality, a child should grow up in a family environment, in an atmosphere of happiness, love and understanding. Adults cannot barter away the future of the children. There must be conscious and continuous effort by all the concerned to protect children against any kind of abuse, harassment or exploitation and to take care of them to ensure wholesome development of their personality.

If we neglect and do not provide or meet bare needs of food, health and education of children, heavy price will have to be paid in future. There is need to make people aware and sensitize all the authorities including courts about rights of children as to the importance of their growing as responsible and productive citizens. Educational institutions, Governments, NGOs and media can play vital role in this regard. Voluntary organizations could be powerful means of social mediation and communication in promoting rights of children and equally in preventing their exploitation and suffering. No doubt, in the democratic set up, the most important need is institutional support at the political and policy levels.

It appears from the beginning of the human society the children have been exploited mercilessly and indiscriminately. Child labour has been the cheapest and disciplined.   Children were made to work at home and outside, in factories and fields, in hazardous occupations, in hotels, restaurants and as a domestic aid. Children have been working even at an early age of 6 to 8. Their working hours have been long and their wages have been meager.

Children being supreme asset of the country, they are to be looked after and groomed well not merely on the basis of constitutional or statutory provisions but also with great human touch and concern. We have both obligation and duty towards them. Growing old is mandatory but growing wiser is optional. Let us exercise our option right now in favour of the latter in dealing with children. Continuous and sincere efforts lead to success.

I appreciate the efforts of Socio-Legal Information Centre for organizing the two-day Workshop for the Judges of the subordinate courts on Child Sexual Abuse. I strongly believe that the deeper sensitivity and intensive interest on the part of the Judges shall have great impact on the decision making in cases relating to Child Sexual Abuse, relieving or minimizing trauma of the victims. Child sexual abuse is a grave crime that needs pointed attention and focus from the legislature as well as the judiciary in this country. Presently there are no laws that specifically deal with child sexual abuse cases, although there can be no crimes committed that are worse than those or sexual offences against children. Because such offences are serious torture on body, mind and future of a child.

A criminal trial of victims of child abuse in a way compounds traumatic experiences of the victim repeatedly interrogated, open trials, and the burden upon the prosecution to prove the guilt of the accused which directs attention on the child victim more than accused.

The Constitution of India enables the state to make any special provision for women and children [Article 15(3)]. Children are given equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and the childhood and youth are protected against exploitation.

International Covenant on civil and Political Rights provided that the every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of this family, society and the State.

The United Nations Convention on the Rights of the Child, interalia protects the child from all forms of sexual exploitation and sexual abuse. State Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity and (b) promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment. Such recovery and reintegration shall take place in an environment, which fosters the health, self-respect and dignity of the child.

There are hardly any provisions in the Code of Criminal Procedure as to the rights of the victims. In effect most of the victims of crime are put in position of a witness, totally at the mercy of the law enforcement agencies. While the system per se is not a perverse system; but the law enforcement agencies, unfortunately are not in a position to match the resource powers of the defense.  Because prosecutors are saddled and burdened with many traits with limited or no contact with the victim; the prosecutor is normally dependent on the police to give instructions who in turn do not get the complete facts. There is need for serious and greater coordination among the other agencies in their functioning instead of blaming each other. Agencies and functionaries, such as, police, doctors, prosecutors and Judges should not be averse to any useful suggestions and should not take suggestions, which help in doing justice as interference. Child abuse and child sexual abuse is increasing alarmingly. India is a signatory to the Convention on the Rights of the Child and has also ratified it. The system of trials in cases relating to child abuse and child sexual abuse needs to be improved and made friendly to the child victim. One of the principal reason for low conviction rate is that in the very nature of things there is rarely strong evidence available for a conviction, as the offences of child sexual abuse are mostly committed secretly and in hiding, for lack of medical evidence (absence of medical examination, etc.) and slackness in prosecution in many cases. Low conviction rate is a serious factor, which comes in the way of the child victims or their parents in coming forward to prosecute the cases. In these circumstances, there is an urgent and imperative need to strengthen the system of trying cases relating to child sexual assault by making it child friendly and sensitive.

I am sure that this workshop will do well to serve the purpose for which it is organized. I understand that the Hon'ble Judges of Delhi High Court and excellent resource persons are participating in this workshop. Having regard to the finest resource persons participating in the workshop, looking to the well structured programme on the workshop, and the keenness and interest with which subordinate Judicial officers are participating in the workshop, I hope every good reason to think that the time spent in the workshop will be of great quality and utility. I thank the Socio-legal Information Centre, which has organized this workshop in collaboration with the NHRC for giving this opportunity to inaugurate it. With great pleasure, I inaugurate the workshop and I wish it to deliver goods successfully.