Month: July 2021

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Inconspicuous Agony of The Innocent: Child Sexual Abuse in India

By: Isiri Rajaneesh

Introduction:

An omnipresent yet a discreet problem in India, child sexual abuse, defined as “the misuse of power and authority, combined with force or coercion which leads to the exploitation of children in situations where adults, or children sufficiently older than the victim to have greater strength and power, seek sexual gratification through those who are developmentally immature, and where, as a result, consent from the victim is a non-concept,”[1]has a slew of negative effects on children and contributes to conditions such as arrested development, psychological, physical and behavioral impacts and may also lead to post traumatic stress, depression, anxiety, etc.

The problem of sexual abuse of children is one which often goes unreported and the innocent victims are just left to agonize in silence. Offensive activities such as molestation, sexual assault, incest, sodomy, etc. are included under the ambit of child sexual abuse. In 2012, the Protection of Children from Sexual Offences Act (POSCO), was enacted in order to protect children from sexual abuses as well as to secure the rights of children. This article analyses the different facets of the act and also looks into a few of its shortcomings.

An abridgement of Child Sexual Abuse in India:

With a population as huge as India’s, the sexual abuse of children is an entrenched social problem and this problem is a culmination of various socio-cultural factors such as poverty, abandonment of children, illiteracy, cultural beliefs and practices pertaining to parental rights and styles, family secrecy, etc.[2]Child sexual abuse is a problem which is as substantial as adult rape, but the line of difference between the two is that children usually aren’t aware that they are being sexual abused or experiencing any kind of abuse for that matter and if they do, they are scared to report it to their parents.

Child abuse is categorized into various types, namely sexual abuse, physical abuse, non-physical abuse, incest, commercial sexual exploitation of children, online sexual abuse and so on. In rural India, especially, girls face discrimination pertaining to education, status, etc. and are most likely to experience infanticide and it was this problem of infanticide, along with child rapes and institutional abuse of children that led to the commissioning of the first, large scale, government sponsored research study to assess the extent and nature of child abuse in India.[3]As according to this study,while for every second a child reported emotional abuse, 69% reported physical abuse and 53% reported some form of sexual abuse and half of the sexual abuses reported were committed by people known to the child.[4]As according to many studies, upto 20% of sexual abuse transpired in families and upto 50% in various institutional settings.[5]In 2018, as per the data released by the National Crime Record Bureau, close to a 109 children faced sexual abuse every day, and the number increases substantially every year.

Until 2012 there was no bona fide legislation in India to address sexual crimes against children. Those sections of the Indian Penal Code which recognise sexual offences against children have a loophole and are not specific to children and other forms of sexual assaults, exploitations, etc. were beyond the domain of explicit crime. In 2012, the government of India enacted the Protection of Children from Sexual Offences Act (POSCO) which criminalizes child pornography, sexual harassment and sexual assault against children. This legislation was a milestone pertaining to the area of child protection.

POSCO and its distinguishing characteristics:

A landmark legislation, acquiring justice for children who have been victims of various sexual offences as well as securing their interests and well-being are some of the objectives of the POSCO act. The act also mandates setting up of special courts in order to accelerate trials of these offences[6]as any delay in the conveyance of justice can discombobulate the lives of the victims and their families, not to mention that facing the complexity of the judicial system, such as intense questioning of the victim in the court, the media hype surrounding the case, etc., can be an enervating journey for victims and their families alike. Some of the features of POSCO are as follows-

  • Copious offences, ranging from complete or partial penetration, non-penetrative sexual assault, to stalking, exhibitionism, child pornography, etc. [7] are criminalised by the act.
  • As according to sections 5 and 9 of the act, perpetrators who are familiar to the victim or are in a position of authority, such as public servants, police officers, etc. attract severe penalties. This includes sexual offences such as gang rape, assault, causing bodily harm, infecting a child with HIV, etc., committed by people in a shared household with the child or by people who are in a position of power pertaining to the victim.[8] The act takes into account a slew of possible scenarios.
  • POSCO takes into account sexual offences committed against both girls and boys who are under the age of 18 and also necessitates punishment for all offenders, disregarding age or gender.
  • An exclusive feature of the act is that the burden of proof is on the accused, i.e., the accused is presumed to be guilty until proven innocent. This is in order to ensure that the child is not burdened to prove that the crime took place.
  • POSCO also provides for trials to be held in a child-friendly way in order to reduce the trauma of the victim and calls for procedures to be held in a sensitive manner according to the needs of the child, for example, section 24 provides that the police reach out to the child rather than the child being taken to a police station and made to report the offence committed.
  • In order to protect the identity of the victim, the act calls for trial proceedings to be held privately and in a sensitive manner, with the victim’s testimony given either in camera or held behind curtains or screens.[9] Also, under the rules of the act, a Child Welfare Committee is to be appointed in order to support and provide assistance to the victim through the investigation and trial procedures

While the enactment and implementation of the act was a welcome move, there were a few shortcomings, which may cause unintended, negative consequences and which are discussed below.

Lacunae in the POSCO Act:

While there were several issues pertaining to the implementation of the POSCO Act, the three main lacunae are age of consent, incumbent reporting and determination of the ages of the victim as well the perpetrator.

As according to the act, all sexual acts are criminal offences if the victim is under the age of 18 years. [10]The law criminalises sexual behaviour for those under the age of 18 and there is no sexual autonomy given to those below 18, which gives birth to complications in cases of consensual sex between two minors, where the victim and the perpetrator become synonymous since they are liable for violating the law which obdurately criminalises sexual activity between minors. There is tension between the letter of the law and the spirit of the law as criminalizing such behaviour would not serve the purpose of the enactment and the notion that the state can restrict individual autonomy on sexual behaviour was rejected.[11]

Pertaining to incumbent or mandatory reporting of child sexual abuse, three main issues arise, which are-

  1. Criminalizing sexual behaviour for those below 18 has led to the problem of health professionals, counsellors, etc. being disinclined to treat the effects of unsafe sexual practices as reporting such behaviour to the authorities breaches the confidentiality of the patient and also leads to the health professionals’ involvement in the case.
  2. The breach of trust would affect the efforts of those institutions and organizations working with backword communities and young people as the communication and relationship with them is placed on trust and the legal duty to report any knowledge of consensual, underage sexual behaviour jeopardises the efforts of those organizations to communicate, educate and work with young people.
  3. There is also the issue of who is responsible for the enforceability of this legal duty. Imposing a legal duty with sanction without a proper structure for its enforcement results in cases of failure to report being overlooked.[12]

Determination of the ages of the victim and the offender is tangled as there are no bona fide guidelines on how to do so. In India, a large proportion of births are not registered andage determination without birth certificates and other official documents is difficult and the measure of constructing a special medical team or board for determining the age cannot be the only conclusive facet. This poses a problem as the ages of both the victim and the perpetrator is important in determining the outcome at the investigation and trial stages under POSCO.

Conclusion:

Child sexual abuse is a very significant problem in India and the enactment of the protection of Children from Sexual Offences Act was a commendable move on behalf of the government of India. This legislation has many distinctive provisions and has made a noteworthy contribution to tackle the problem of sexual abuse of the innocent. With the expeditious increase in the number of child sexual abuse cases being reported, there is no doubt that POSCO has significantly contributed to educating the masses about sexual abuse of children, has accelerated the investigation and trial stages of the offences and has ensured that the trials are held in a sensitive manner, so as to reduce the trauma of the victim. Overall, the law is unique and lucid, but the issues identified can create latent problems, pertaining to the implementation of the law. While the government has enacted a significant legislation to tackle the problem of child sexual abuse, it is paramount to realize that the people of this country are also responsible to provide as safe an environment as they can for children and to make sure that a victim of child abuse does not feel inferior or frightened by building an approachable perspective so as to ensure that the victim does not feel hesitant to talk about the problem they are facing.

 

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Isiri Rajaneesh is a second-year law student, pursuing a BA.LLB [Hons]. at PES University, Outer Ring Road Campus in Bengaluru

 

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[1] David K. Carson, Jennifer M. Foster & Nishi Tripathi, Child Sexual Abuse in India: Current issues and Research, PSYCHOLOGICAL STUDIES (Aug 14,2013), https://www.researchgate.net/publication/271951215

[2] Ibid

[3] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[4] Ibid

[5] Ibid

[6] Ibid

[7] Legal Service India, http://www.legalserviceindia.com/legal/article-4985-child-sexual-abuse-in-india.html

[8] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

 

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Analysis of Insurance laws in India and UAE

By:- Khushi Sharma

Abstract:

Banking can be described as the activities such as depositing and protecting the capital of people and several business organizations and ultimately returning the money as per the wants of the depositors. The term insurance means the process in which the insurer agrees to make good the loss of the insured. There are several types of insurance like life insurance, health insurance etc. For the smooth functioning of banks and financial institutions there are various rules and regulations formed by the legislature. These rules regulate the working of banks and other financial institutions. The banks like any other entity are under the obligation to follow various central and state regulations. The banks majorly deals with the different transactions that takes place on daily basis whereas the financial institutions majorly deals in serving customers to build their businesses. The banking laws are formulated with a view to regulate the lawful fulfillment of the duties allotted to the banks. The insurance laws on the other hand deals with the formation and execution of the Insurance contracts made between the parties.

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Introduction:

The banking system plays a very important role in maintaining the economy and financial strength of a country. In the time, where the world is dynamic in nature, the developing countries wants to become developed and already developed ones are eager to rise higher. It is important to note that for the overall growth of any country, a properly functioning banking system is a major requirement. The banking system becomes a pillar in the development of the nation and its economical position. Nonetheless, banks also play a role of financial supporter of the people of the country.

Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Under the agreement of insurance, the insurer promises the insured to make up for the loss faced by the insured in exchange of an alleged premium fee. The risk against which a person can be insured includes the risk of death,fire,theft,damage etc. Any person can be protected against these risks on the payment of a premium proportionate with the risk involved. Insurance laws are those statutes which deals in policies and claims of insurance.

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Banking Laws in India:

In India, the laws for the administration and functioning of banks were formulated in the year 1949, two years after Independence. They enacted on 16th March,1949 and changed the whole banking system. Due to globalization and development of the businesses and trade, the banking institutions in India were becoming the main focus of the time.

In the British era, the most earlier improvement in the system took place with the foundation of Calcutta bank in 1806 followed by the Mumbai bank in 1867. Emperor bank came into existence in 1920, as a result of which the three banks were united with the position of President of Calcutta, Madison and Massa by the laws of the Bank of India.

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Insurance Laws in India:

In 1912, the very first statute to regulate the life insurance business came into being and was termed as the Indian Life Assurance Companies Act,1912. Then an act of wider scope formed which enacted for all types of insurance and to formulate strict rules for the insurance business.This was called the Insurance Act of 1938. Due to the Life Insurance Corporation Act,all the 245 insurance agencies working in India were converted into one entity in 1956 and called the Life Insurance Corporation of India. In the year 1972 every insurance company was merged into National Insurance, New India Assurance, Oriental Insurance and United India Insurance which had there headquaters in the metropolitan areas. Till the year 1999, no private insurance agency was left in India. The legislature formulated the Insurance Regulatory and Development Authority Act in 1999 which ultimately permitted the private businesses to carry on the insurance business. Further, the foreign investment was also permitted. The constraint to the FDI in the insurance sector was raised to 49% in the year 2015, subject to some conditions.

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Insurance Laws in UAE:

  • The nature of UAE in insurance market

In the Gulf Cooperation Council (GCC), the United Arab Emirates insurance market is the largest. In UAE there are three jurisdictions for insurance; namely the Onshore UAE market, the Abu Dhabi Global Market(ADGM) and the Dubai International Financial Centre(DIFC). In recent years, the Islamic insurance market is also growing within the UAE. The alternative system for cooperative islamic insurance is the Takaful Insurance that is also found there.

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  • The Insurance Regulator

The insurance market of UAE is regulated by the Insurance Authority(IA) which regulates the onshore insurance business. The IA was established in 2007 and the scope of its governance includes insurance and reinsurance companies, entities and intermediaries located in UAE. The UAE cabinet, recently passed an order in October,2020 for the IA to merge with the UAE Central bank. In January 2021, the Central Bank announced that it will take up the regulatory and supervisory responsibility of the insurance sector. Thus we can expect further changes and developments in the insurance sector of UAE in coming years.

Some important provisions of the Insurance law of UAE are worth mentioning-

  • Article 7 of the Insurance law talks about the responsibilities of the Insurance Authority.
  • Article 8 provides for the constitution of Insurance Authority and that it must include one board, director general and executive body.
  • Article 24 states the various forms of companies that are entitled to carry out insurance and reinsurance activities in the UAE.
  • Article 26 of the act talks about the limitations of the insurance companies. It protects the UAE properties from being insured outside the country.

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Conclusion:

In the era of development and globalization, banking and insurance is the basic need of every country around the world for carrying on its activities globally and develop with the competitor countries. As globalization is increasing with an increase in the technology across the globe, the frauds that are taking place has also raised in number especially those dealing with the banking and insurance industry. All people should deal carefully to avoid risks and get insured for any unforeseen event. Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Also one must be aware of the laws governing the insurance and its policies before getting one from the provider in order to get the maximum benefit of it. Insurance and banking sectors have come a long way in India and provides ample services at convinient fee which is accessible by the middle class people of the nation. The comparison of Indian and UAE insurance laws shows that both countries have their own way of functioning but the aim is common of both the countries. Insurance sector has come a long way and it still has a long way to go in future.