Ignorance is ‘no’ bliss: Report cases of child rights violations

Bivash Modi

(modi.bivash@yahoo.in)

The recent incident of a child sexual abuse case by a couple (an educated and affluent family) gives rise to many questions, and as a society, no one of us can evade it. The case is sub-judice; hence, we need to refrain from making comments on the case per se, and we leave it to the honourable court to pronounce the verdict after following the due procedure. This article tries to highlight gaps that lead to breaches of the safety net around children and the measures needed to safeguard them.

CAUSES OF CONCERN: Such cases primarily have two major areas of concern: the first is illegal adoption practice, and the second is that through such illegal adoptions, the child is further exposed to multiple vulnerabilities, including physical and sexual abuse and exploitation.

With the passage of time and from ancient to modern times, every nation, including India, enacted various laws to safeguard its citizens, including children. Independent India passed its first legislation for children in 1986 and enacted the Juvenile Justice Act. It has been amended in the years 2000, 2015, and 2021 to bring in several provisions, including those to ease the process of adoption. The government of India enacted several laws and constituted various statutory organs to implement the laws and safeguard children’s rights.

THE CASES OF ILLEGAL ADOPTION

What constitutes an illegal adoption? First, what is adoption as defined in the law, as per the Juvenile Justice (Care and Protection of Children) Act 2015 and Amended Act, 2021? “Adoption” means the process through which an adopted child is permanently separated from her or his biological parents and becomes the lawful child of her or his adoptive parents with all the rights, privileges, and responsibilities that are attached to a biological child. So, when a child is separated from her or his biological parents without following the prescribed procedures defined in the act, it is an illegal adoption. This can happen through an exchange of money or without the proper consent of the biological parents, through forging documents, kidnapping, abduction, etc. This is a gross violation of child rights and not only risks her or his safety and well-being but also denies lawful rights and privileges like inheritance of property, etc.

Punishment provisions for illegal adoption: As per the JJ (CPC) Act, 2015, and Amended Act 2021, any adoption without prescribed procedures is punishable with imprisonment up to three years, a fine of Rs 1 lakh, or both.

Why is illegal adoption still in practise?

The adoption process: The legal adoption process involves an elaborate process, and it often takes a considerable amount of time to get the process of adoption completed. However, it is one of the best forms of family-based care arrangements that provide a child’s right to live in a family-like environment. These non-negotiable protocols are derived from the JJ (CPC) Act 2015 and are necessary to follow to ensure that the best interest of the child is safeguarded.

On the contrary, an illegal adoption bypasses all these laid-down processes, and people often find it a shortcut method for adoption where illegal means are adopted.

Lack of awareness about adoption-related regulations During the COVID-19 outbreak, we all experienced how social media platforms were flooded with pictures of unaccompanied children with appeals for adoption. This is complete misinformation on how adoption regulation in India works. It flouts the roles of statutory bodies like the CARA at the Centre and the SARA at the State, and along with these, there are Child Welfare Committees (CWC) constituted under the JJ (CPC) Act 2015 that play a pivotal role in the adoption process.

Pandemic and post-pandemic vulnerability: Data shared by the National Commission for Protection of Child Rights (NCPCR) shows that the cases of children who lost either parents or both parents during COVID-19 have gone up, and these children are the most vulnerable lot and are always at increased risk of getting trafficked.

Know the adoption-related legislation: Adoption practises in India are primarily guided by two important legislations: the Hindu Adoption and Maintenance Act (HAMA), 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Amended Act, 2021. HAMA is the statute that governs adoption by Hindus, while the JJ (CPC) Act covers all religions and extends to the whole of India except the State of Jammu and Kashmir.

Getting to know the key institutions It is the key to understanding the adoption process.

Central Adoption Resource Authority (CARA): CARA is a statutory body of the MWCD Department, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.

State Adoption Resource Authority (SARA): The Assam State Government has set up a State Adoption Resource Agency (SARA) for dealing with adoptions and related matters in the state.

Specialised Adoption Agency (SAA): SAA undertakes the functions necessary to facilitate the placement of orphaned, abandoned, and surrendered children in adoption. There are 17 recognised specialised adoption agencies in the state of Assam.

Child Welfare Committee (CWC): The CWC comprises a chairperson and four members and is present in 29 districts of Assam. Of all other responsibilities, the declaration of an orphan, abandoned, or surrendered child as legally free for adoption after due inquiry is a key role mandated to the CWC in adoption procedures.

State Child Protection Society (SCPS): The State Child Protection Society is established as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2021, and is mandated to ensure the implementation of various legislations by coordinating with the State Child Welfare and Protection Committee.

District Child Protection Unit (DCPU): DCPU functions under the direct supervision of the District Magistrate towards ensuring service delivery and the care and protection of children in the district and is functional in 29 districts of the state.

Childline (1098): It is a 24-hour-a-day, 365-day-a-year, free emergency phone service for children in need of care and protection (CNCP) to respond to emergency needs as well as to measure for long-term care and rehabilitation.

Adoption Procedures for Resident Indians: Indian prospective adoptive parents need to apply for adoption on the Child Adoption Resource Information and Guidance System (CARINGS) 3.2 by filling out the online application form.

Illegal Adoption and Child Sexual Abuse:

Safeguard from Child Sexual Abuse: Illegal adoption increases the risk of child sexual abuse. In order to safeguard children, stricter legislation like the Protection of Children from Sexual Offences (POCSO) Act, 2012, has been enacted.

Scope of the POCSO Act: POCSO is a gender-neutral law, and the scope of safeguarding children goes beyond the common understanding of sexual assault.

As per the POCSO Act, sexual assaults have been categorised as penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, and aggravated sexual assault. In cases similar to the recent incident in the state capital, based on media reports, it falls under the Aggravated Penetrative Sexual Assault definition, which is ‘when the alleged perpetrator is living in the same or shared household with the child and commits penetrative sexual assault on a child, it is aggravated penetrative sexual assault.

Punishment provisions for aggravated penetrative sexual assault: rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to a fine.

Other alternative care forms: other than adoption, exploring other options such as

Sponsorship: where the provision of supplementary support, financial or otherwise, to the families to meet the medical, educational, and developmental needs of the child is made

Foster Care: placement of a child by the Child Welfare Committee for the purpose of alternate care in the domestic environment of a family other than the child’s biological family.

Kinship care: Kinship care is the most common form of community-based alternative care in India as well as across the globe.

If someone has information about any child in need of care and protection, it must be brought to their attention by reporting it to either Childline 1098, the Child Welfare Committee, the District Child Protection Officer, or the Assam State Commission for Protection of Child Rights.

We must believe that, irrespective of socio-economic status, no individual is above the law. However, to ensure the violators are held accountable, reporting the cases is very important. Every child has the right to live in a family-like environment. It is our collective responsibility to ensure that all children living without biological parents or living in any other difficult circumstances access a safe and protective environment as set under various laws and policies and lead a healthy life.